State Ex Rel. Odham v. Sherman

Henderson, J., delivered the opinion of the Court. This appeal is from a judgment entered upon motion under Rule 502 for the determination of an issue of law prior to trial. In effect, the trial court held that a viable child born dead was not a “person” under Code (1957), Art. 67, secs. 1 and 4 (still known as Lord Campbell’s Act), or under Code (1957), Art. 93, secs. 18 and 112, authorizing actions by administrators. The applicable statutes provide as follows: (Art. 67, sec. 1) “Whenever the death of a person 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, 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 * * (Sec. 4) “Every such action shall be for the benefit of the * * * parent * * * of the person whose death shall have been so caused * * (Art. 93, sec. 18) “Whenever any person shall die intestate, * * * letters of administration may forthwith be granted by the orphans’ court of the county wherein was the party’s mansion house or residence; * * (Sec. 112) “Executors and administrators shall have full power to commence and prosecute any personal action what ¹⁸² ever, at law or in equity, which the testator or intestate might have commenced and prosecuted, * * * provided, that if the death of the testator or intestate shall have resulted from the wrong for which any such personal action might have been commenced, then the executor or adminstrator shall be entitled to recover the funeral expenses of said testator or intestate, not to exceed, however, the sum of one thousand dollars ($1,000.00), in addition to any other damages recoverable in such actions; * * For present purposes the facts conceded are that the mother of the child, while riding as a passenger with the defendant, Sherman, who was driving a car owned by the defendant, Werner, suffered serious injuries as a result of the negligence of the defendants.

Her child, who was a full-term viable child in the ninth month of development, was also injured and was delivered stillborn shortly thereafter. This Court held in Damasiewicz v. Gorsuch, 197 Md. 417 (1951), that a cause of action lay for the negligent blinding of a child en ventre sa mere, when suit was brought after its birth for its prenatal injuries. Since that date, many courts have taken the same view, in some instances overruling prior decisions. See Amann v. Faidy, 114 N. E. 2d 412 (Ill.) (1953).

In 1960, Massachusetts declined to follow the earlier decision by Mr. Justice Holmes in Dietrich v. Northhampton, 138 Mass. 14 (1884). Keyes v. Construction Service Inc., 165 N. E. 2d 912 (Mass.). See also Sinkler v. Kneale, 164 A. 2d 93 (Pa.), and Smith v. Brennan, 157 A. 2d 497 (N. J.), decided in 1960, and Seattle-First National Bank v. Rankin, 367 P. 2d 835 (Wash.) (1962) ; see Notes, 10 A.L.R. 2d 1059 ; 27 A.L.R. 2d 1256 . Some courts have extended the rule to non-viable children, a point we need not here consider.

On the precise point before us, where the child is born dead, there are well considered cases that allow recovery. See Verkennes v. Corniea, 38 N. W. 2d 838 (Minn.) (1949) ; Rainey v. Horn, 72 So. 2d 434 (Miss.) (1954); Mitchell v. Couch, 285 S. W. 2d 901 (Ky.) (1955); Poliquin v. MacDonald, 135 A. 2d 249 (N. H.) (1957); Stidam v. Ashmore, 167 N. E. 2d 106 (Co. Ct. App., Ohio) (1959); Wendt v. Lillo, 182 F. Supp. 56 (D. C. N. D. Iowa) (1960) ; Hale v. Manion, 368 ¹⁸³ P. 2d 1 (Kan.) (1962); Gorke v. LeClerc, 181 A. 2d 448 (Super. Ct., Conn.) (1962). See also Valence v. Louisiana Power & Light Co., 50 So. 2d 847 (Orleans Ct. App., La.) (1951), and Morgan v. Greggo & Ferrara, Inc., 128 A. 2d 557 (Super.

Ct., Del.) (1956). There are cases to the contrary, notably in New York. In re Logan’s Estate, 156 N. Y. S. 2d 49 (Surr. Ct.) (1956), aff’d, 156 N. Y. S. 2d 152, aff’d 3 N. Y. 2d 800, 144 N. E. 2d 644 .

In that case, however, the child was not viable. Nor was it viable in the cases of Mace v. Jung, 210 F. Supp. 706 (D. C. Alaska), or West v. McCoy, 105 S. E. 2d 88 (S. C.). But see In re Scanelli, 142 N. Y. S. 2d 411 (Surr. Ct.) (1955), and Muschetti v. Pfizer & Co., 144 N. Y. S. 2d 235 (Co. Sup.

Ct., 1955). See also Keyes v. Construction Service, Inc., supra (Mass.). To the same effect, but upon widely different reasoning, see Drabbels v. Skelly Oil Co., 50 N. W. 2d 229 (Neb.) (1951); Howell v. Rushing, 261 P. 2d 217 (Okla.) (1953); Hogan v. McDaniel, 319 S. W. 2d 221 (Tenn.) (1958). Cf.

Durrett v. Owens, 371 S. W. 2d 433 (Tenn.). Recovery has been allowed under a statute dealing with “homicide” in Georgia. Porter v. Lassiter, 87 S. E. 2d 100 (1955) (cert. den. Ga.

Sup. Ct.). It has been denied by construction of the statutes in California. Norman v. Murphy, 268 P. 2d 178 (D. Ct. App., Calif.) (1954).

See also Note, 10 A.L.R. 2d 639 . The authorities and various reasons for granting or denying recovery are discussed in an article in 110 U. Pa. L. Rev. 554 , 556. We think the decision of this Court in Damasiewicz is virtually controlling here.

We there recognized that, at least in the case of a viable child, such child had a cause of action when born alive, arising out of a prenatal injury due to the negligent act of a third person. The cause of action arose at the time of the injury and we see no more reason why it should be cut off because of the child’s death before birth, than if it died thereafter. The wrongful act would have entitled the “party injured to maintain an action * * * if death had not ensued,” and under the plain words of the death statute we think the action survives, or permits the parents to recover, notwithstanding the death of the child. The holding in Damasiewicz was that the cause of action ex ¹⁸⁴ isted at common law under the facts there presented.

Although the point had not been decided previously in Maryland, under the accepted theory the cause of action had been available all along and was in existence when Lord Campbell’s Act was enacted in 1852. But even if the holding in Damasiewics had been effective only as a prospective change in the law, it would still be included within the scope of Lord Campbell’s Act. We have held that a right conferred upon a sister under the Workmen’s Compensation Act gave rise to an action under Lord Campbell’s Act, even though it was not mentioned therein and could not have been in the contemplation of the Legislature when Lord Campbell’s Act was enacted. See Storrs et al. v. Mech et al., 166 Md. 124, 129 ; Cf.

Taylor, et al. v. State, use of Mears, et al., 233 Md. 406 . See also State v. Nabella, 176 F. Supp. 668 (D. C. Md.). What is true of Lord Campbell’s Act is also true of the statute allowing the child’s cause of action to survive and be litigated by an administrator. Both statutes are remedial and designed to close a gap in the preexisting law.

See Van Beeck v. Sabine Towing Co., 300 U. S. 342, 350 . It is argued, however, that even if the word “person” in the statute includes a viable child, and the weight of present authority is in favor of recovery, the right of recovery on the part of the unborn child is conditioned upon its being born alive. It is true that some of the cases speak of the child’s “being born alive.” In Damasiewicz (p. 441), Chief Judge Marbury said: “The law itself deals with rights, and since we now know that a child does not continue until birth to be a part of its mother, it must follow that as soon as it becomes alive it has rights which it can exercise.” We think this language was not intended to impose a limitation or condition of birth. The wrongful act took place before birth and gave rise to a cause of action at that time.

Cf. Redfern v. Holtite Mfg. Co., 209 Md. 106, 111 . Naturally a new born babe could not exercise the rights previously acquired, in proper person, since it is under a disability.

Nor could a child en ventre sen mere exercise such rights. In either case, however, we think the right to damages for the wrong could be exercised on behalf of the child by its next friend, and such rights survive to its parents or administrator. The appellees rely heavily upon a statement from 2 Harper ¹⁸⁵ & James, Torts, p. 1031: “Few cases have allowed separate recovery where the child is not born alive, [footnote omitted] and perhaps this is the fairest and most practical place to draw the line. It, too, would make arbitrary distinctions — as between the child killed just before delivery and one who dies just after - — but this sort of thing will be encountered wherever there must be a borderline.” We think the weight of present authority draws the line at least at a point where the common law concept of viability is in effect.

We think the argument of practical convenience is not a proper test. Judgment reversed and case remanded for further proceedings, costs ta abide the result. Gray, J., specially assigned, filed the following dissenting opinion, in which Prescott and Marbury, JJ., concurred. This appeal involves a challenging question of whether the parents of a stillborn child can maintain an action under Lord Campbell’s Act for their financial loss resulting from the fatal injuries to the child through the alleged negligence of the defendants.

There is also the collateral question of whether the personal representative of the child may also recover for its funeral expenses. The majority opinion is predicated upon the determination that a viable child is a “person” within the meaning of the statutes authorizing recovery in these types of cases. This seems to me to be an over-simplification of the problem and I cannot concur therein. In the solution of this matter we can expect scant help from the English common law because until Lord Campbell’s Act, an action of this type died with the victim.

There were many purposes, however, for which the common law recognized an infant en ventre sa mere as having rights and being subject to the jurisdiction and protection of the courts. The most commonplace such situation is where an infant born posthumously to a testator or an intestate takes property from such decedent. However, the universal rule was that such ability to take was. contingent upon the child being born alive. Is it the effect of the majority opinion that a viable child may be a conduit for prop ¹⁸⁶ erty even though stillborn?

Of course, this factual situation is not involved in the pending case but it certainly can be contended that this is the effect of the present decision, deciding as it does that a viable child is a person and capable of transmitting rights to its parents even though never born alive. At the threshold of this case we must recognize the fact that a suit involving damages for the death of a stillborn infant projects us into a whole new area of uncertainty. It is manifestly impracticable for anyone to know to what extent, if any, the child may be impaired. Many infants are born with disabling defects, especially in the field of mental development, such as epilepsy, hydrocephalic impairment or arrested mental development.

To allow recovery by the parents with respect to the unknown quantity of the financial value to the parents of the life of such a child is, I think, to: speculate beyond reason concerning its loss, for it is obviously impractical for anyone to know the potential of a child that never breathed. It seems to me that plaintiffs’ claim in this case may be decided upon the actual terms of Lord Campbell’s Act. This statute permits an action “whenever the death of a person shall be caused by wrongful act * * * and the act * * * is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, 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 * * This action is prosecuted upon the theory that the child’s mother became involved in an automobile accident through the negligence of the defendants and that in this accident the child was injured and thereupon died. Some time thereafter the child was delivered stillborn.

The saving clause of Lord Campbell’s Act is "if death had not ensued”. If in this case death had not ensued the infant could not, while en ventre sa mere, bring an action for damages for the injuries sustained. The cause of action accrued at the time of the accident and as the child could not then maintain the action, it seems to me that such action would not revive or survive to the child’s parents when after birth it was found that the child was dead. The majority opinion regards the case of Damasiewicz v. Gor ¹⁸⁷ such, et al., 197 Md. 417 , as “virtually controlling” in this case; I do not so regard it.

In that case the child had been injured through a tort while en ventre sa mere. After birth a suit was instituted through a next friend and a judgment for the defendants on demurrers was reversed. This was a landmark case and I do not quarrel with the result. Here was a child condemned to perpetual blindness through the negligence of another, while being carried in his mother’s womb.

To have held that he could not recover for his injuries would, I think, have been a monstrous thing. It will be noted in the Damasiewicz case that the right of the child to maintain the action was contingent upon its being born alive. There must be a line of demarcation somewhere and it seems to me far more logical and reasonable to draw that line at birth. The Damasiewicz case involved a viable child, as does the case now at bar, but there are many categories of deformity which have their origin relatively soon after conception.

Are we to permit a Lord Campbell’s Act suit where a miscarriage occurs because of some trauma or malpractice in the third month of pregnancy or a suit by an infant after birth because of deformity resulting from negligent action during the third month? I suggest that the majority decision opens a whole “Pandora’s box” of ills. The Damasiewicz case made it crystal clear that there would have been no cause of action but for the fact that the infant was born alive and had sustained permanent injuries by reason of the alleged negligence. I can find no justification for predicating the recovery in this case upon Damasiewicz and at the same time completely abandoning the condition subsequent that the child must be born alive.

The whole theory in Damasiewicz was that the child had suffered a trauma through the negligence of another which had resulted in its blindness and that when it became able to maintain a suit it might thereupon do so. I do not regard Damasiewicz as a safe precedent for permitting a recovery in this action. As indicated in the majority opinion the recent authorities in the United States seem to be in a state of flux. There are, however, as conceded by the majority opinion, well considered cases in which the right to sue with respect to the injury to a stillborn child, is denied.

Among the courts which have so decided are those of Massachusetts ¹⁸⁸ and New York. There are other such cases for which see a note in 10 A.L.R. 2nd, 639, and an article in the 110 Pennsylvania Law Review 554. However, I prefer to rest my views upon the reasoning set forth above rather than to predicate it upon a plebiscite of the current decisions. The same reasoning applies to the administrator’s claim for funeral expenses.

Moreover, the father of the child is charged with the responsibility for its funeral expenses and is entitled to reimbursement therefor as a part of any judgment procured by him against the tort feasor in connection with the injury to his wife. I would affirm the judgment below. Judges Prescott and Mar-bury have authorized me to say that they concur in this dissent. Prescott, J., filed the following concurring dissent, in which Marbury, J., concurred.

I fully concur in the able dissenting opinion of Judge Gray, and, as the precise point decided by the majority is one of first impression in this Court, I desire to add thereto. The complexities in our law created by the majority holding are real and varied, and they will, in all probability, be with the bench and bar of this State for many years — each year bringing forth new and complicated problems. Apart from the purely speculative nature of the damages recoverable and the highly sensitive “opinions” of experts as to when an unborn child becomes viable (cf. Prosser, Law of Torts (2nd ed.)) there will follow as “the night the day” alleged differences created by this holding in our testamentary, inheritance and criminal laws. Also, we shall soon face the question of injury to an unborn child, who is not viable, as some States already have.

The present case load in our Court will not permit the preparation of a comprehensive consideration of the question involved, so, after several short observations, I shall adopt Judge Allen’s opinion in the court below as my concurring dissent. I am in full accord with the decision in Damasvemcz, and feel it named and stopped at the proper borderline. The majority opinion cites some eleven cases, which were decided by courts ¹⁸⁹ ranging from a one judge lower court in Delaware to Courts of last resort (only five or six of the cases being decided by Courts of last resort). Several of these cases specifically assert that the holdings therein are the “minority” view.

For instance in the Stidan case, a three-man divided intermediate Ohio court said: “It would be futile to reconcile the varied and conflicting decisions in different States upon the question of the existence of any right of action for injury to an unborn child. Ohio is committed to the minority view (italics added) recognizing such right.” And it is generally considered that the view adopted by the majority is the minority rule. See 16 Am. Jur., Death, § 75, wherein it is stated: “Although there is authority to the contrary, the weight of authority (italics added) supports the rule that, in the absence of a 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.” See also 25 C.J.S., Death, § 24, and compare annotation, Action for Death of Unborn Child, 10 A.L.R. 2d 639 ; Restatement, Torts, § 869; Prosser, Law of Torts (2nd ed.) p. 175. On the other side of the picture, some ten states have decided that a recovery under the circumstances here involved would be improper, and another has also indicated that the child must be born alive in order for the action to lie (Daley v. Meier, 178 N. E. 2d 691 [Ill.]). Norman v. Murphy, 268 P. 2d 178 (Cal.); Keys v. Construction Service, Inc., 165 N. E. 2d 912 (Mass.) ; Drabbels v. Skelly Oil Co., 50 N. W. 2d 229 (Neb.); In re Logan’s Estate, 4 Misc. 2d 283, 156 N. Y. S. 49, 3 N. Y. 2d 800, 144 N. E. 2d 644 ; In re Scanelli, 142 N. Y. S. 2d 411; Muschetti v. Charles Pfizer & Co., 208 Misc. 870 , 144 N. Y. S. 2d 235; Howell v. Rushing, 261 P. 2d 217 (Okla.) ; Hogan v. McDaniel, 319 S. W. 2d 221 (Tenn.) ; Shousha v. Matthews Drivurself Service, Inc., 358 S. W. 2d 471 (Tenn.) ; Stanford v. St. Louis-San Francisco Ry., 108 So. 566 (Ala.); Newman v. City of Detroit, 274 N. W. 710 (Mich.); LaBlue ¹⁹⁰ v. Specker; 100 N. W. 2d 445 (Mich.); Gorman v. Budlong, 49 A. 704 (R. I.) ; Magnolia Coca Cola Bottling Co. v. Jordan, 78 S. W. 2d 944 (Texas). The latest case on the precise point herein involved is Durrett v. Owens, 371 S. W. 2d 433 (Tenn.), decided October 11, 1963, wherein the Supreme Court of Tennessee, after having previously held just as this Court did in Damasiewicz, specifically held that no recovery could be had under the Wrongful Death Statute for injuries to a child en ventre sa mere unless the child were born alive.

The majority reject this formidable and respectable line of authorities and the many others which hold that no right of action whatever accrues for prenatal injuries to a child, and adopt for Maryland by judicial decision what is still the minority rule. I deplore a holding which states that a child en ventre sa mere may institute, by its next friend, a suit in the courts of this State before birth, because, among other reasons, if it be desirable to take such an unusual step, I think it should be done by the Legislature and not by the Court of Appeals. Judge Allen’s opinion, with deletions for the sake of