Stidam v. Ashmore , 109 Ohio App. 431 ( 1959 )

This case presents the question, hitherto undetermined in Ohio, whether an action may be maintained for the wrongful death of a viable unborn child which is subsequently stillborn.

The petition of plaintiff, appellant herein, administratrix of such a child, Patricia Sue O'Brien, alleged negligence of the defendant on March 1, 1957, which proximately caused the death of such child between that date and its stillbirth on March 6, 1957.

A demurrer to the petition was sustained and judgment of dismissal entered. This appeal is from such ruling and judgment.

The assignments of error are as follows:

1. The court erred in sustaining the demurrer of the defendant-appellee to the petition of the plaintiff.

2. The court erred in holding that the plaintiff's position (petition) does not and cannot state a cause of action.

3. The court erred in entering final judgment in favor of the defendant-appellee.

It would be futile to attempt to reconcile the varied and conflicting decisions in different states upon the question of the existence of any right of action for injury to an unborn child. Ohio is committed to the minority view recognizing such right. Williams, an Infant, v. Marion Rapid Transit, Inc.,152 Ohio St. 114, 87 N.E.2d 334. The Supreme Court also recognizes the right of the administrator of a child which is born alive, but subsequently dies, to bring an action for the wrongful death of such child as the result of prenatal injuries.Jasinsky, Admr., v. Potts, 153 Ohio St. 529,92 N.E.2d 809. It is our view that the language and the logic of the Supreme Court in these two cases points to the existence of a right of action in the present case.

Section 2125.01, Revised Code, confers a right of action for wrongful death. The section reads, in its pertinent part:

"When the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued * * * 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 * * *."

There has been considerable judicial discussion as to whether a viable unborn child is a person. Many courts have determined that it should be so considered where a benefit will result to the child. Apparently in view of the frequent existence of such purpose of benefiting the child, some have encountered great difficulty in determining whether such a child is to be considered a person for other purposes.

It is our view that a viable unborn child is either a person or not a person, and that to consider it one or the other for all purposes would resolve most of the conflict and uncertainty on the present question.

The Supreme Court has determined that such a child is a person, Williams, an Infant, v. Marion Rapid Transit, Inc., supra (152 Ohio State, 114), and is therefore entitled to the constitutional rights of a person under that provision of Section 16, Article I of the Constitution, which reads:

"All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. * * *"

Judge Matthias, speaking for the entire court in theWilliams case, said, at page 127:

"* * * the question presented to this court is within a very narrow scope: Was the plaintiff at the time of her injury a person within the meaning of Section 16, Article I of the Constitution?" (Emphasis added.)

Continuing, Judge Matthias answered that question, at page 128:

"To hold that the plaintiff in the instant case did not suffer an injury in her person would require this court to announce that as a matter of law the infant is a part of the mother until birth and has no existence in law until that time. In our view such a ruling would deprive the infant of the right conferred by the Constitution upon all persons, by the application of a time-worn fiction not founded on fact and within common knowledge untrue and unjustified."

Such conclusion is supported by accepted scientific proof.

The latest guide supplied us by the Supreme Court is the case of Jasinsky, Admr., v. Potts, supra (153 Ohio State, 529), wherein the reasoning of the Williams case is followed. Whereas the Williams case involved an action begun on behalf of a living infant for prenatal injuries, the Jasinsky case was one for wrongful death of a child who was born alive but subsequently died as a result of prenatal injuries.

While the Supreme Court has not yet been called upon to decide whether a cause of action exists for the wrongful death of a viable child which occurred shortly before its birth, it is our view that the principles declared by that court in these two cases lead logically and irresistibly to the conclusion that such a cause of action does exist.

Those earlier words of the court, repeated and approved in the Jasinsky case, although originally used in a different kind of case, express the logic of our conclusion:

"`* * * It would be absurd if one could recover for injuries sustained in such manner, and there could be no recovery on behalf of those damaged if the injuries were sufficiently severe to result in death.'" Jasinsky, Admr., v. Potts, supra (153 Ohio St. 529), at page 536.

The wrongful death statute, Section 2125.01, Revised Code, grants a derivative right. The test of the existence of that right is that the injury "would have entitled the party injured to maintain an action and recover damages if death had not ensued." If death had not ensued, the child in our present case would have been entitled to maintain an action. We are unable to reconcile the two propositions, that if the death occurred after birth there is a cause of action, but that if it occurred before birth there is none. Or, to adapt the words of the Supreme Court just quoted, it would be absurd if recovery could be had for such injuries, unless those injuries were so severe as to cause death before birth.

Such a distinction could lead to bizarre results. Suppose, for example, viable unborn twins suffered simultaneously the same prenatal injury of which one died before and the other after birth. Shall there be a cause of action for the death of the one and not for that of the other? Surely logic requires recognition of causes of action for the deaths of both, or for neither. Inasmuch as the Supreme Court has already determined that there is a cause of action in the case of the one, we can see no valid reason for denying it in the other.

It is true that there is language in the Williams case indicating that if the child did not survive, no right of action could accrue to it so as to survive in favor of the child's representative. This language was obiter, being unnecessary to the decision in that case. Cognate language in that decision to the effect that the child was to be considered in esse only when the benefit of the child would thereby be promoted is disposed of by the court in the Jasinsky case (153 Ohio St.), at page 532, as follows:

"A sufficient answer to this contention of the defendant is to say that the language of the opinion just quoted stressed the right of the child to recover because the child was maintaining the action in that case and the language of the opinion was appropriate to that situation. There was no occasion to refer to or discuss the rights of those not interested in or affected by the litigation in that case."

In view of the positive implications in the latter case, we feel no compulsion to follow these dicta to the contrary in the earlier case.

We recognize that there may be procedural and technical problems involved in the pursuit of the plaintiff's right of action in the present case. But once we have accepted the basic proposition that the decedent was a person at the time of injury, the substantive rights necessarily resulting from that fact may surely be enforced, whatever may be the practical difficulties involved.

It is our conclusion that the demurrer to the petition should have been overruled, that plaintiff's petition stated a valid cause of action, and that judgment should not have been entered for the defendant. The several assignments of error are therefore well taken.

The judgment is reversed, and the cause is remanded for further proceedings according to law.

Judgment reversed.

KERNS, J., concurs.