Witty v. American General Capital Distributors, Inc.

DUNN, Justice,

concurring in part and dissenting in part.

I agree that this cause should be reversed, but not for the reasons set out in Chief Justice Evans’ opinion. Unlike Judge Evans, I believe that Yandell v. Delgado, 471 S.W.2d 569 (Tex.1971), applies to the Wrongful Death Act, Tex.Rev.Civ.Stat. Ann. art. 4671 et seq. (Vernon Supp.1985) as well as to the Survival Statute, Tex.Rev. Civ.Stat.Ann. art. 5525 (Vernon 1958). Yandell serves to deny any cause of action to wrongfully injured children who die before their birth.

Judge Evans refuses to allow Baby Witty a right of action for prenatal injuries because of what he interprets to be the *642 current state of the law in Texas. Then, he recognizes a right in Baby Witty’s mother under the Wrongful Death Act to limited damages “for mental anguish and for the alleged loss of her baby’s society and companionship,” relying on Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983).

The Wrongful Death Act confers a right of action upon the surviving husband, wife, child, and parents of a decedent who qualifies under the act. See Landers v. B.F. Goodrich Co., 369 S.W.2d 33 (Tex.1963). This right of action exists only where the injured party could have maintained an action for damages had death not ensued. Leal v. C.C. Pitts Sand & Gravel, Inc., 419 S.W.2d 820, 821 (Tex.1967).

The ethereal entry of Baby Witty’s mother into the Wrongful Death Act, proposed by Judge Evans, is not supported by the case law. A beneficiary under the Wrongful Death Act cannot acquire a right superior to that which could have been asserted by the decedent. Kelley v. City of Austin, 268 S.W.2d 773 (Tex.Civ.App.—Austin 1954, no writ). Entry into the statute by the decedent’s mother is inconsistent with Judge Evans’ prior statement that the decedent has no cause of action.

Hesitancy in granting a cause of action to Baby Witty must shock the conscience of all fair-minded persons. It is my opinion that our highest tribunal has not had the opportunity to make final disposition of this vital issue and that there is every reason to believe that, given the opportunity, the Texas Supreme Court will choose to follow the majority of jurisdictions and reject the requirement of live birth.

It is unjust, as well as artificial and unreasonable, to condition a right of action for prenatal injuries on whether a fatally injured child is born dead or alive. To slavishly follow the judicially engrafted proposition that an unborn child must be born alive, though it may die a few minutes after birth, is to give new vigor to the revolting common law maxim that “it is more profitable for the defendant to kill the plaintiff than to scratch him.” W. Prosser, Handbook of the Law of Torts 127 (4th ed. 1971).

Contrary to Judge Evans’ interpretation of Yandell, 471 S.W.2d 569 , it is my opinion that the Texas Supreme Court has not directly considered the proposition that the child must be born alive in order to have a right of action for prenatal injuries. In 1967, the Supreme Court expressly reserved that question for later consideration stating, “some authorities do not recognize a cause of action for prenatal injuries unless the fetus is viable at the time of injury, and that other authorities do not do so unless the child is bom alive. These questions are not before us and are reserved.” Leal, 419 S.W.2d at 822 (emphasis added). (At the time of the Leal decision, in which the fetus was both viable at injury and born alive, only Texas and Alabama had failed to accept prenatal injury as a com-pensable tort.)

In 1971, the question of “viability at the time of injury” was presented to our Supreme Court and that court, without opinion, affirmed the Fort Worth Court of Appeals, adopting the Fort Worth court’s language as follows:

We hold that subject, of course, to the proof required in such cases, a cause of action does exist for prenatal injuries sustained at any prenatal stage, provided the child is born alive and survives.

Yandell v. Delgado, 471 S.W.2d 569, 570 (Tex.1971) (emphasis added).

A careful review of the Fort Worth Court of Appeals’ opinion in support of their holding, “provided the child is born alive and survives,” can only be viewed as a vestigial appendage from previous cases. In the portion of the opinion that appears to consider the requirement of live birth the court stated:

the reason for the adoption of a rule favoring the unborn child is stronger when we are dealing with the health of the child and his ability after birth to seek his complete happiness and perform his full duty as a citizen and member of society than when we are dealing merely with his property rights.

*643 Delgado v. Yandell, 468 S.W.2d 475, 477 (Tex.Civ.App.—Fort Worth 1971). This seems to say that we are not concerned if the wrongdoer kills the child; only, if the child survives, we are concerned about the cost of care.

The Fort Worth Court of Appeals also commented that historically the cases represented a trend toward extending the doctrine that an unborn child will be regarded as in esse when beneficial to the child, citing 10 A.L.R.2d 1051, 1071 . Examination of the ALR cite finds a statement such as this but with no case cited in support.

In an over-zealous attempt to find precedent for liability at any prenatal stage, the court of appeals selected a 1933 Canadian case, ignoring a United States district court case decided in 1946 that allowed recovery for prenatal injuries without conditioning such recovery on “born alive and survived.” Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C.1946). (Discussed infra.) Quoting this old, 1933 case, the Fort Worth court of appeals stated in Yandell:

However, the holding in Montreal Tramways v. Leveille, Can.S.C. 456, (1933) 4 Dom.L.R. 337, appears broad enough to support recovery for prenatal injuries sustained at any prenatal stage provided the injured child was “bom alive and survived. ”

468 S.W.2d at 478 (emphasis added).

With the Canadian opinion as the apparent authority for “bom alive and survived,” and the factual situation that the court was dealing with, i.e., an injured child born alive, the Court of Appeals rejected the requirement of viability and attached the unnecessary proviso, “provided the child is bom alive and survives. ”

In my opinion, the Forth Worth court did not directly address the precise issue before us today since the live birth of the child in that case was not in issue. Baby Witty has, for the first time, presented us with the issue of a child having the ability to survive outside the womb, who was wrongfully injured, and who died of those injuries prior to birth.

An historical examination of the proposition that an unborn child must be “born alive” finds its inception in the lack of common-law precedent, the state of scientific knowledge at the time of the archetypical opinions, and the technical problems of proof that might result in injustice.

The common law generally recognized the property rights of the unborn, and protected the unborn under the criminal law. In support of this, Blackstone, after declaring the right of personal security to be an absolute right, said:

The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins, in contemplation of law, as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child ... if anyone beat her, whereby the child dieth in her body and she is delivered of a dead child; this, though not murder, was by the ancient law, homicide or manslaughter....

1 W. Blackstone, Commentaries * 130.

Civil recognition of the rights of unborn victims of personal injury, or death, finds its evolution in the judicial process. At least one English court went so far as to write that “children in the mothers’ womb are entitled to all the privileges of other persons,” Thellusson v. Woodford, 4 Ves. Jun. 227, 31 Eng.Rep. 117 (1798) Butler, J. However, it does not appear that any case of the English common law ever allowed a civil recovery for personal injury to the unborn. Dietrich v. Inhabitants of Northampton, 138 Mass. 14 , 52 Am.Rep. 242 (1884). This absence of common-law precedent was later used by Justice Holmes in Dietrich, as proof that the common law had rejected the notion that “unborn children” have any civil duty owed to them, and held that no civil duty was owed to one not yet in being, adopting the view that an unborn child was still a part of the mother. It is interesting to note that Justice Holmes would later write, “it is revolting to have *644 no better reason for a rule of law than that it was laid down [or, presumably, not laid down] in the time of Henry IV.” Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897).

In 1900, the Illinois Supreme Court decided Allaire v. St. Luke’s Hospital, and supported the “Dietrich-Walker” conclusion “[t]hat a child before birth is, in fact, a part of the mother,” and “there is no precedent for the action [of the unborn child],” commenting that “while it is true that this is nonconclusive that the action may not be maintained ... [since] similar circumstances must have before occurred, it is entitled to great weight” citing Walker v. Railway Co., 28 LR 69 (1891), evidencing that the majority was greatly influenced by the absence of any common-law authority. 184 Ill. 359 , 56 N.E. 638 (1900).

Justice Carrol C. Boggs, dissenting in Allaire, responded to that argument by referring to Lord Mansfield’s statement that, “[t]he law of England would be an absurd science were it founded upon precedents only.” 56 N.E. at 640, quoting 1 Kent Comm. 477. He further reasoned that “new and peculiar cases must also arise from time to time, for which the court must find the governing principle, and these may either be referred to some principle previously declared, or to some one which now, for the first time, there is occasion to apply.” Id. Justice Boggs characterized the majority’s reliance on the lack of precedent as an attempt to avoid a novel question of law, and further observed that the presumption that an unborn child is no more than a portion of the mother, especially after viability, ignores proven medical fact. Justice Boggs used “born alive” as a device to prove that the child in Al-laire was alive at the time of the prenatal injury and was not, in fact, a part of its mother. He reasoned in his opinion that “the argument that there can be no certainty that an unborn child is dead or alive when an injury is inflicted upon the mother is answered by the declaration that the plaintiff was bom alive, and is a living human being. ” (emphasis added). “Born alive” was necessary at a time when medical science was not sufficiently advanced to determine the status of a child in the womb. In applying Judge Boggs’ reasoning to the present case, “born alive” is unnecessary. The sonogram performed a few hours after the injury showed that Baby Witty was alive. Six days later, another sonogram showed that Baby Witty had died.

In Texas, Magnolia Coca Cola Bottling v. Jordan, 124 Tex. 347 , 78 S.W.2d 944 (1935), became the landmark case in rejecting recovery for prenatal injuries, supporting the majority in Allaire.

Finally, 60 years after Dietrich, in Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C.1946), a federal district court broke the hold that the Dietrich Rule had over the common law by allowing recovery to an infant plaintiff for injuries sustained when taken from the mother’s womb through defendant’s alleged professional malpractice. Justice McGuire, in addressing the argument that an unborn child is merely a part of the mother, noted, “[w]hy a ‘part’ of the mother under the law of negligence and a separate entity and person in that of property and crime? Why a human being, under the civil law, and a non-entity under the common law?” Id. at 140-41 . “The absence of precedent should afford no refuge to those who by their wrongful act, if such be proved, have invaded the right of an individual.” Id. at 142 . He further dismissed the argument of remoteness of the injury from the wrongful act, carried forward from Dietrich, by reasoning that there was adequate proof of direct injury and of viability of the fetus at time of injury.

The Bonbrest court did not condition recovery for prenatal injuries upon the plaintiff being “born alive”; indeed, their decision was based upon the viability of the child at the time of the injury, and viability was proven by the subsequent live birth of the plaintiff. Since Texas no longer requires viability as a prerequisite to a wrongful death action, the requirement of “live birth,” which was of necessity used to prove that the unborn child was living at *645 the time of the injury, is no more than a relic of a less sophisticated age. As Justice McGuire noted, in this landmark opinion, “the law is presumed to keep pace with the sciences and medical science certainly has made progress since 1884.” 65 F.Supp. at 143 .

Bonbrest- was decided in 1946 when there was no reliable test to determine the unborn child’s condition; the court stated, “[hjere, however, we have a viable child —one capable of living outside the womb— and which has demonstrated its capacity to survive by surviving — are we to say now it has no locus standi in court or elsewhere?” 65 F.Supp. at 140 (emphasis added).

After Bonbrest , the “Dietrich Rule,” which denied recovery for all prenatal injuries, was reversed so rapidly that one writer observed, “[sjeldom has there been such a rapid and overwhelming reversal of firmly established authority as in the trend toward allowing recovery for prenatal injuries to a viable infant.” Keeton, Creative Continuity in the Law of Torts, 75 Harv. L.Rev. 463, 484-85 (1962).

The term “born alive,” as used in Bon-brest, and in the dissent in Allaire, is therefore only a rebuttal to arguments that it is impossible to say whether the unborn child was alive at the time the injury occurred. Following Bonbrest , the plaintiffs requirements of being viable, injured, and born alive (the fact situation in Bonbrest) became adopted by the majority of the courts as a prerequisite to this cause of action. A review of the roots of viability reveals that it was the Dietrich court that first established viability, i.e., “capability of living.” The first state to reject the need for viability was New York in Kelly v. Gregory, 282 A.D. 542 , 125 N.Y.S.2d 696 (1953), reasoning that one can affect another individual’s life, for which that individual should receive compensation, and rejecting viability in favor of a biological test that recognized “the moment of biological separability” as being the moment of conception, and holding that an injury received by a an unborn child at any time after conception is actionable by a surviving infant who can prove both actual and proximate causation. “Whether viable or not at the time of the injury, the child sustains the same harm after birth and, therefore, should be given the same opportunity for redress.” Smith v. Brennan, 31 N.J. 353 , 157 A.2d 497, 504 (1960).

In 1967, the Texas Supreme Court recognized Bonbrest , overruled their 1935 ruling in Magnolia Coca Cola Bottling Co., and stated, “a right of action exists under the Wrongful Death Statute only where the injured party could have maintained an action for damages had death not ensued.... So the question is whether this “viable” infant “bom alive" would have had a cause of action against Respondents had she survived, (emphasis added). We hold in the affirmative_” Leal, 419 S.W.2d at 821 . In Leal , the court was faced with a viable infant that was born alive, and so tailored their opinion — expressly reserving the questions of “viability” and “born alive.”

Then, in 1971, the Texas Supreme Court joined the trend and did away with the need for viability at the time of injury in the case of Yandell v. Delgado, 471 S.W.2d 569 (Tex.1971). It is interesting to note, at this point, that the plaintiff in Yandell was not viable at the time the injuries occurred, but was born alive. As of this date, the term “born alive” persists in Texas because our Supreme Court has never been presented with the appropriate fact situation to directly address the issue. We are now faced with a case specifically turning on the live birth requirement.

The central issue now is whether live birth should be a requirement for a cause of action based upon prenatal injury to a child. The courts are split. The majority of the jurisdictions that have considered the question have ruled that “live birth” should be rejected as a prerequisite, some calling the requirement of live birth a living anachronism, and others illustrating the incongruity of such a requirement. “[I]f the trauma is severe enough to kill the child, then there could be no recovery; *646 but if less serious, allowing the child to survive, there might be recovery. Again, if the fatality was immediate, the suit could not prevail, but if the death was protracted by a few hours, even minutes, beyond birth, the claim could succeed. Practically, it would mean that the graver the harm the better the chance of immunity.” Todd v. Sandidge Construction Co., 341 F.2d 75, 77 (4th Cir.1964). Other courts argue that the requirement of live birth is a legal throwback which ignores proven medical fact. As of 1984, only five jurisdictions that have considered the question of “live birth” have denied a cause of action. 84 A.L.R.3d 411 (Supp.1984).

The jurisdictions that retain the live birth requirement defend it with arguments relating to fears of fraud and double recovery, legislative prohibitions against considering an unborn child to be a “person” within the meaning of the applicable wrongful death statute, lack of duty, and public policy considerations.

Pear that fraudulent claims will overwhelm the courts if this cause of action is allowed “should have no weight to prevent legitimate claims from being heard, for fraud can be dealt with in this class of cases, just as in others, and the detection and the elimination of faked contentions present no novel questions for judicial bodies.” Amann v. Faidy, 415 Ill. 422 , 114 N.E.2d 412 (1953), overruling Allaire v. St. Luke’s Hospital, supra.

The Texas Wrongful Death Act does not specifically define “person,” and therefore, the courts are left to construe its meaning without guidance from the legislature. The legislature has attempted to amend the Texas Wrongful Death Act to read, in pertinent part, “the term ‘person’ as used in this article includes an unborn child at any state of its biological development from the time of its conception throughout pregnancy until its live birth.” Senate Bill 668 did not pass. 1 However, as Justice Spears so aptly stated, “[T]his court should not be bound by the prior legislative inaction in an area like tort law which has traditionally been developed primarily through the judicial process.” Sanchez, 651 S.W.2d at 252 .

Justice Cadena addressed the issue of “lack of duty” in his dissenting opinion in Leal v. C. C. Pitts Sand & Gravel, Inc., 413 S.W.2d 825, 830, n. 18 (Tex.Civ.App.—San Antonio (1967):

It is true that the existence of a duty, and the breach of such duty, constitute the foundation of liability in negligence law. But this does not compel the conclusion that the person to whom the duty is owed must be known or even knowable. ... The statement that there was “no duty” begs the essential question— whether the interests of the plaintiff are entitled to legal protection against defendant’s conduct.

The Texas Supreme Court reversed the majority opinion in Leal, and cited Justice Cadena’s dissent with approval in recognizing a right of action for prenatal injuries.

A plaintiff should not be denied a substantive right Simply because necessary proof may be difficult. One Texas court noted, “Even the dice shooter who is faced with the uneviable task of rolling a ten has the opportunity to try; no one snatches the dice from his hand.” Terrill v. Garcia, 496 S.W.2d 124 (Tex.Civ.App.—San Antonio 1973, writ ref’d n.r.e.) (Cadena, J., dissenting). The argument of a potentially inadequate recovery should no longer be used to preclude the right of a stillborn child to a cause of action for prenatal injuries.

States such as Texas, which have abandoned the requirement of viability at the time of injury as a prerequisite to recovery for prenatal injury should, when the opportunity presents itself, also abandon the requirement of live birth where an unborn child is injured, but dies prior to birth. As Chief Justice Stone so profoundly observed: “If our appraisals are mechanical and superficial, the law which they generate will likewise be mechanical and superficial, to become at last but a dry and sterile *647 formalism.” Common Law in the United States, 50 Harv.L.Rev. 3 (1936-7).

I urge that we abandon the anachronistic judicial requirement of “live birth,” and allow Baby Witty a cause of action for prenatal injuries. Texas was next to last among the states of our nation to accept prenatal injury as a compensable tort. See Leal, 419 S.W.2d at 820 . Hopefully, we will not choose the penultimate position again. The great State of Texas should take its place among the majority of jurisdictions who have already granted rights to children like Baby Witty under their respective statutes.

. Morrison, Torts Involving the Unborn — A Limited Cosmology, 31 Baylor L.Rev. 131, 148 n. 112 (1979). I wish to acknowledge the great help that I received in my research from this article.