(dissenting).
I dissent.
Plaintiff sued defendants in four counts. Count I was stated in negligence and malpractice in which plaintiff sought damages in the amount of $100,000.00 because plaintiff’s viable fetus was born dead. Count II sought recovery of a pecuniary loss in the sum of $300,000.00 to the fetus’ estate caused by wrongful death of the fetus. Count III sought damages to plaintiff in the sum of $100,000.00 for medical malpractice, and Count IV sought $300,000.00 damages for medical malpractice which caused the death of the fetus.
Counts II and IV were dismissed with prejudice for failure to state a claim upon which relief could be granted. The judgment should be affirmed.
We are confronted with a matter of first impression.
A. Introduction.
The judicial controversy surrounding the validity of a claim for wrongful death of an unborn child is prevalent in the United States. The cases are collected in Annot. Right to Maintain Action or to Recover Damages for Death of Unborn Child, 84 A.L.R.3d 411 (1978).
Law review articles, notes and comments are plentiful: Reilly, Torts-Wrongful Death-a Viable Fetus is a “Person” for Purposes of the Rhode Island Wrongful Death Act, 46 University of Cincinnati L.Rev. 266 (1977); Houk, Torts-Wrongful Death-Right of Action for the Wrongful Death of a Viable Fetus in Tennessee-Recent Decision and Statutory Response, 45 Tenn.L.Rev. 545 (1978); Hartye, Tort Recovery for the Unborn Child, 15 Journal of Family Law, 276 (1976-77); Cherken, Jr., Torts-Wrongful Death-Recovery for Wrongful Death of a Stillborn Fetus Examined, 21 Villanova L.Rev. 994 (1975-76); Denton, Torts: Recovery for Prenatal Injury and the Wrongful Death of a Stillborn Fetus, 8 Tulsa L.J. 84 (1972); Maledon, The Law and the Unborn Child: The Legal and Logical Inconsistencies, 46 Notre Dame Lawyer 349 (1971); Miller, No Recovery for Injury to a Viable Fetus which is Stillborn, 36 Ins. Counsel J. 92 (1969); Gordon, The Unborn Plaintiff, 63 Mich.L.Rev. 579 (1965); Del Tufo, Recovery for Prenatal Torts: Actions for Wrongful Death, 15 Rutgers L.Rev. 61 (1960); Torts-Wrongful Death-Unborn Child, 70 Mich.L.Rev. 729 (1972); Segal, Wrongful Death and the Stillborn Fetus-A Current Analysis, 7 Houston L.Rev. 449 (1970); Norman, Torts: Prenatal Injuries-Viability and Live Birth, 21 Okla. L.Rev. 114 (1968); Wenger, Developments in the Law of Prenatal Wrongful Death 69 Dickinson L.Rev. 258 (1965); Muse-Spinella, Right of Infant to Recover for Prenatal Injury, 36 Va.L.Rev. 611 (1950), and many more.
Gordon, supra, set the stage for the intense judicial controversy that exists today. He wrote:
To Religion and Medicine, life begins at conception; but to Law legal personality begins only at birth. This jurisprudential concept is the origin of much of the difficulty. [Id. 581.]
Law requires some definitive clear cut lines, particularly one which heralds the beginning of legal personality. [Id. 593.]
Strong disagreement exists between courts of different states and between members of many courts of each state. Disagreement began in the 20th century and views have changed. Erudition, wisdom and analysis are found in opposing views.
Courts which grant a right of action to a representative for the death of an unborn child have redefined the word “person” as commonly understood in the 19th century when wrongful death statutes were enacted. Through the biological process, a “person,” “child,” “minor child” was held to include a viable fetus which had a separate existence of its own. By a legal fiction or indulgence, a legal personality was imputed to an unborn child by medical science because birth is an artificial and unreasonable demarcation of a right of action.
Opposing views prefer legislative enactments that amend the wrongful death statute to include “fetus, viable fetus or unborned child.”
Were amendments of this nature enacted in the States of the Union, the controversy would end. In the conclusion of the Villa-nova Law Review article, supra, Cherken, Jr., wrote:
... It is submitted that the word “person” should be deleted from the wrongful death statutes and replaced by the phrase “fetus, infant or adult.” Such an expansion would comport with the view that there are protected interests in potential life which exist throughout the various stages of human development prior to birth, and would bring clarity and consistency to this turbulent area of tort law. [Id. 1005.]
In 1978, Tennessee amended its act. Pub. Acts, ch. 742; § 1:
“For purposes of this section, the word ‘person’ shall include a fetus which was viable at the time of injury. A fetus shall be considered viable if it had achieved a stage of development wherein it could reasonabley [sic] be expected to be capable of living outside the uterus.”
In 1917, the Missouri Children’s Code Commission proposed the adoption of a provision for recovery of prenatal injuries but the proposal was not adopted by the Missouri legislature. Gordon, supra, [p. 586].
Whether judicial legislation is preferable to legislative enactment is the controlling factor in this interminable dispute. Judicial legislation is subject to change by the courts. Legislative enactment is subject to change by the representatives of the people.
A “person” is a living human being in esse. A “fetus” is a developing human being in posse which means “that which is not, but may be.” “A child before birth is in posse; after birth, in esse.” Black’s Law Dictionary, p. 894 (Rev. 4th Ed. 1968).
Whether a right of action should be granted an unborn child is a legislative function, not a judicial function. By use of the judicial function, we create an illusion of the kind of law which we desire to have rather than what the law is as enacted by the legislature. For that reason, we have strong, consistent disagreements with reference to the right of action in an unborn child.
Strong reasons of public policy have been urged for and against allowing the new right of action. But those reasons which have suggested a right of recovery do not so far outweigh those which deny the right as to call for judicial legislation on the question.
B. Historical perspective.
History is a teacher that is not to be ignored.
Our wrongful death statutes were enacted in 1882. Prior thereto, the territorial legislature had knowledge of “Offenses Against Lives and Persons” enacted under Chapter III, Art. 28 of the Laws of 1853-54. Sections 10 and 11 included criminal offenses relative to an “unborn infant child” and “quick child.” The legislature knew of prenatal criminal law in which an “unborn infant child” and “quick child” were included within the meaning of “Person.” When the wrongful death statutes were enacted, the legislature omitted any reference to an “unborn child.” It used terminology such as “deceased person,” “child or children of the deceased child,” “minor and unmarried,” and “deceased has reached the age of majority and is unmarried.”
In 1884, Justice Holmes wrote the opinion in Dietrich v. Northampton, 138 Mass. 14, 52 Am.R. 242 (1884). A woman four or five months pregnant was delivered of a child which survived but a few minutes after an accident. The child was held not to be a “person” within the statute that gave an administrator a cause of action for negligent death. The infant child did not have a Locus Standi in court. This conclusion could not be affected by showing that such an infant child was within the protection of the criminal law. Dietrich was decided without precedent.
Our wrongful death statutes were amended in 1884 and 1891. With knowledge of the civil and criminal law of the time, the legislature continued to omit any reference to an unborn child. For 96 years, no case involving a right of action for the negligent death of an unborn child reached the New Mexico courts.
The first dispute over this subject matter began in 1900. Allaire v. St. Luke’s Hospital, 184 Ill. 359, 56 N.E. 638 (1900). Justice Boggs strongly dissented based upon medical science, skill and experience that the viable fetus is a body separate from the mother. For the next 79 years, acrimonious opinions were issued by a majority of the appellate courts of the country. Our legislature did not change its wrongful death statutes.
“Our wrongful death statutes were taken from Missouri and this court has often followed the views of the Missouri Supreme Court in its interpretation of these statutes.” Langham v. Beech Aircraft Corporation, 88 N.M. 516, 520, 543 P.2d 484 (1975). We should do so again.
The first Missouri case appears to be Finer v. Nichols, 158 Mo.App. 539,138 S.W. 88S (1911) in which the court held that in an action for injuries to a married woman resulting from a miscarriage, loss of the anticipated society of the prospective child and mere matters of sentiment in connection therewith were too remote to form a proper element of damage. In the course of its opinion, the court quoted at length from 1 Joyce on Damages, § 185. The following is a portion thereof:
“Where the miscarriage results in loss of prospective offspring, it would seem that the better reasoning would support the conclusion there can be no recovery for such loss. [Id. 892.]
Buel v. United Rys. Co. of St. Louis, 248 Mo. 126, 154 S.W. 71 (1913) involved the penalty portion of the wrongful death statute. The court held that the parents could not recover for the death of a child after birth resulting from negligent injuries to it before birth, while the mother was enceinte. Buel was overruled in Steggall v. Morris, 363 Mo. 1224, 258 S.W.2d 577 (1953). Steggall held that where a viable child suffered injuries before birth, was born alive and later died as a result of the injuries, the parents could recover from the tort-feasor for the child’s death. A child born was a “person.”
Finally, in State ex rel. Hardin v. Sanders, 538 S.W.2d 336 (Mo. 1976), the court held that until there has been a live birth, a fetus is not a “person” within the meaning of the Wrongful Death Act. The court said:
... We think the legislature in enacting the original act and subsequent revisions did not intend to create an action for the death of a fetus never born alive. In view of the common law rule that an unborn fetus was not a “person” we think if there had been an instruction to create such an action it would have been specifically so stated. It also seems significant that in giving the right of recovery to the parents the statute used the phrase “if the deceased be a minor and unmarried.” The words “deceased,” “minor” and “unmarried” are words that usually, if not always, refer to one who has had some period of life after birth. [Emphasis added.] [Id. 338-9.]
Section 41-2-3, N.M.S.A.1978 provides for distribution as follows:
First .... if such deceased be a minor, childless and unmarried, then to the father and mother, who shall have an equal interest in the judgment .... [Emphasis added.]
. Of course, courts that desire to create a right of action in an unborn child have no difficulty in translating “minor child” to include a viable fetus. Moen v. Hanson, 85 Wash.2d 597, 537 P.2d 266 (1975). Whether the Moen opinion would be affected if the Washington statute read “a minor child unmarried” is a matter of speculation.
The district judge relied on Hardin. I agree.
Prom this historical perspective, we should have no hesitancy in following the views of the Missouri Supreme Court.
C. A right of action does not exist as a result of the death of an unborn child under the wrongful death statute.
At the beginning of this century, the Supreme Court held that the administrator of an estate lacked the right to file a complaint under the wrongful death statute. Romero v. Railroad, 11 N.M. 679, 72 P. 37 (1903). The court said:
. .. Counsel for appellant contends that this statute is remedial in its nature, and should be liberally construed, but, without concurring in the views of counsel, it is proper to say, that there can be no liberality indulged as would authorize the court in the name of construction to change the plain terms of an unambiguous statute, so as to provide a remedy which under the statute does not exist. [Emphasis added.] [Id. 687, 72 P. 37.]
Where the terms of a statute are plain and unambiguous, there is not room for construction. Hendricks v. Hendricks, 55 N.M. 51, 226 P.2d 464 (1950). The court said:
It seems too plain for argument that the effort here made is to have us accomplish by judicial construction what in other states has been deemed a proper subject of legislative enactment. ... If a change such as that indicated be needed the legislature and not the courts is the place to go for it. [Id. 66, 226 P.2d 464.]
It has been repeatedly said that statutory words are to be used in their ordinary and usual sense unless the contrary is apparent: State ex rel. Bird v. Apodaca, 91 N.M. 279, 573 P.2d 213 (1977); The words “person, child, children, minor child not married,” are common or popular words which should be understood in the popular sense. They mean, in sum, a live human being, not an unborn child.
Courts which create a new right of action travel the medical route. They say a viable fetus is a person because it has been put into existence separate from its mother by medical science. To me, “medical existence is not legal existence.” Neither can the medical profession create a right of action at law. A seed planted in the earth that grows to the surface and dies cannot become a mighty oak. For serious medical problems involved, see Gordon, supra.
I agree with those courts and dissenting opinions of recent date which hold that there is no common-law right of action for tortious killing of a human being; that at common law, an unborn child was not a “person”; that statutes are not to be construed as affecting any change in the common law beyond that which is clearly indicated; that, if possible, statutory enactments should be construed by courts as consistent with the common law; that “person” is clear and unambiguous in its noninclusion of a viable fetus*.and that it is a matter for the legislature to expand the statutory definition if it deems it appropriate, not the court. Kilmer v. Hicks, 22 Ariz.App. 552, 529 P.2d 706 (1974); Presley v. Newport Hospital, 117 R.I. 177, 365 A.2d 748 (1976), 84 A.L.R.3d 391 (1978), Justice Kelleher, dissenting; State ex rel. Hardin, supra; Justus v. Atchison, 19 Cal.3d 564, 139 Cal.Rptr. 97, 565 P.2d 122 (1977); Stern v. Miller, 348 So.2d 303 (Fla.1977); Hamby v. McDaniel, 559 S.W.2d 774 (Tenn.1977); Egbert v. Wenzl, 199 Neb. 573, 260 N.W.2d 480 (1977).
Additional serious problems arise which caution us to avoid judicial legislation such as proof of damages, pecuniary injury, problems of double recovery, U.J.I. Instructions, medical knowledge related to the certainty of the time of viability.
With reference to damages for wrongful death, let us review U.J.I. 14.17 except item (1). Stang v. Hertz Corporation, 81 N.M. 348, 467 P.2d 14 (1970).
Compensatory damages are not fixed for the loss of life itself but for the loss of pecuniary benefits expected from the continued life of the deceased. In arriving at the amount,' “deduction must be made from gross earnings or earning capacity, if any, to cover income taxes, social security taxes” and any other taxes “before the family could expect any pecuniary benefits from the deceased.”- The jury should consider proof as to age, learning capacity, health, habits and probable duration of life.
To apply this measure of damage to an unborn child would require expert testimony based upon factors from which no evaluation can be made except by way of speculation and possibility. The reasonable expectancy of a pecuniary loss must be grounded on reasonable continuous past acts or conduct of deceased. Rival v. Atchison, Topeka and Santa Fe Railway Co., 62 N.M. 159, 306 P.2d 648 (1957). To allow the jury to speculate and resort to conjecture in the future to prevent an unjust result is sentimental, not legal reasoning. Perhaps the time may come when medical science can reasonably determine the future value of an unborn child.
“Pecuniary injury to a statutory beneficiary is an element to be considered in awarding damages .... Proof of pecuniary injury is not a prerequisite to recovery of damages for wrongful death.... Damages for the wrongful death may be recovered by proof of the present worth of life of decedent to the decedent’s estate.” [Emphasis added.] Stang v. Hertz, 81 N.M. 69, 72, 463 P.2d 45 (Ct.App.1969), aff’d, 81 N.M. 348, 467 P.2d 14, supra.
Neither judicial wisdom, expert testimony, nor medical science can create any “present worth of life” to the estate of an unborn child.
Courts that have granted a right of action in an unborn child almost always avoid discussion of the elements and measure of damage, and few cases have effected a re-suit. See 84 A.L.R.3d, pp. 457-8. Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42, 44 (1964) said:
... It is beside the point that the extent of damages might be difficult, or even impossible, to establish prior to birth. [Emphasis added.]
Pehrson v. Kistner, 301 Minn. 299, 222 N.W.2d 334, 337 (1974) said:
... Yet all verdicts attempting to compensate for the death of a minor child may be arbitrary attempts at a difficult, if not impossible task.... [Emphasis added.]
To allow a recovery of special damages only, creates, in effect, a pyrrhic victory, a victory won at excessive cost. It is, in effect, a right without a remedy. All judges express sorrow at the tragic loss of an unborn child, but courts clothed with religious, philosophical and sentimental views cannot create a measure of damage where none exists. It can only be done when the measure of damage stated in U.J.I. 14.17 is abolished and the language of the wrongful death statute substituted therefor.
Under § 41-2-3:
... the jury ... may give such damages, compensatory and exemplary, as they shall deem fair and just, taking into consideration the pecuniary injury or injuries resulting from such death to the surviving party ... entitled to the judgment
An instruction given in this language would place the amount of an award in damages for the death of an unborn child within the discretion of the jury. It has been stated generally, except under wrongful death statutes, that where the jury is properly instructed, the amount to be awarded rests very largely within their discretion. Guildner v. Gholston, 472 P.2d 740 (Colo.App.1970); Richards Company v. Harrison, 262 So.2d 258 (Fla.App.1972); Endress v. Brookdale Community College, 144 N.J.Super. 109, 364 A.2d 1080 (1976); Broesche v. Bullock, 427 S.W.2d 89 (Tex.Civ. App.1968); Rosen v. Lawson, 281 Ala. 351, 202 So.2d 716 (1967); Kerr v. Rollins, 128 Vt. 507, 266 A.2d 804 (1970); Kink v. Combs, 28 Wis.2d 65, 135 N.W.2d 789 (1965).
Evidently, states which have allowed recovery for the negligent death of an unborn child will not allow a jury to “give such damages ... as they shall deem fair and just.” To do so, would allow the jury to exercise their religious, philosophical and sentimental views in arriving at the amount of the award. It is incongruous to hold that a viable fetus is a “person” on the one hand, and deny the representative of an unborn child the right to recover what the jury deems “fair and just” in an evaluation of the loss of the potential life. Otherwise viability has lost its value as a standard in prenatal tort law.
In my judgment, plaintiff will recover such damages as the jury may deem “fair and just” in her personal action. She seeks damages for physical pain and mental distress. Even though instructed not to award damages for the death of the unborn child, the natural and normal reaction of an ordinary member of a jury would result in compensation for the loss. In the field of damages, the amount to be awarded must be tempered with reality. To allow two rights of action may result in double recovery.
To discuss the other problems that arise would not assist in the solution of this new adventure in tort law.
Counts II and IV of plaintiff’s complaint failed to state a claim upon which relief can be granted. The Judgment should be affirmed.