Powers v. City of Troy

380 Mich. 160 (1968) 156 N.W.2d 530

POWERS
v.
CITY OF TROY.

Calendar No. 7, Docket No. 51,637.

Supreme Court of Michigan.

Decided March 4, 1968.

Cicinelli, Mossner, Majoros, Harrigan & Alexander, for plaintiff.

Patterson & Patterson, Barrett, Whitfield, Manikoff and White (Robert G. Waddell, of counsel), for defendants.

O'HARA, J. (for affirmance).

This case involves an interpretation of the Michigan wrongful death act.^[1] Specifically, the question is the meaning of the word "person" in the first sentence of the statute:

"Whenever the death of a person or injuries resulting in death, shall be caused by wrongful act * * * 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." (Emphasis supplied.)

In this case the person said to be involved was a 6-month-old male child en ventre sa mere. The child was stillborn. The question of the wrongful act as the proximate cause of the stillbirth is not in issue. The sole question posed by appellant and accepted by appellee is:

"Is an unborn child which is negligently injured by defendant and subsequently stillborn a `person' within the meaning of Michigan's wrongful death act?"

We make clear at the outset that we are not here considering the theological, nor philosophical status of a fetal child in the context of laws relating to abortion. We confine ourselves strictly 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 probate court for Oakland county appointed an administratrix for the estate of the stillborn child. By that administratrix a suit was started in the circuit court for the same county under the wrongful death act. Defendant prior to answer moved for summary judgment. The trial judge held:

"A viable baby boy in its sixth month of gestation which is negligently injured by a defendant and subsequently stillborn is not a `person' within the meaning of Michigan's wrongful death act."

The Court of Appeals affirmed. Its holding was:

"Therefore, while we find authority for the proposition of appellant, we are bound by the holding in Newman,^[2]supra, the intent of the legislature under the Michigan wrongful death act, and the clear meaning of the term `person' as used therein." 4 Mich App 572, 577.

We granted leave. Appellant urges 2 principal arguments. First, it is claimed that Newman was by implication, if not explicitly, overruled by LaBlue v. Specker (1960), 358 Mich 558. Second, if Newman has not been overruled by LaBlue, we should do so now. In support of the second argument appellant contends that the ratio decidendi of Newman is no longer valid. Newman, it is argued, was based upon the "overwhelming weight of authority" concept, while in the interim, since 1937, many jurisdictions have changed positions. In further support of the second argument, appellant relies on the "enlightened view" concept as part of the "no wrong without a remedy" proposition.^[3]

Appellee, per contra, premises his argument on the traditional view that to hold a fetal child under our death act to be a "person" we, in legal effect, judicially amend a statute which has been construed since its enactment over a hundred years ago to exclude the cause of action contended for by appellant. The argument is advanced that the construction asked by appellant is no part of a growth of the common law so vital to its continuing efficacy, but rather that our death act is a lineal descendant of Lord Campbell's act and is in derogation of the common law, that it is the statute which gives the cause of action, and that the courts are not privileged to create a new cause of action under the guise of liberal interpretation. Additional argument is made to the point that authorities not only divide on the issue here presented, but subdivide on the difference between the right of a viable fetus negligently injured during gestation but born alive, and one stillborn.

We address ourselves first to the contention that LaBlue, supra, overruled Newman. We do not so read LaBlue. First, LaBlue was not an action asserted under the wrongful death act. The action was based on the so-called "dramshop" act^[4] by reason of an alleged illegal sale of liquor to a minor. That minor, prior to his death, had allegedly acknowledged he was the father of a child to be born to an unwed female to whom he was engaged. Conception was alleged to have taken place in June of 1956. The minor father was killed on August 19, 1956. The declaration of paternity must then have been made between those 2 dates. The child was born on March 8, 1957. It was plaintiff's theory that the child lost the support of the self-declared and betrothed father. No injury to the mother during pregnancy occurred. The fetal child in the period of gestation was not injured in the sense of the injury to the fetal child in this case. LaBlue is closer to the family of cases recognizing a posthumous child as a dependent for inheritance purposes. Under the dramshop act loss of support is the essence of the action. Under the death act it is a wrongful death of a person which is the sine qua non. We reject the contention that LaBlue overruled Newman either expressly or by implication.

Next, we consider the "public policy" argument. We do not express ourselves upon it, nor upon the "majority view" argument. Neither do wo distinguish between assertibility of a cause of action based on injury to a child in utero which has survived birth and later dies and one which is stillborn. Rather we rest our decision squarely upon the fact that at the time our wrongful death act was passed the legislature used the term "person" in its ordinary, generally accepted meaning at that time. Such has been and remains a cardinal principle of statutory construction to ascertain legislative intent:

"In construing a statute, we are to construe it in the light of the circumstances existing at the date of its enactment, not in the light of subsequent developments." Wayne County Board of Road Commissioners v. Wayne County Clerk, 293 Mich 229, 235.

See, also, 25 RCL, Statutes, § 215, p 959, which in turn was fortified by Platt v. Union P.R. Co. (1879), 99 US 48 (25 L ed 424); 50 Am Jur, Statutes, § 236, p 224.

This has been the uniform policy of this Court beginning with Green v. Graves (1844), 1 Doug (Mich) 351, where the Court said at p 354:

"The words of a statute are to be taken in their ordinary signification and import."

We are not convinced that "person" in its ordinary signification in 1848 when our death act was passed included the concept of a fetal child. It should be noted and emphasized that we deal here, not with a cause of action which existed at common law. We do not face here the question of broadening the base of recovery in an action already recognized at common law. We deal with a statute in derogation of the common law.

We are constrained to agree with the reasoning of the supreme court of Tennessee in Hogan v. McDaniel (1958), 204 Tenn 235 (319 SW2d 221). In considering the same question, under a statute substantially the same as ours, the Court said (pp 244, 245):

"There is no ambiguity in our wrongful death statute. We must consider it as it is written, not as we would have it. Only the legislature has authority to create legal rights and interests. It results that no right of action, such as plaintiffs seek to assert, can be brought until there is legislative authority for it."

Considering the plain import of the word "person" at the time of enactment of our statute and its uniform interpretation through the years, we feel obligated to accord to the term its "ordinary signification" when legislatively employed.

The order of the Court of Appeals affirming the entry of summary judgment for defendants is affirmed. Costs to the defendants.

DETHMERS, C.J., and KELLY and ADAMS, JJ., concurred with O'HARA, J.

BRENNAN, J. (for affirmance).

This case of Powers is the reductio ad absurdum of Wycko v. Gnodtke (1960), 361 Mich 331. Having erroneously ruled in Wycko that a human being, like a horse or a mule, has a value to be measured in greenback dollars, this Court is now confronted with an extreme case of a very short-lived human being. As in most cases, when an erroneous premise is reduced to its most absurd extreme, our Court would now avoid confessing the error of Wycko by changing the subject.

We would now compound our error by holding against the great weight of American jurisprudential authority that a prenatal injury is no injury at all because the plaintiff didn't exist at the time it happened. By such illogical reasoning, we will some day say to a man, horribly scarred or deformed through the malpractice of the obstetrician who delivered him into the light of day, that the scar on his forehead is, by the cruelest legal fiction, an injury to his mother.

In an effort to avoid facing up to our recent errors in Wycko, Currie^[1], Heider^[2], Reisig^[3], we flirt with branding the unreasoned opinion in Newman v. City of Detroit^[4] as an established and binding precedent, while at the same time overruling the well-reasoned opinion in Tunnicliffe v. Railway Co.^[5]

Newman v. City of Detroit held, without much explanation, that there is no action at common law or by statute for the recovery of damages for prenatal injuries. Newman is bad law and some day should be overruled. But the overruling should come in a proper case, either brought by a living plaintiff who alleges an injury to him while he was yet in his mother's womb or brought by the personal representative of a decedent, whose death was caused by the prenatal injury, and on account of whose death actual pecuniary losses can be shown. This instant case of Powers is not such a case.

In this case of Powers, the complaint alleges in paragraph 22, by way of damages, "the parents of said child have been deprived of the possible and probable monetary contributions of said child; that they likewise have been deprived of the services of said child, particularly services which would have been rendered to them in their old age; that further, they have been deprived of the mutual society and companionship of said child during their respective lifetimes." Judged as pecuniary loss had always been judged prior to Wycko, these allegations do not state a cause of action under the death act. Monetary contributions of a minor child in these times are not to be presumed, and neither are services to be rendered to parents in their old age. In the absence of some specific and unusual circumstances of dependency on the part of the parents, combined perhaps with their inability to have other children, if such were the fact, damages for such items in the case of an infant decedent, are purest speculation. The complaint further claims damages for deprivation of the mutual society and companionship of the child. In a humane and civilized culture, such a thing is not a pecuniary loss.

The word pecuniary means consisting in money; exacted or given in money. The word pecuniary is an adjective. It is the function of an adjective to modify a noun. When so modified, the noun no longer has the universal meaning which it has when it is not so modified. Thus a pecuniary injury is to be distinguished from a nonpecuniary injury. A pecuniary injury is one that is measured in money. A nonpecuniary injury is one that is not measured in money. The question is not whether a money value can be attached or ascribed to the injury.

The majority in Wycko suggest that the genius of the common law is capable, where left alone, of ascertaining damages even for the sorrow and anguish caused by death. This capacity of the common law should hardly be called genius. It would be more properly described as fiction. What the learned Justice writing in Wycko was really recognizing is that, if a jury be told to place a money value on anything, they can by process of speculation, conjecture, and sympathy do what they are told to do. The capacity of the jury to agree on an award is hardly the thing that distinguishes pecuniary losses or injuries from nonpecuniary losses or injuries. The thing that distinguishes the two is the nature of the injury itself as it is regarded by persons who suffer such injuries generally.

Thus, a dejected farmer tells his neighbor that he has suffered the loss of a $50 horse, but he would not tell a neighbor that he has lost a $12,000 wife or a $7,000 son. The majority in Wycko tell us, though without citation of judicial authority, finding by the jury, or even reference to sociological handbooks, that companionship is obtainable on the open market. If it be so in Lansing or Ann Arbor, or even in certain sections of Detroit, it is not a commodity generally bought and sold by the citizens of Michigan.

The Wycko majority wrongly assumed that money is the only verity in life, for it concluded that a rule of law which assigns no monetary value for the loss of a human life thereby assigns it no value whatsoever. In a classic non sequitur, the Court then says, "This kind of delicacy would prevent the distribution of food to the starving because the sight of hunger is so sickening." In truth, of course, a society which values human life in terms greater than money does not count the cost when it feeds the starving. Those, so imbued with adulation of shillings and shekels that they would place a money value on the loss of a human life, would surely weigh the economic wisdom of feeding the starving — placing in the one scale the value of the food, the cost of transportation, and the expense of distribution, and in the other scale, the monetary value of the human lives to be lost through starvation.

Fortunately, our society has not yet come to the stage of enlightened barbarity to which the Wycko majority would lead us. We still read of total community mobilization to rescue a little child from the bottom of the well, and the Court can readily take judicial notice that our people do not, as yet at least, measure human life in terms of dollars and cents, nor regard the loss of human life as a mere pecuniary loss.

Having founded its reasoning on the mucky bedrock of dollar deification, the Wycko majority assumed that past legislatures and courts have shied away from allowing damages for loss of companionship of a deceased for the reason that it was difficult to arrive at money damages for the loss of human life. It did not occur, apparently, to the majority in Wycko that the voice of the people heard in the legislative hall and their wise forebears on the courts did not believe that the assessment of money damages for the loss of human life was right or prudent or directed to the common welfare.

If one begins with the assumption that all well-being is economic well-being, that all security is economic security, and that all happiness is economic prosperity, it would indeed be difficult to imagine why a legislature or a court would eschew the assessment of money damages for the loss of a life. But in a society where other greater values are recognized, the wisdom of the legislative policy is better understood.

Do we indeed become a stronger and braver, more courageous and more noble people when our citizens are invited to the office of the claims examiner or to the courtroom, there to recover in hard cold cash an amount which will be measured by the sincerity of their keening? Does the Wycko decision serve the cause of mental health, or contribute to the personal well-being and good adjustment of our people? Or does the Wycko decision and others like it contribute to the growing multitude of patholitigants whose spurious causes and unreasonable demands congest our courts, delay our dockets and vex our people? Does the Wycko decision mean that rich parents with substantial investments in their children's upbringing and education will recover more upon the death of their children than poor parents whose children have been forced by economic adversity to leave school at the age of 16 and help support a large or an impoverished family?

Whatever answer one might give to these questions, the fact that the questions can be asked in good faith is evidence that there is a difference of opinion upon the wisdom of valuing human life in terms of dollars and cents. And if there be a difference of opinion upon the subject, this Court is, by its constitutional oath, obligated to effectuate the policy determination made by the legislature. The legislative line has been drawn at pecuniary loss and pecuniary injury. The legislature has placed the recovery of pecuniary loss on a level with the administration of decedent's estate. It is a business matter. It is not intended to be a substitute for a church funeral or a publicly financed and privately endowed memorial service.

True it is, that some hard-hearted survivors and avaricious lawyers have in the past and will in the future, by the employment of fiction and fabrication, turn an action for pecuniary loss into an attempt to measure the value of the decedent in order improperly to influence the jury and evoke their sympathy. This is an abuse, and it is an abuse which needs constantly to be guarded against. But it is no solution judicially to decree that the abuse shall be universal and more candidly indulged in. The courts below should be affirmed on the ground that the complaint does not allege a pecuniary injury within the meaning of the death act.

Costs to defendants.

SOURIS, J. (for affirmance).

I concur in affirmance. In this State we have not yet recognized even the right of a child born alive to recover damages for negligently inflicted prenatal injuries. Newman v. City of Detroit (1937), 281 Mich 60. Someday we may overrule Newman in a case which requires our reexamination of Newman's holding. Until we do, I believe it is premature to hold, as we are asked to do today, that a stillborn child's administratrix can sue under the wrongful death act^[1] for damages for negligently inflicted prenatal injuries which caused the stillbirth. In short, I believe we are being asked to decide too much, too quickly; to move too far, too swiftly; to take two full steps ahead, instead of only one step at a time.

Mr. Justice KAVANAGH, writing for the Court in LaBlue v. Specker (1960), 358 Mich 558, and in his opinion today, has demonstrated exhaustively that courts have not hesitated to consider in esse a foetus en ventre sa mere whenever to do so would be beneficial to the child born alive. As persuasive as are the cases he cites involving children born alive, when a stillbirth results, as in this case of Powers, there is no live child for whose benefit the courts can act. For this reason the rationale of the cases Justice KAVANAGH and plaintiffs rely upon is not applicable when the negligent injury causes a stillbirth. It is true that during this past decade a number of courts in other jurisdictions, not hampered as we are by precedents like Newman, have recognized the right to assert a cause of action such as is attempted here; but in none of those cases has a rationale emerged which persuades me of the necessity for, or the wisdom of, the judicial action taken by those courts.

I am not persuaded that such judicial action is necessary to avoid injustice to anyone in being, assuming arguendo that we properly might construe our death act's use of the word "person" to include a stillborn child. For example, we are told that the parents of the stillborn child in this very case have instituted suit against the negligent tort-feasors to recover their damages. While it is true that we have not held yet that parents in such common-law tort actions may recover damages for loss of the companionship of their stillborn child, see Tunnicliffe v. Bay Cities Consolidated R. Co. (1894), 102 Mich 624, this Court in that case recognized that the mother's right to recover damages for pain and suffering includes "to some extent a consideration of the nature of the injury, and cannot exclude from the consideration of the jury the fact that the physical and mental suffering of the mother by reason of such an injury would be more intense than in the case of the ordinary fracture of a limb." (At p 630.) We need not pretend to believe that recoverable damages, limited as they are by Tunnicliffe to such physical and mental suffering, currently are commensurate with the loss; but Montgomery v. Stephan (1960), 359 Mich 33, and Wycko v. Gnodtke (1960), 361 Mich 331, point the way toward our future development of a more realistic measure of damages recoverable in the tort actions of the injured parents. In my judgment, that sort of development of our common law is preferable to adding still another fiction to the law — that for negligently inflicted prenatal injuries which result in a stillbirth, the wrongful death act provides a legal remedy for the "benefit" of the child born dead!^[2]

BLACK, J. (for affirmance).

Until the fourth opinion of this case was turned in December 28 last, hope remained that we might remove some of the stigma which, by vote of a bare and now elector-reduced majority, was branded on all robes of the Court when Currie v. Fiting, 375 Mich 440, amended the then effective and interconnected acts of 1939 (referring to sections 1 and 2 of Act 297 and section 115 of Act 288)^[1] so as to provide damages for loss of companionship and distribution of such damages to survivors who in no alleged or actual sense were "persons who were dependents of the decedent." But that fourth opinion has left no doubt that a result of this case only can be agreed upon; hence this separate declaration of continued respect for the proposition that judges violate the law when they vote to amend a statute they dare not pronounce unconstitutional.

It seems to the writer that all members of the Court, not just some of us, should face openly two aspects of the cause plaintiff alleged and saw dismissed below (see Powers v. City of Troy, 4 Mich App 572). The first is that if a cause for wrongful death arose at all, that cause came into being when and only when the claimed death occurred (Coury v. General Motors Corporation, 376 Mich 248). The second is that the cause alleged may proceed to trial, and the damages claimed may be recovered and distributed, only if authorized by the acts of 1939 as same stood at the time of such claimed death.

The Currie amendment was enacted blithely in face of first branch legislation providing that damages recovered for "pecuniary injury" resulting from wrongful death of a human being, often previously defined as excluding damages for loss of companionship,^[2] may be distributed — lawfully that is — "only to those persons who were dependents of the decedent." The quotation appears in said section 702.115, sub (4), of which more anon. Now we have before us another demand for another judicial amendment of these same acts of 1939 (retroactive of course to 1962 when the collision complained of and the alleged death of a statutory "decedent" occurred) which, if enacted by the Court, will provide damages for loss of the companionship of a fetus which cannot rationally be said, under statute or otherwise, as having left anyone dependent upon it. Is it not at long last plain that these insatiable demands for unconstitutional legislation by Justices will continue just so long as 5 Justices submit to and appease them?

First: I perceive no reason to consider overruling inapposite Newman v. City of Detroit, 281 Mich 60. For if we were to overrule it, say here and now on exclusive motion of the Court with declared retroactivity back to September 1, 1937, that would not help the present plaintiff. This is an alleged statutory action for wrongful death. It is brought under and stands or fails by the aforesaid unitary acts of 1939. Newman, on the other hand, was an action brought upon alleged authority of the common law. It was an action which, if sustainable by the common law, survived to Charles L. Newman's personal representative under the then survival act (CL 1929, §§ 14040-14060) with the recoverable damages belonging exclusively to and becoming a part of the decedent's estate. The right of a fiduciary to prosecute such a common-law right of action did not depend upon proof that the injured person's subsequent death was due in whole or in part to the injuries complained of. It was enough that during the decedent's lifetime he became possessed of what was a property right by the common law, that is, a right of action for tortiously caused personal injuries.

The sooner this presently composed Court comes to understand the difference between the mentioned common-law right of action, and the right of action for recovery and distribution of "pecuniary" damages which by statute has been provided continuously since 1848, the sooner our total membership will comprehend that if there were no Newman Case in the books the due result of this fiduciary's appeal would necessarily be the same.

Perhaps all this may be made elementarily clear, first by quotation of Rouse v. Michigan U.R. Co., 164 Mich 475 (a case where the tortiously injured person lived long enough to recover a judgment for his injuries, only to see it reversed [Rouse v. Michigan U.R. Co., 158 Mich 109] and then to die of natural causes); second by quotation of another survival act case, Love v. Detroit, J. & C.R. Co., 170 Mich 1.

From Rouse at 477:

"A right of action for personal injuries not resulting in the death of the injured person survives his death (CL 1897, § 10117), and a suit for his damages begun by him may be continued by his personal representative after his death, with the same effect, according to the same rules, and to recover the same damages, as if he were living and prosecuting his action in person. Neither the death act, so called (CL 1897, § 10427), nor PA 1905, No. 89, affect such a right of action or have any application to the manner in which it shall be pursued. In the decisions of this Court no different conclusion has been stated or intimated."

From Love at 4, 5:

"A right of action is as much property as is a corporeal possession, and, under the survival act, vests at once in the injured person upon the inflicting of the negligent injury, and, upon his subsequent death, becomes an asset of his estate to be collected and distributed in accordance with the administration statutes. Berger v. Jacobs, 21 Mich 215; Power v. Harlow, 57 Mich 107, 111; In re Joslyn's Estate, 117 Mich 442; Carbary v. Detroit U.R., 157 Mich 683; Olivier v. Railway Co., 134 Mich 367 (104 Am St Rep 607, 3 Ann Cas 53)."

In suggest respectfully that all of us should lay the Newman Case aside for consideration when, if ever, there is brought here another common-law action by a prenatally injured living person or, as in Newman's Case, a fiduciary of such a prenatally injured person whose death has followed his birth.

Second: We could write great manuscripts, I suppose, for and against reading into said Act 297 an intent by the assembly of 1939 to authorize the recovery of damages, for "pecuniary injury," by the appointed fiduciary of a fetus which never attained birth on account of tortious injury sustained by the pregnant mother. Justice T.M. KAVANAGH has already undertaken the pro side of the argument by searching beyond our borders for a "trend" which is said to support his final conclusion that "this Court should not by a strained construction of the act^[3] defeat its purpose." Here indeed we agree. We should not by any strained construction of the act defeat its purpose. Nor should we defeat its purpose as done in Currie, that is, by an unconstitutionally ordered retroactive amendment which deletes the requirement of distribution "only to those persons who were dependents of the decedent."

The trouble with Justice T.M. KAVANAGH'S tour abroad is that he did not before embarkation ascertain whether the acts of 1939 in any way correspond with those considered in the out-of-state authorities he has labored to assemble. He cannot even have looked at section 2 of said Act 297, to say nothing of section 115 of said Act 288, the specific requirement of which is that damages recovered for "pecuniary injury" must be distributed only to dependents of the decedent.

For the benefit of out-of-state readers of our present indispositions there is appended that part of said section 115 which applies here (emphasis supplied by the writer):

"Sec. 115. The proceeds of any settlement of a cause of action for wrongful death, or the proceeds of a judgment recovered in an action for damages for wrongful death, shall be distributed in such manner, to such persons, and in such amounts as hereinafter set forth:

"(1) * * *

"(2) * * *

"(3) * * *

"(4) After hearing on the petition of the executor or administrator, the probate court shall enter an order distributing such proceeds only to those persons who were dependents of the decedent and in such amounts as to said court shall seem fair and equitable considering the relative damages sustained by each of such dependents by reason of the decedent's wrongful death: Provided, however, That if the proceeds which are to be distributed are proceeds of a judgment recovered in a court which has issued a certificate, as may be provided by law, relative to the damages sustained by each of such dependents, distribution of such proceeds shall, in the absence of written objections thereto filed by any interested party following service of notice as required by this section, be ordered in accordance with such certificate."

As in Currie (375 Mich at pp 471, 484, 485), I stand for oath-bound duty to apply simply worded statutes as they read, not as I might have written them of predilection for a legislative committee. This plaintiff's cause as alleged, for recovery and distribution of "pecuniary" damages, never arose because there was no "decedent" and no "dependent" as those nouns were known to and used by this Court in Venneman and then by the legislators of 1939; legislators who in the same unitary statutes made express provision for recovery of "reasonable compensation for the pain and suffering, while conscious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and his death."

To Summarize:

1. A fetus cannot be deemed a "person" or a "decedent" within our unique acts of 1939, whereas that conclusion may have been drawn reasonably from some statutes of other States. All the skilled research clerks of Lansing, laboring unitedly without food or drink, could not possibly come up with any judicially interpreted out-of-state statutory provisions which correspond with our acts of 1939. The reason is that those acts were prodded into controversial drafting and effect by the Venneman Case, supra, and they are peculiar to Michigan on account of Venneman's determination that, as a result of suit under the then wrongful death statute and entry of a consent judgment for the plaintiff administratrix, an adult son of the deceased husband and father, even though not a dependent of his father, was entitled to share with the decedent's dependent widow the proceeds of that consent judgment. The Court said in Venneman (pp 376, 377):

"Because of the statutory mandate, notwithstanding appellant is an adult and in no way dependent upon his father for support, he still is entitled to share in the distribution of the amount recovered. And this is true even though it be admitted that the son himself could have recovered no damages because he could show no pecuniary loss, and the only person who did suffer a loss was the widow."

It should not be difficult for any present day Michigan lawyer or judge, whether engaged regularly in trial and appellate work in 1939 or not, to perceive both from the content of 1938 Venneman and the wording of the immediately ensuing acts of 1939 that the legislature employed the legal phrase "dependents of the decedent" to make sure that no result like Venneman should occur again; also that that body tied section 2 of Act 297 and section 115 of Act 288 together by requiring (in section 2) that the probate court "shall determine as provided by law the manner in which the amount representing the total pecuniary loss suffered by the surviving spouse and next of kin shall be distributed."

2. This opinion is not to be taken as affecting in any way Mrs. Powers' separately pending commonlaw action for personal injuries and such other damages as may or may not, at common law, be recoverable by her on account of the stillbirth alleged in her separate complaint. That case doubtless will arrive here and I do not prejudge it. See Currie at 486, 487.

I vote to affirm.

T.M. KAVANAGH, J. (dissenting).

Plaintiff, the administratrix of the estate of Baby Boy Powers, commenced this action against defendants in the Oakland county circuit court on August 28, 1964, seeking damages under the Michigan wrongful death act.^[1] Prior to answer, defendants filed a motion for summary judgment alleging the plaintiff's pleadings failed to state a cause of action. After answer and pretrial conference the trial court granted defendants' motion for the reason that "a viable baby boy in its sixth month of gestation which is negligently injured * * * and subsequently stillborn is not a `person' within the meaning of Michigan's wrongful death act."

Plaintiff appealed to the Court of Appeals, which affirmed the trial court. (4 Mich App 572.) Plaintiff is here on leave granted by this Court on December 30, 1966.

On October 29, 1962, Hazel L. Powers was involved in an automobile accident with a car driven by defendant Ventittelli and owned by defendant City of Troy. At the time she was 6 months pregnant with child. As a result of the accident she and her unborn child each received serious injuries, causing the child to be stillborn.

The first sentence of the Michigan wrongful death act reads as follows:

"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, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony." (Emphasis supplied.)

The sole question for decision in this case is whether a 6-month old fetus is a person within the meaning of the Michigan wrongful death act.

Defendants rely, as did the trial court and the Court of Appeals, on the case of Newman v. City of Detroit, 281 Mich 60.

In the Newman Case the injuries suffered by the unborn child occurred 22 days prior to his birth and caused his death 3 months after he was born. The Court there denied decedent's cause of action under the survival act, simply stating that the overwhelming weight of authority denied liability, and concluded that (p 64):

"Plaintiff has no cause of action under the common law or under any statute."

Plaintiff relies on the great weight of authority which presently exists throughout the nation and contends that although LaBlue v. Specker, 358 Mich 558 (decided in January, 1960), did not expressly overrule Newman v. City of Detroit, supra, it did so by implication.

LaBlue v. Specker, supra, without dissent determined the status of an unborn child as a person entitled to bring an action under the Michigan dramshop act.^[2] There the Court pointed out that it and other courts have repeatedly held that for all purposes of construction a child en ventre sa mere is considered as a child in esse if it would be for the child's benefit to be so considered. It cited the case of Williams v. Marion Rapid Transit, Inc., 152 Ohio St 114 (87 NE2d 334, 10 ALR2d 1051),^[3] with approval. In that case an unborn child was considered a person within the constitutional provision giving every person a remedy for personal injury. The Court also cited McLain v. Howald, 120 Mich 274, where it was said (p 279):

"It may be that these statutes do not in terms cover this case, but they are in harmony with the settled rule when they declare that `posthumous children are considered as living at the death of their parents.' * * * And it is held that such children may sue for an injury or loss sustained while en ventre sa mere. 27 Am & Eng Enc Law, 420, and note. We feel justified, by these authorities, in saying that Edward McLain, being in esse, though en ventre sa mere, at the time of the death of the life tenant, was entitled to take under the will with his older brothers and sisters."

In LaBlue the Court then analogized between the fact situation there and the holdings of this Court and courts of other States under the workmen's compensation statutes. They hold that posthumous children are entitled to compensation due as the result of the death of a parent.

Turning to the holding of courts in the field of criminal law, the Court stated that a child's legal existence en ventre sa mere had long been recognized in abortion and other criminal statutes.

The Court then examined how the Michigan Court and other courts construed civil damage or dramshop act provisions.

In LaBlue it was pointed out that there had been a change in the weight of authority which affected the Newman decision. The Court said (p 570):

"While the statement made by Justice BUTZEL, in September of 1937 when this case was decided, was true that the overwhelming weight of authority denied liability, the situation with respect to the law has changed considerably since that time."

In pointing out that the law had changed, the Court cited 10 ALR2d 1059, which is an annotation dealing with grounds of action for prenatal injuries. That annotation was published in 1950 and stated that cases dealing with prenatal injuries were few in number and that the numerical weight of authority denied relief under the various wrongful death statutes. The Court then cited a later annotation found in 27 ALR2d 1256 (published in 1953) which supplemented that in 10 ALR2d, and quoted a portion of that annotation which pointed out the fact that 10 jurisdictions to that date had denied a right of action for prenatal injuries and 7 had allowed such actions. The annotation stated (p 1259):

"However, the fact that 6 jurisdictions out of 7 in the past several years have recognized such an action indicates a definite trend away from the more orthodox view."

The Court then cited many cases from other jurisdictions which point out the drastic change in the law. The LaBlue opinion concluded by saying (p 578):

"Assuming that the guardian would be able to prove the facts alleged in his declaration, that John LaBlue had acknowledged that he was the father of Deborah Johnson, and assuming that proof of damage and dependency can be shown, it is clear that a cause of action exists."

With the passage of time and resulting sophistication of judicial precedent and medical knowledge, it is most apparent that the Court in LaBlue was absolutely correct in its appraisal of the Newman Case in stating that the law had changed considerably since Newman had been decided. See Smith v. Brennan, 31 NJ 353 (157 A2d 497); Daley v. Meier, 33 Ill App 2d 218 (178 NE2d 691); Sana v. Brown, 35 Ill App 2d 425 (183 NE2d 187); Sinkler v. Kneale, 401 Pa 267 (164 A2d 93).

In the case of Sinkler v. Kneale, supra (decided in September, 1960), the Court was considering a case where a Mongoloid infant brought suit for damages caused when defendant, while negligently operating his motor vehicle, collided with the car which her mother was driving. The plaintiff at that time was a fetus of one month. As a result of these injuries the child claimed she was born Mongoloid. The Court there reversed an earlier Pennsylvania case showing that the authorities relied upon were cases from other jurisdictions which by that time had reversed themselves, and then upheld the right of action when the child was born alive. The Court then cited a Massachusetts case in which Judge Holmes denied the right of action but felt it necessary to find some opposition to a statement made by Lord Coke on criminal law. Of this the Court in Sinkler stated (p 270):

"Even if the criminal law is faint authority for a tort, the foregoing must show at least that the common law offers no bar to the suit. Judge Holmes' real point d'appui for decision was that the unborn child was part of its mother. This was undoubtedly the medical view accepted by the law at the time, and it is precisely the view that has altered since." (Emphasis supplied.)

The Court then gave a detailed consideration of the various jurisdictions and factors pointing out the change in the law (pp 270, 271):

"Since 1949 seven States have overruled former decisions denying recovery, including the four above cited in Berlin,^[4] and nine States, dealing with the question for the first time, have upheld recovery. The eighteen States that now allow recovery are: (citing States and cases).

"At present eight States deny recovery. In two the courts note the recent trend and strongly indicate that reversal is likely. These are Michigan, in LaBlue v. Specker (1960), 358 Mich 558, and Wisconson, in Puhl v. Milwaukee Auto Ins. Co. (1960), 8 Wis 2d 343 (99 NW2d 163). * * *

"Leading text writers have condemned the rule and advocated recovery: (Citing authority). Prosser says that the trend toward allowing recovery `is so definite and marked as to leave no doubt that this will be the law of the future in the United States.'

"The real catalyst of the problem is the current state of medical knowledge on the point of the separate existence of a fetus. In the Smith Case Justice Proctor, speaking for the New Jersey supreme court in a unanimous decision said this [31 NJ 353, 362, 157 A2d 497, 502]:

"`The third reason for the rule denying recovery was the theory that an unborn child was a part of the mother, and therefore not a person in being to whom a duty of care could be owed. All the courts that have permitted recovery for prenatal injuries have disagreed with that theory. They have found that the existence of an infant separate from its mother begins before birth. * * * Medical authorities have long recognized that a child is in existence from the moment of conception, and not merely a part of its mother's body.' (Citing authority.)" (Emphasis supplied.)

The Court concluded by reversing the lower court and remanding the case with a procedendo.

The very recent Texas case of Leal v. C.C. Pitts Sand & Gravel, 419 SW2d 820 (decided October 4, 1967), points out emphatically the definite trend in the law today. The court of appeals' decision in that case (413 SW2d 825) stated that it agreed with the plaintiff's theory and rationale as presented, but thought it was for the legislature or the supreme court to change the rule of law in that State. The supreme court reversed a prior decision of that court and allowed the recovery for the injury to the viable baby who was subsequently born live and then died. Of the change in the law, the court said (p 822):

"Our research indicates that since this counter trend became evident, no court has denied a right of action for prenatal injuries to a viable infant born alive where the problem has been given re-examination."

In Prosser on Torts (3d ed), ch 10, § 56, p 354, Professor Prosser gives consideration to the field of prenatal injuries. He points out that nearly all the decisions prior to 1946 denied recovery to the child for prenatal injuries — first, because there was no person in existence; and second, because of the difficulty with the proofs. He continues, saying (p 355):

"So far as duty is concerned, if existence at the time is necessary, medical authority has recognized long since that the child is in existence from the moment of conception, and for many purposes its existence is recognized by the law. The criminal law regards it as a separate entity, and the law of property considers it in being for all purposes which are to its benefit, such as taking by will or descent. After its birth, it has been held that it may maintain a statutory action for the wrongful death of the parent. So far as causation is concerned, there will certainly be cases in which there are difficulties of proof, but they are no more frequent, and the difficulties are no greater, than as to many other medical problems. All writers who have discussed the problem have joined in condemning the old rule, in maintaining that the unborn child in the path of an automobile is as much a person in the street as the mother, and in urging that recovery should be allowed upon proper proof."

He goes on to point out that the years of criticism of the rule have finally had their effect and brought about the most "spectacular abrupt reversal" of legal rule in the history of tort law.

Treating the problem of at what stage in embryonic development there should be redress for injuries, Professor Prosser states (pp 356, 357):

"Certainly the infant may be no less injured; and all logic is in favor of ignoring the stage at which it occurs. But with our knowledge of embryology what it is, as we approach the beginning of pregnancy, medical knowledge, and therefore medical testimony and medical proof of causes, becomes increasingly unreliable and unsatisfactory, so that there is good reason for caution. This, however, goes to proof rather than principle; and if, as is undoubtedly the case, there are injuries as to which reliable medical proof is possible, it makes no sense to deny recovery on any such arbitrary basis." (Emphasis supplied.)

Professor Prosser then turns directly to the issue in question in this case — that is, whether it makes a difference if the child is born live or is stillborn. He states that the majority of jurisdictions at the time of the printing of his book (1964) are more concerned with compensation for a distressing wrong and allow the action even if the child is stillborn.

We must agree with Professor Prosser that the difficulty of proof while the child is in the mother's womb is no reason to deny recovery. Today the field of medicine is making great strides in this area of prenatal testing.^[5]

We are told by Justice O'HARA in his opinion that:

"Considering the plain import of the word `person' at the time of enactment of our statute and its uniform interpretation through the years, we feel obligated to accord to the term its `ordinary signification' when legislatively employed." (Emphasis supplied.)

The uniform interpretation through the years consists of one decision — that of Newman v. City of Detroit, supra. We, too, feel obligated to accord the term "its ordinary signification" when legislatively employed, giving the term "person" the same construction the Michigan Supreme Court has given it in workmen's compensation cases, in criminal law, and abortion cases, in descent and distribution of property cases, and in civil damage cases, including the dramshop statute. In all instances save the Newman Case, supra, "person" has been interpreted to include a child from the time of conception. In all of the above mentioned instances this Court has found that the legislature used the word "person" to include a fetus from time of conception. Clearly, the legislature used the word "person" with the same meaning in drafting the Michigan wrongful death act.

The word "person" is subsequently used in section 2 of the death act in providing that the damages shall go to those "persons" who may be entitled to such damages when recovered. Since the law of descent and distribution includes unborn children, it should be presumed that the legislature used the term "person" in both sections of the wrongful death act with the same meaning. See People, ex rel. Simmons, v. Township of Munising, 213 Mich 629, where syllabus 3 says:

"Identical language should receive identical construction when found in the same act."

We do not lightly overrule settled decisions construing any section of a standing statute. The Newman Case, supra, is that one decision construing an act which does not approach the dignity of a well-settled interpretation. See Smith v. Lawrence Baking Company, 370 Mich 169, 177, citing and following White v. Winchester Country Club, 315 US 32, 40 (62 S Ct 425, 86 L ed 619); and United States v. Raynor, 302 US 540, 552 (58 S Ct 353, 82 L ed 413). Also, see Autio v. Proksch Construction Company, 377 Mich 517, where a majority of this Court, including Justice O'HARA — over the dissents of Justices BLACK, KELLY, and DETHMERS — went beyond the one-case rule.

It is, therefore, clear that the Newman Case should be and hereby is overruled as its conclusions, regardless of their validity in 1937, are clearly erroneous at this date, there having been an historic change not in theology, but in philosophy, science, medicine, and the law without distinction as to abortion cases, workmen's compensation cases, tort claims including the dramshop act cases, descent and distribution of property or death act cases.

It would be enough that we go no further in the determination of this case, as it is clear (1) that Baby Boy Powers was a person from the time of conception, (2) that he suffered injuries which caused his death, and (3) that if he had survived he would have had a cause of action for the injuries. Our death act states that "in every such case, 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 supplied.) The act makes no distinction as to time of death.

Without stopping here, however, we turn our attention to the cases heretofore decided in other jurisdictions that are directly in point with this case. Almost all of the cases are collected in 15 ALR3d 992 in an annotation entitled, "Action for death of unborn child." In section 2 of the annotation, at p 995, are listed 14 jurisdictions which have held that an action may be maintained to recover damages for the wrongful death of an unborn child.^[6]

At page 999 of the annotation, under section 3, are listed 10 jurisdictions which denied liability under the same or similar facts.

For this Court to decide this case as do the shrinking minority of courts today, and as Justice O'HARA would have us do, would be to sanction the turning back of the clock and reverting to judicial and scientific fallacies long since obsolete.

Justice VOELKER, writing the majority opinion in Steger v. Blanchard, 353 Mich 140, 144, said:

"Rules of law are necessary; properly applied they can succinctly gather in the loose ends of a case and help rationalize the decision. Our courts could scarcely operate without them. But when a rule of law or its application becomes so divorced from the context of reality, from the living human situations to which it is sought to be applied, it becomes meaningless incantation and downright harmful."

The prime purpose of the death act was to put an end to the common-law rule that tort-feasors whose acts killed rather than injured their victims would escape liability. The death act was designed to permit recovery even after death. This Court should not by a strained construction of the act defeat its purpose.

Since it is not before the Court at this time, we do not take up the question of damages.

The order of the Court of Appeals affirming the entry of the trial court's summary judgment should be reversed and the case remanded to the circuit court for entry of an order denying motion for summary judgment.

Plaintiff shall have costs.

NOTES

[1] CLS 1948, § 691.581 et seq. (Stat Ann 1959 Cum Supp § 27.711 et seq.). See, currently, CLS 1961, § 600.2922, as amended by PA 1965, No 146 (Stat Ann 1968 Cum Supp § 27 A.2922).

[2] Newman v. City of Detroit (1937), 281 Mich 60.

[3] A suit in Oakland county brought by the parents of the stillborn child as distinguished from the suit by the mother as an administratrix impends in the Oakland county circuit court.

[4] CLS 1956, § 436.22 (Stat Ann 1957 Rev § 18.993).

[1] Currie v. Fiting (1965), 375 Mich 440.

[2] Heider v. Michigan Sugar Company (1965), 375 Mich 490.

[3] Reisig v. Klusendorf (1965), 375 Mich 519.

[4] Newman v. City of Detroit (1937), 281 Mich 60.

[5] Tunnicliffe v. Bay Cities Consolidated R. Co. (1894), 102 Mich 624.

[1] CL 1948, § 691.581 et seq. (Stat Ann 1959 Cum Supp § 27.711 et seq.), repealed by PA 1961, No 236, effective January 1, 1963. For currently applicable wrongful death act, see CLS 1961, § 600.2922, as amended by PA 1965, No 146 (Stat Ann 1968 Cum Supp § 27 A.2922).

[2] For a comprehensive scholarly review of the subject of legal rights arising from tortious injury to an unborn foetus, see Gordon, The Unborn Plaintiff, 63 Mich L Rev 579.

[1] Sections 1 and 2, in effect when the causes of Currie and Powers allegedly arose (Currie 1960 and Powers 1962), are cited officially as CL 1948, §§ 691.581, 691.582. Section 115, in effect during the same years, is cited officially as CL 1948, § 702.115. I shall refer herein to said sections 1 and 2 and said section 115 as "the acts of 1939."

The 2 acts had to be conceived and fitted together as mutually dependent by the assembly of 1939; 1938 Venneman (In re Venneman's Estate, 286 Mich 368) having been just handed down. As noted in Currie at 484, the 2 acts were passed by the legislature on the same day, May 25, 1939. They were presented to Governor Dickinson on the same day, June 13, 1939. They were approved on the same day, June 20, 1939.

[2] See authorities gathered in Currie at pp 466-470.

[3] I assume that our Brother refers here to the simultaneously adopted acts of 1939. If he does not, then we must look for authority holding that a fiduciary may recover damages for "pecuniary injury" which he can distribute lawfully to no one; there being in this Powers Case no "dependents of the decedent."

[1] CL 1948, § 691.581 et seq. (Stat Ann 1959 Cum Supp § 27.711 et seq.). See, currently, CLS 1961, § 600.2922, as amended by PA 1965, No 146 (Stat Ann 1965 Cum Supp § 27 A.2922).

[2] CLS 1961, § 436.22 (Stat Ann 1968 Cum Supp § 18.993). — REPORTER.

[3] Also cited with approval by Justice TALBOT SMITH in Montgomery v. Stephan, 359 Mich 33, 47.

[4] Berlin v. J.C. Penney Co. (1940), 339 Pa 547 (16 A2d 28).

[5] "Genetic Damage Detected

"PRENATAL TESTING GAINS

"By Rudy Abramson

"The Los Angeles Times

"ST. LOUIS — Medical science is approaching the ability to clinically identify in the womb many babies which will be born malformed because of genetic damage, a George Washington University researcher has disclosed.

"The technique which has been used clinically in 20 cases with 100 per cent accuracy, involves withdrawing a small specimen of the amniotic fluid surrounding the developing fetus, growing it in tissue culture, then studying the chromosomes which carry the genetic material responsible for heredity.

"Over the last few years; the technique has been used in 200 or more patients in research conducted by Dr. Cecil B. Jacobson, director of George Washington University's reproductive genetics unit, who described the work in a talk on new developments in human genetics before a science writers symposium here Friday.

"Jacobson said he believes the number of genetic mutations producing malformed children is increasing.

"The technique of withdrawing amniotic fluid from the womb has been available since the 19th century, but the potential for using it is only now being realized with the ability to inspect chromosomes and associate their abnormalities with specific malformations.

"At least eight genetically induced malformations — including such well-known ones as Mongolism and Phenylketonuria (PKU) — can now be identified.

"If the chromosomal analysis of fetal cells from the amniotic fluid should become a widely used procedure in cases where genetic damage is suspected, present abortion laws would presumably permit therapeutic abortion on grounds that to give birth to a child known to be defective would endanger the health of the mother." (Carried in The State Journal, Lansing, Michigan, on November 20, 1967.)

[6] Connecticut — Gorke v. Le Clerc (1962), 23 Conn Supp 256 (181 A2d 448); Hatala v. Markiewicz (1966), 26 Conn Supp 358 (224 A2d 406).

Delaware — Worgan v. Greggo & Ferrara, Inc. (1956), 50 Del 258 (128 A2d 557).

Georgia — Porter v. Lassiter (1955), 91 Ga App 712 (87 SE2d 100).

Iowa — Wendt v. Lillo (1960, DC Iowa), 182 F Supp 56 (applying Iowa law).

Kansas — Hale v. Manion (1962), 189 Kan 143 (368 P2d 1).

Kentucky — Mitchell v. Couch (1955, Ky), 285 SW2d 901.

Louisiana — Cooper v. Blanck (1923, La App), 39 So 2d 352 (dictum); Valence v. Louisiana Power & Light Co. (1951, La App) 50 So 2d 847.

Maryland — State, use of Odham, v. Sherman (1964), 234 Md 179 (198 A2d 71).

Minnesota — Verkennes v. Corniea (1949), 229 Minn 365 (38 NW2d 838, 10 ALR2d 634).

Mississippi — Rainey v. Horn (1954), 221 Miss 269 (72 So 2d 434).

New Hampshire — Poliquin v. MacDonald (1957), 101 NH 104 (135 A2d 249).

Ohio — Stidam v. Ashmore (1959), 109 Ohio App 431 (11 Ohio Ops 2d 383, 167 NE2d 106).

South Carolina — Fowler v. Woodward (1964), 244 SC 608 (138 SE 2d 42); Todd v. Sandidge Constr. Co. (1964, CA 4), 341 F2d 75 (applying South Carolina law).

Wisconsin — Kwaterski v. State Farm Mut. Auto. Ins. Co. (1967), 34 Wis 2d 14 (148 NW2d 107).