Damasiewicz v. Gorsuch

Markell, J.,

delivered the following dissenting opinion, in which Collins, J., concurred.

On page 1 of Holmes’s “Common Law”, published about two years before he became a member of the Supreme Judicial Court of Massachusetts, is the often quoted statement, “The life of the law has not been logic; it has been experience.” “Experience” in the law is primarily decision of cases. Mr. Justice Holmes, until late in life he made an exception of constitutional questions, adhered consistently to the doctrine and practice of stare decisis.

In Detrich v. Inhabitants of Northampton, 138 Mass. 14 , the decision and the opinion were based not on “ignorance of medical facts” or “medical science”, but upon knowledge of law. Medical facts and medical science are not mentioned, but to refute a statement ascribed to Lord Coke the opinion goes back to the Year Book of 1 Edward III. From a review of legal authorities it is *444 shown that the legal status of an unborn child is different in three branches of the law, property, crime, and personal injury. Incidentally the House of Lords, as recently as 1935, has reversed the Court of Appeals to apply a limitation to the almost universal rule that for the purpose of acquiring (but not transmitting) property rights an unborn child is regarded as in esse from the moment of conception. Elliot v. Joicey (Lord), [1935] A. C. 209, 238-241.

Nor was the opinion in the Dietrich case based on ignorance of one of the central themes in Holmes’s book— the concept of negligence in trespass and in case. The Common Law, pp. 79-107. In 1884 Holmes knew more about the common law, early and late, than I shall ever know. I am satisfied that the opinion in the Dietrich case was based on legally and historically sound foundations.

To undertake to decide, “on the basis of present day knowledge” of “modern medicine”, differently from the way it would have been decided in 1776, what the common law was in England on July 4, 1776, and “always has been” in Maryland, seems not “realistic” but fantastic. The hundreds of judges of state courts of last resort are neither chosen nor qualified to assume legislative power over every question of law which has not been expressly decided in their own state. Of course, decisions in other states are not binding. But neither in theory nor in practice do American judges live or work in forty-eight separate idea-proof compartments. The Restatement of the law by the American Law Institute is a monument, erected at large expenditure of time and labor by law professors, judges and practising lawyers — and of money by one or more foundations — to the idea that in America there is a common law, and that it is something more than forty-eight digests of decisions. Judge Pound said, for the court, in Drobner v. Peters, 232 N. Y. 220, 223 , 133 N. E. 567, 568 , 20 A. L. R. 1503, “At common law a cause of action for personal injuries did not survive if death resulted from another’s negligence or wrongful act. Lord Campbell’s Act, passed *445 in England in 3846, and followed generally in this state (Code Civ. Proc. § 1905), was necessary to correct this omission. May this court attach an unnatural meaning to simple words and hold independently of statute that a cause of action for prenatal injuries is reserved to the child until the moment of its birth and then accrues?” The silence of the Maryland legislature for over three hundred years, sixty-seven years since Dietrich v. Northampton, I think, falls little short of an affirmative legislative acceptance of the common law as interpreted everywhere up to 1949. State, for Use of Joyce v. Hatfield et al., 197 Md. 249 , 78 A. 2d 754 . As Mr. Justice Holmes said (in a tax case), “Upon this point a page of history is worth a volume of logic”. New York Trust Co. v. Eisner, 256 U. S. 345, 349 , 41 S. Ct. 506, 507 , 65 L. Ed. 963 .

We need not — -indeed, before we take over the legislative function, we must not — shut our eyes to the possible practical consequences of our decisions. It may be true (but if it is, 1 do not judicially or actually know it) that “physicians of today would have less trouble with the problem”, seemingly still obscure, of course of congenital ills. Legislators have been cautious about trying to bring the law into accord with “modern medical science”, notably in the matter of sanity and criminal responsibility. Whether the persuasive abstract reasoning in the opinion of a plurality of the court should prevail over practical consequences that might result is properly a legislative, not a judicial, question.

I think the judgment below should be affirmed, in accordance with the decisions of the highest courts of Massachusetts, New York, New Jersey, Pennsylvania, Rhode Island, Illinois, Michigan, Wisconsin, and Alabama.

Judge Collins authorizes me to say that he concurs in this opinion.