Marlow v. Krapek , 20 Mich. App. 489 ( 1969 )

20 Mich. App. 489 (1969) 174 N.W.2d 172

MARLOW
v.
KRAPEK

Docket No. 6,914.

Michigan Court of Appeals.

Decided December 4, 1969. Application for leave to appeal filed December 24, 1969.

Arthur L. Peterson (Harry M. Titus, of counsel), for plaintiff.

Heilman, Purcell, Tunison & Cline, for defendant.

Before: J.H. GILLIS, P.J., and R.B. BURNS and V.J. BRENNAN, JJ.

V.J. BRENNAN, J.

This is an action brought on behalf of Eddie J. Marlow, Jr., a minor, to recover damages for injuries allegedly sustained as the result of the defendant's running a red light and striking the automobile in which Eddie J. Marlow, Jr.'s mother was a passenger. At the time of impact, Eddie J. Marlow, Jr., was a nine-month-old fetus. He survived both the impact and his birth, his birth occurring some eight hours after the accident. The defendant moved for summary judgment on the ground that prenatal injuries are not actionable. The trial court granted his motion and we affirm.

Our affirmance, like the trial court's ruling, is dictated by Newman v. City of Detroit (1937), 281 Mich 60. In that case an action was brought under the survival act^[1] to recover damages for prenatal injuries allegedly caused by the negligent operation of the defendant's streetcar 22 days before Newman's birth. Although the injuries ultimately caused the decedent's death, or at least so it was alleged, he lived on for some three months after birth. The Supreme Court concluded that the "overwhelming weight of authority" did not allow recovery for prenatal injuries and held that the plaintiff was without a cause of action. Since Newman was decided, advancement in medical science has removed the problems of proof in such cases, and those courts and text writers who have considered the problem have been nearly unanimous in removing the conceptual barriers to recovery. (The decisions of these courts and the works of various text writers are cited and extensively quoted in LaBlue v. Specker [1960], 358 Mich 558, and the dissenting opinion of Justice T.M. KAVANAGH in Powers v. City of Troy [1968], 380 Mich 160.) It may therefore be argued that the "overwhelming weight of authority" on which Newman was decided no longer exists. Nevertheless, Newman is the law on the question in Michigan and will continue to be the law until the Supreme Court decides otherwise. Mitchell v. Metal-Assemblies, Inc. (1966), 3 Mich App 143; Abendschein v. Farrell (1968), 11 Mich App 662, aff'd 382 Mich 510; Maxwell v. Maxwell (1969), 15 Mich App 607. Until that time, persons suffering from prenatal injuries caused by the negligent conduct of others will go uncompensated, their only consolation being the fact that prenatal injuries were not actionable at common law. We agree with the view expressed by several members of the Court in Powers v. City of Troy, supra, that Newman should be reconsidered, and think this case to be the proper vehicle for such a reconsideration.

Plaintiff's contention that LaBlue v. Specker, supra, overrules Newman by implication is of no avail. In LaBlue it was held that a child is entitled to damages under the dramshop act^[2] for the death of his father, even though the child is en ventre sa mere at the time of death. The Supreme Court in Powers, supra, not only pointed out that LaBlue is inapposite to cases involving physical injury to the fetus, but expressly rejected the contention that LaBlue overrules Newman by implication.

The order granting defendant's motion for summary judgment is affirmed.

All concurred.

NOTES

[1] CL 1929, § 14040 (Presently see MCLA § 600.2921 [Stat Ann 1962 Rev § 27A.2921].).

[2] MCLA § 436.22 (Stat Ann 1969 Cum Supp § 18.993).