Stidam v. Ashmore ( 1959 )

I respectfully differ from my associates on the application of the law to the facts in this case.

The question presented is: Does the personal representative of an unborn viable child, who later was stillborn and who died as a result of injuries suffered by the mother and child by reason of the negligence of a third person, have an action for wrongful death against such third person? The court below answered in the negative.

Plaintiff states her position as follows:

"An unborn viable child may bring an action for personalinjuries inflicted while en ventre sa mere after birth, for the reason that a viable child is a person within the meaning of Section 16, Article I of the Ohio Constitution.

"If an unborn viable child is a person and could bring an action for injuries if he survived, then the wrongful death statute 2125.01, Revised Code, clearly creates a new cause of action for the benefit of decedent's next of kin.

"``Next of kin' is a generic term and must be interpreted in the light of its intended use."

The position of defendant has been summarized as follows: Because the court has no jurisdiction of the subject of the action, because the plaintiff is improperly appointed and has no legal capacity as such, and because no cause of action is stated in the petition, the judgment of the Common Pleas Court should be affirmed.

The plaintiff cites the wrongful death statute, which is Section 2125.01, Revised Code, and which in part provides:

"When the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injuredto maintain an action and recover damages if death had notensued, * * * the person who would have been liable if death had not ensued * * * shall be liable to an action for damages, notwithstanding the death of the person injured * * *." (Emphasis ours.)

Plaintiff contends that this statute must be interpreted in light of the existing law and cites the case of Williams, anInfant, v. Marion Rapid Transit, Inc., 152 Ohio St. 114,87 N.E.2d 334, the syllabus of which reads as follows:

"1. Section 16 of Article I of the state Constitution, requires that ``all courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.'

"2. Injuries wrongfully inflicted upon an unborn viable child capable of existing independently of the mother are injuries ``done him in his * * * person' within the meaning of Section 16, Article I of the Constitution and, subsequent to his birth, he may maintain an action to recover damages for the injury so inflicted."

The plaintiff reasons that because of the ruling of the court in the Williams case the plaintiff's right to bring an action for wrongful death is clearly embraced in the words of the wrongful death statute wherein it provides that "the person who would have been liable if death had not ensued * * * shall be liable to an action for damages, notwithstanding the death of the person involved * * *." The distinction between the Williamscase and the case at bar is a vital one, and is this: In theWilliams case the injured unborn viable child was later born alive and brought an action for damages for injuries suffered before birth; in the case at bar the injured unborn viable child was never born alive. The court in the Williams case, in distinguishing that case from the case of Dietrich, Admr., v.Inhabitants of Northampton (1884), 138 Mass. 14, 52 Am. Rep., 242, where the child showed some life for 10 or 15 minutes after birth and the court denied a wrongful death action brought by the administrator of such child, said on page 128:

"In the Dietrich case one test imposed was, ``whether an infant dying before it was able to live separated from its mother could be said to have become a person recognized by the law as capable of having a locus standi.' Let us be reminded that in the instant case we are dealing with a viable child, one capable of living and which demonstrated its capacity to survive by surviving."

In the main the rationale of the opinion in the Williams case has little or no application to the facts in the case at bar. Neither does the case of Jasinsky, Admr., v. Potts, 153 Ohio St. 529, 98 N.E.2d 809, furnish a precedent, for in that case, while the court recognized a cause of action for wrongful death resulting from prenatal injuries to a viable child, the child was born alive and died three months after birth.

Due recognition is given to the rule stated in theWilliams case, that a child en ventre sa mere is consideredin esse relative to the succession of property for every purpose for the benefit of the child; 28 Ohio Jurisprudence (2d), 541, 542, Section 3. This rule is only applied where the benefit and interest of the child will thereby be promoted. Thus the child must be born alive to secure the benefits of this rule. This rule does not extend to a stillborn child. Furthermore, an action for wrongful death cannot benefit the deceased child; such action is for the benefit of others.

Section 2125.01, Revised Code, provides that an action for wrongful death may be brought when the deceased person would have been entitled to bring a personal injury action if death had not ensued. This statute contemplates a factual situation giving rise to a right of action for personal injury before death of the person injured. The test is: Could the deceased have brought an action for personal injury a moment prior to death? In the instant case the stillborn child could not have brought an action for personal injuries. The essential factual situation being nonexistent, a right of action for wrongful death is not authorized.

Section 2125.02, Revised Code, in part provides:

"An action for wrongful death must be brought in the name of the personal representative of the deceased person, but shall be for the exclusive benefit of the surviving spouse, the children, and other next of kin of the decedent."

Do the words, "deceased person," as used in the above section, include a stillborn infant? I think not. A distinction must be made between an action brought for the benefit of the child, and an action for the benefit of the next of kin. The former action existed at common law, the latter was created by statute. Since an action for wrongful death was unknown at common law, and being wholly statutory in origin, it must stand or fall by the terms of the statute under which recovery is sought. Unless the statute expressly confers the right of action, none exists. The wrongful death statute, being in derogation of the common law, must be construed strictly. 37 Ohio Jurisprudence, 728, Section 408.

Is a stillborn child a "person" within the meaning of Section2125.01, Revised Code, or a "deceased person" within the meaning of Section 2125.02, Revised Code? I do not think so. The "person" and "party injured" refer to a living person. The "person" must be born alive and later die as the result of injuries suffered either before or after birth. The facts in the case of Drabbels, Admr., v. Skelly Oil Co. (1951), 155 Neb. 17,50 N.W.2d 229, are similar to the facts in the case at bar. In that case the court held:

"1. A child born dead cannot maintain an action at common law for injuries received by it before its birth.

"2. Since no cause of action accrues to a child born dead for prenatal injuries, none survives to the personal representative under the wrongful death statute."

Our own Supreme Court in the Williams case, supra (152 Ohio St. 114), in commenting on the Dietrich case, made a significant statement which, although obiter dictum, has application to the set of facts in the instant case, in determining whether the action is one which falls within the wrongful death statute. On page 120 the court said:

"The significant fact, however, is that the child could not survive and no right of action therefore accrued to the child, which could survive in favor of the child's representative."

An action for wrongful death is brought in the name of the personal representative of the deceased person. Can there be a personal representative for a stillborn child? Is it within the contemplation of the statute controlling the issuance of letters of administration by the Probate Court that an administrator may be appointed for a child which was stillborn? Section 2113.01, Revised Code, in part provides:

"Upon the death of a resident of this state intestate, letters of administration of his estate shall be granted by the Probate Court of the county in which he was a resident at the time he died."

The examination of this and other related sections contemplates the decease of a living person capable of owning, holding, conveying and passing property, either by will or under the laws of descent and distribution. By the same process of reasoning, a stillborn child cannot have "next of kin" within the meaning of the wrongful-death statute.

These same questions were presented to the court in the case of Hogan v. McDaniel (1958), — Tenn., — , 319 S.W.2d 221, 15 Auto. Cas. (2d), 1125, and were resolved against the right to bring an action for wrongful death of an unborn viable child. The court ruled that an unborn viable child is not a "person" within the meaning and contemplation of the wrongful death statute.

The question presented here is the subject of annotation in 10 A. L. R. (2d), 639, under the topic "Action for Death of Unborn Viable Child." The majority rule is stated on page 640 as follows:

"Although cases concerning the right to maintain an action for the wrongful death of an unborn child are few in number, the question as to the right to recover for the loss of a child has arisen in several cases involving actions for personal injuries resulting in a miscarriage. While such injuries are actionable, and compensation may be awarded for the physical and mental sufferings occasioned by the miscarriage, it is generally held that recovery cannot be had for the death of the unborn child. To this effect see the following cases: [Here are enumerated cases from the United States courts and specific cases from 14 different states.]"

In 25 Corpus Juris Secundum, 1087, Section 21, it is stated:

"* * * An expectant mother sustaining personal injuries as a result of which her child is born dead, has no cause of action for the death of the child, the child not being regarded as a person until born alive."

In 16 American Jurisprudence, 56, Section 75, the rule is stated as follows:

"Although there is authority to the contrary, the weight of authority supports the rule that, in the absence of statute, a prenatal injury affords no basis for an action for wrongful death by the parents or personal representative of the child. This is true where the statute giving a right of action for wrongful death is construed as conferring such right only where the injured person could himself have maintained an action for damages had he lived, and a child so injured is regarded as having no right of action." (Cases cited in footnote.)

Research on this subject discloses that the majority rule is followed in 15 jurisdictions, and the minority rule in two jurisdictions. I am constrained to adhere to the majority rule which holds that there can be no recovery for the wrongful death of a child which is afterwards stillborn. Any change in the law should come by legislative action and not by judicial decision.

In my opinion the trial court had no jurisdiction of the subject matter; the plaintiff had no legal capacity to sue, and the petition did not state facts sufficient to constitute a cause of action. The judgment should be affirmed.