O'NEILL v. Morse

Bronson, J.

(dissenting). The development of our constitutional democracy and the constantly evolving legal history of our Bill of Rights guaranteeing “due process” and the “equal protection of the laws” to all persons are not accidental.

Through the years the state and Federal courts, including the United States Supreme Court, have struggled with the meaning of the word “person” as that term is used in the Bill of Rights.

There was a time, early in our nation’s history, when Indians were not regarded as persons, and the courts had to make it plain that indeed Indians were persons, entitled to constitutional guarantees. See 42 CJS, Indians, § 1, p 647; United States, ex rel. Standing Bear, v. Crook (CC Neb, 1879), 25 F Cas 695, 696 (No. 14,891) (5 Dill 453); United States v. Shaw-Mux (D Ore, 1873), 27 F Cas 1045 (No. 26,-268) (2 Sawyer 364); United States v. Miller (D Nev, 1901), 105 F 944.

In another series of eases the courts made it plain that aliens (non-citizens) were “persons” entitled to the protection of the constitutional guarantees. See Marcello v. Ahrens (CA 5, 1954), 212 F2d 830, 837; In re Lee Wee’s Petition (SD Cal, 1956), 143 F Supp 736, 738; United States v. Murff (CA 2, 1958), 260 F2d 610, 614.

In other eases, questions arose as to whether convicts or felons were “persons” entitled to constitutional protection, and the decision was made that a convicted felon, even though civilly “dead” was nevertheless a person entitled to protection under the Fourteenth Amendment. See In re Jones (1962), 57 Cal 2d 860, 862 (22 Cal Rptr 478, 480, 372 P2d 310, 312), and cases cited therein.

Questions also arose as to whether corporations were persons within the meaning of the clauses granting all persons due process and the equal protection of the laws, and our courts decided that they were. See Pembina Consolidated Silver Mining & Milling Co. v. Pennsylvania (1888), 125 US 181 (8 S Ct 737, 31 L Ed 650, 653); Smyth v. Ames (1898), 169 US 466, 522 (18 S Ct 418, 42 L Ed 819); Providence Journal Co. v. McCoy (D RI, 1950), 94 F Supp 186, aff’d. (CA 1, 1951), 190 F2d 760, 764; D. D. B. Realty Co. v Merrill (D Vt, 1964), 232 F Supp 629, 637. See, also, Turnbull v. Prentiss Lumber Co. (1884), 55 Mich 387, 393, and Chicago & N. W. R. Co. v. Ellson (1897), 113 Mich 30, 33.

A labor union has been found to he a “person” within the constitutional meaning of that term. See Penello v. Milk Drivers & Dairy Employees Local Union (D Md, 1957), 156 F Supp 366, 369.

More recently, the United States Supreme Court has made it plain that the guarantees spelled out in our Constitution are not the exclusive property of adults, hut apply to children as well.

In re Gault (1967), 387 US 1, 13 (87 S Ct 1428, 18 L Ed 2d 527, 538), Mr. Justice Fortas, writing for the majority, said: “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.”

If the Fourteenth Amendment and the Bill of Rights protect children and infants, do they not also protect unborn children, such as Baby Boy Pinet, an eight-month-old fetus, made of flesh and hone and blood? Is not such a child equally a “person” along with such inanimate “persons” as corporations and labor unions.?

What is at stake in this litigation is whether Baby Boy Pinet, an unborn child — killed by the wrongful acts of the defendants — was or was not a human being, a “person” entitled to the Constitution’s protections given to all persons in this State and Nation. In LaBlue v. Specker (1960), 358 Mich 558, our State Supreme Court unanimously held that a two-and-one-half-month-old fetus was indeed a “child” or “person” within the meaning of another Michigan statute, the Michigan dramshop law (CDS 1956, §436.22 [Stat Ann 1957 Rev § 18.993]). In LaBlue, the Michigan Supreme Court relied heavily on Williams v. Marion Rapid Transit, Inc. (1949), 152 Ohio St 114 (87 NE2d 334, 10 ALR2d 1051), a decision which held that an unborn child is a “person” within the constitutional provision giving every “person” a remedy for injury done him in his person (see p 563 of LaBlue).

What our Supreme Court appears to have said by its decision in Powers v. City of Troy (1968), 380 Mich 160, is that an unborn child may be a “person” for the purpose of some laws but will not be a “person” for the purpose of other laws.¹ Such a view is less than consistent in keeping with fundamental constitutional guarantees of due process and equal protection of the laws. To say that one may kill some human beings — those who have been born —and be held responsible under the.law, and that one may kill other human beings — those who have not yet been born — and go free, is a denial of equal protection of the laws and ought not to be condoned by any court. A plain reading of the Michigan wrongful death act² makes clear that its primary purpose was to make wrongdoers liable for damages when they killed a “person” through negligence, or negligently inflicted injuries which resulted in death. But such a statute, in order to be constitutional, must apply with equal force to all “persons” who are killed as a result of another’s negligence. The constitutional guarantees of due process and equal protection of the laws should apply to-Baby Boy Pinet, and we should not discriminate'against such a “person” because he is as yet unborn. By denying plaintiff administrator in this case the right to bring this action, the State seems, to sanction the negligent killing of an unborn human being and is providing no redress for such a wrong.

I would reverse the judgment of the trial court, and allow the plaintiff administrator to bring this action.

1 In Powers there are five separate opinions for affirmance and a sixth opinion dissenting. All however:

“* * * [C] online ourselves strietly to the meaning of a 'person’ within the wrongful death act. The assigned Justice, and any Justice signatory hereto, expressly limit the views they here express to the interpretation of the statute which is the subject of judicial construction.”

The Powers Court carefully limited its decision to the question of the statutory construction of the Michigan wrongful death act then in effeet, CL 1948, § 691.581 el seg. (Stat Ann 1959 Cum Supp § 27-,7M el seq.).

The Michigan Supreme Court did not resolve the equal protection arguments in the Powers ease. I feel that the question whether denying the ■ next of kin of a fetus the right to sue under the wrongful death act amounts to a denial of equal protection under the United States and Michigan Constitutions, being one of first impression, is important enough to command an answer. (See discussion infra.)

2 “Whenever the death of a person or injuries resulting in death, shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages * * * ' CLS 1961, § 600.2922 (Stat Ann 1962 Rev § 27.2922). (Emphasis added.)