JUSTUS v. ATCHISON (1975)

Plaintiffs, Linda Sue and Jeffrey A. Justus, appeal from judgments in favor of defendants Joseph Atchison, M.D., Charles F. Schultze, M.D., and Goleta Valley Community Hospital, dismissing with prejudice the second and third causes of action of their third amended complaint for medical malpractice. These judgments followed the sustaining, without leave to amend, of defendants's general demurrers to these causes of action.

Plaintiffs, Karen K. and Robert F. Powell, appeal from similar judgments in favor of the same defendants except that John F. McLychok, M.D., is substituted for Charles F. Schultze, M.D. These judgments likewise followed the sustaining, without leave to amend, of the general demurrers of these defendants to plaintiffs' second and third causes of action of their third amended complaint.

In the second cause of action of each complaint, plaintiff parents, as sole heirs, seek to state a cause of action for the wrongful death in delivery of their fully developed, normal stillborn son. In the third cause of action of each complaint, plaintiff fathers seek to state a cause of action for physical injury resulting from the emotional trauma each experienced in watching the delivery of their stillborn infants.

THE APPEALABILITY OF THE JUDGMENTS

The first question presented by both appeals is whether they should be dismissed because they have been taken from judgments that dispose of less than all of the causes of action between the parties. (See Vasquez v. Superior Court, 4 Cal.3d 800, 806, 94 Cal.Rptr. 796, 484 P.2d 964.) In the Justus case there remains pending against defendants the mother's causes of action for damages from the defendants (1) for injury to her caused by the allegedly negligent delivery of her stillborn son, (2) for injuries caused to her by her allegedly negligent post-delivery care by defendants, and (3) for assault and battery upon her by defendants by reason of such allegedly wrongful delivery of her stillborn son performed without her informed consent.

In the Powell case there remains pending against defendants the mother's cause of action for injury caused to her by the allegedly negligent delivery of her stillborn son.

Plaintiffs in both cases contend that the one-final-judgment rule does not apply to these cases because all the causes of action pled have more than a single objective. We are not sure that plaintiffs are right in this contention. Generally, plaintiffs' five causes of action in the Justus case and the three causes of action in the Powell case (with the exception of the postnatal care cause of action in the Justus case) seek to recover from defendants all possible damages stemming from the two allegedly negligent deliveries.

A judgment is appealable by a party if it disposes of the case as to him. (Young v. Superior Court, 16 Cal.2d 211, 214, 105 P.2d 363; McClearen v. Superior Court, 45 Cal.2d 852, 856, 291 P.2d 449.) The judgments of dismissal under appeal did dispose of all causes of action in which the fathers are plaintiffs. There is, though, one complication. This is that the mothers, who have, as just stated, remaining undisposed of causes of action, are joined with the fathers in one of the two causes of action dismissed in each case—namely, the wrongful death cause of action for the loss of the stillborn child. These statutory causes of action are single, joint and indivisible. (Watkins v. Nutting, 17 Cal.2d 490, 498, 110 P.2d 384, but see Helling v. Lew, 28 Cal.App.3d 434, 438, 104 Cal.Rptr. 789.)

We are advised that the mothers' remaining causes of action have not proceeded to trial in view of the pendency of these appeals. These cases thus present the question whether they will be disposed of through piecemeal trials or piecemeal appeals. If appeals do not lie from the dismissals of the wrongful death causes of action, we may treat those appeals as petitions for writ of mandate and thus dispose of them on their merits. (See U. S. Financial v. Sullivan, 37 Cal.App.3d 5, 11–12, 112 Cal.Rptr. 18; Clovis Ready Mix Co. v. Aetna Freight Lines, 25 Cal.App.3d 276, 281–282, 101 Cal.Rptr. 820.) Or we may adopt the view taken by another division of this statewide court recently in Schonfeld v. City of Vallejo, 50 Cal.App.3d 401, 418, 123 Cal.Rptr. 669, and hold that in conformity with federal practice separately appealable judgments may be rendered on counts that present separate claims for relief. In any event, it seems to us that these cases may be more speedily and economically handled if we permit piecemeal appeals in preference to insisting upon piecemeal trials. Therefore, in accordance with the apparent wishes of all parties to these appeals, we will not treat the appeals from the dismissals of the wrongful death causes of action as premature; instead we hold that such appeals lie under the peculiar circumstances of these cases, notwithstanding the one-final-judgment rule. (Cf. Guntert v. City of Stockton, 43 Cal.App.3d 203, 208–209, 117 Cal.Rptr. 601.)

THE MEANING OF ‘MINOR PERSON’

The question whether the term ‘minor person,’ as used in Code of Civil Procedure section 377 creating the statutory cause of action for wrongful death, includes an unborn child has twice been answered in the negative by this statewide court. In Norman v. Murphy, 124 Cal.App.2d 95, 268 P.2d 178 a case then of first impression in this state and involving the death of an unborn child of over four and one-half months as a result of injuries to its mother in an automobile accident (Norman at 96, 268 P.2d 178), this court based its negative answer largely on the existence of Civil Code sections 26 and 29 and Penal Code section 270 as indicative of a contrary legislative intent. (Id. at 97–98, 268 P.2d 178.)

Civil Code section 26 provides that the period of minority must be calculated from the first minute of the day upon which persons are born to the same minute of the corresponding day completing the period of minority. This computation statute indicates that the minority of a person begins only at birth.¹

Civil Code section 29, on the other hand, provides, in pertinent part, that ‘[a] child conceived, but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth.’ (Emphasis added.) This statute protects the interests of an unborn child from the moment of conception but only if that child is subsequently born alive. It would not therefore protect the interests of the unborn children involved in the cases before us or of its parents.

Penal Code section 270, the criminal failure-to-support statute, goes further. It says: ‘A child conceived but not yet born is to be deemed an existing person insofar as this section is concerned.’

In Norman the court concluded that both Civil Code section 26's definition of the period of minority as beginning at birth and the express coverage of unborn children in the other two statutes point to the conclusion that the term ‘minor person,’ as used in Code of Civil Procedure section 377, does not impliedly include an unborn child. (Id. at 97, 268 P.2d 178.)

In Bayer v. Suttle, 23 Cal.App.3d 361, 100 Cal.Rptr. 212, this statewide court, with one justice of the panel dissenting, refused to depart either from the Norman construction of the term ‘minor person’ in section 377 or from its rationale in the case of the death of a stillborn child fatally injured in an automobile accident in the eighth month of her mother's pregnancy. (Bayer at 362–364, 100 Cal.Rptr. 212.) The court did note that California was no longer in the majority in its refusal to recognize a cause of action for the wrongful death of an unborn child but observed that the failure of the Legislature to include in its intervening amendments to section 377 express language broadening the meaning of minor person to include an unborn child demonstrated its acquiescence in the Norman construction of section 377. (Id. at 364, 100 Cal.Rptr. 212; see Bishop v. City of San Jose, 1 Cal.3d 56, 65, 81 Cal.Rptr. 465, 460 P.2d 137.)²

Since the Bayer decision, our Supreme Court has decided the just-mentioned case of Steed v. Imperial Airlines, 12 Cal.3d 115, 115 Cal.Rptr. 329, 524 P.2d 801. The single issue on that appeal was whether a stepchild, treated in all respects as a natural child but not formally adopted by the deceased stepfather, could maintain an action for the wrongful death of the stepfather under Code of Civil Procedure section 377, which at the time the alleged cause of action arose limited such causes of action to ‘heirs' and ‘personal representatives' of the deceased in their behalf. (Steed at 118, 115 Cal.Rptr. 329, 524 P.2d 801.) The court pointed out that the category ‘heirs'—those who inherit from the deceased in the event of intestacy—did not include stepchildren (id. at 119, 115 Cal.Rptr. 329, 524 P.2d 801) and ‘absent a constitutional basis for departure from a clear expression of legislative intent,’ it was bound thereby. (Id. at 120, 115 Cal.Rptr. at 332, 524 P.2d at 805.) It also noted that when the Legislature added a third category of possible parties-plaintiff in 1968 in wrongful death actions, that of ‘dependent parents' (Stats.1968, ch. 766, p. 1488, § 1), it did so by express amendment rather than including the new category within the existing one of ‘heirs.’ (Id. at 121, fn. 4, 115 Cal.Rptr. 329, 524 P.2d 801.)³

The unborn children, with whom we are concerned in these cases, apparently died during the process of delivery or assisted birth. There appears to be no doubt that they were born dead. In this respect our cases differ from People v. Chavez, 77 Cal.App.2d 621, 176 P.2d 92, where a manslaughter conviction of a mother for the killing of her second illegitimate baby was affirmed on the basis that there was substantial evidence that the killing occurred immediately after birth rather than immediately prior thereto. (Chavez at 622–623, 627, 176 P.2d 92.) But Chavez has since been construed by our Supreme Court as standing for the proposition, to which that court adheres, ‘that a viable fetus ‘in the process of being born’ is a human being within the meaning of the homicide statutes.' (Keeler v. Superior Court, 2 Cal.3d 619, 637, 87 Cal.Rptr. 481, 493, 470 P.2d 617, 629.) If this be so, by reasonable analogy, could not such a fetus in the process of being born be a ‘minor person’ within the meaning of Code of Civil Procedure section 377?

We do not, however, so hold. The Legislature in extending the coverage of the particular homicide statute construed in Keeler (Pen.Code, § 187, subd. (a)) included ‘fetus' as a separate additional category rather than as coming within the existing category of ‘human being’ as originally proposed. (Compare Stats.1970, ch. 1131, § 1, p, 2440, with Assembly Bill 116, 1970 Reg.Sess. as introduced February 19, 1970.⁴ It would seem that both with regard to possible parties-plaintiff and with respect to those for whose death recovery may be had, the words of section 377 have been strictly and literally construed upon the premise that any departure from such meaning should be accomplished by the Legislature through express amendment.

Thus our courts have rejected amendment of section 377 by judicial implication. The only amendments that have occurred have been express and have been made by the Legislature. In view of this history we see no reason to depart in these cases from a strict and literal construction of section 377.

This construction must then obtain unless constitutional compulsion dictates otherwise. The question of the possible unconstitutionality of such construction of the term ‘minor person’ in section 377 was not presented to the court in either Norman or Bayer.

THE EQUAL PROTECTION PROBLEM

As construed above, Code of Civil Procedure section 377 makes a classification by virtue of which the parents of a wrongfully killed stillborn child are treated differently than parents of a child wrongfully killed after live birth.⁵ As a result of this classification, in the case of twins, one of whom dies just before birth and the other just after birth, the parents would have standing to maintain an action for wrongful death with respect to the latter but not the former. This demonstrates that in practice the classification may in specific instances result in some inequality; however, ‘A classification having some reasonable basis does not violate equal protection merely because in practice it results in some inequality.’ (Metropolitan Water Dist. v. Marquardt, 59 Cal.2d 159, 188, 28 Cal.Rptr. 724, 740, 379 P.2d 28, 44.)

As our Supreme Court said in Steed v. Imperial Airlines, supra, 12 Cal.3d 115, 124, 115 Cal.Rptr. 329, 334, 524 P.2d 801, 806, the validity of a classification does not require

‘. . . that in all instances persons who are not in the class may not suffer equal or greater losses than some who are within the class, . . . The constitutional requirement is satisfied if the classification is a reasonable one or where, as here, by confining those who may recover to heirs, the Legislature has placed a reasonable limitation on wrongful death actions.’

The classification under attack is not a suspect classification calling for application of the ‘strict scrutiny’ test. The proper test is, therefore, that stated by our Supreme Court in Steed (12 Cal.3d at pp. 123–124, 115 Cal.Rptr. at p. 334, 524 P.2d at p. 806):

‘Rather the classification must be upheld against attack on equal protection grounds if the “distinctions drawn by [the] challenged statute beaor some rational relationship to a conceivably legitimate state purpose.” (Serrano v. Priest (1971) 5 Cal.3d 584, 597, 96 Cal.Rptr. 601, 609, 487 P.2d 1241, 1249 [41 A.L.R.3d 1187]; see also Kotch v. Pilot Comm'rs (1947) 330 U.S. 552, 556, 67 S.Ct. 910, 91 L.Ed. 1093 [1096–1097].) A reasonable state purpose is achieved, of course, by providing for the recovery of a financial loss wrongfully suffered in limited situations by one who stands in a close relationship to a deceased. The question is thus whether there is some rational relationship to the accomplishment of the legitimate state purpose in limiting the right of recovery to heirs of the deceased to the exclusion of nonadopted stepchildren. (See Swoap v. Superior Court (1974) 10 Cal.3d 490, 505–506, 111 Cal.Rptr. 136, 516 P.2d 840.)

‘. . ..

“State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' (McGowan v. Maryland (1961) 366 U.S. 420, 425–426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 [399].) Nor is it the court's function to weigh the social value of the statute to determine whether a classification may have been more finely drawn. (Ferguson v. Skrupa (1963) 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93, 95 A.L.R.2d 1347.)'

According to Steed, ‘a reasonable state purpose’ emodied in Code of Civil Procedure section 377 is to authorize ‘recovery of a financial loss wrongfully suffered’ by persons standing ‘in a close relationship to a deceased,’ thereby closing a gap in the common law. (See Bond v. United Railroads, 159 Cal. 270, 275–276, 113 P. 366.) ‘The creation of wrongful death actions ‘insofar as plaintiffs are concerned’ is directed toward compensating decedent's beneficiaries.' (Hurtado v. Superior Court, 11 Cal.3d 574, 583, 114 Cal.Rptr. 106, 112, 522 P.2d 666, 672.) Consequently, insofar as classifications between plaintiffs are concerned, differences relating to such purpose justify different treatment. The fact that another ‘one of the primary purposes of a state in creating a cause of action in the heirs for the wrongful death of the decedent is to deter the kind of conduct within its borders which wrongfully takes life’ (Hurtado, 11 Cal.3d at p. 583, 114 Cal.Rptr. at p. 112, 522 P.2d at p. 672) does not require that every classification in respect of plaintiffs also serve that purpose. The distinctions drawn in a statute need not bear a rational relationship to all legitimate state purposes enhanced by the legislation.

In passing upon the reasonableness of the classification, consideration must also be given to the kind of injury which the wrongful death statute is intended to redress. Since its original enactment, Code of Civil Procedure section 377 has always been construed as permitting recovery only for the pecuniary loss suffered by the plaintiff. As our Supreme Court said in Dickinson v. Southern Pacific Co., 172 Cal. 727, 730, 158 P. 183, 185:

‘The action is based on section 377 of the Code of Civil Procedure. At common law no remedy was given for injuries causing death. The right of the survivors to recover in such cases is purely statutory. It is thoroughly settled by many decisions in this state and elsewhere that a plaintiff, suing under a statute like section 377, ‘does not represent the right of action which the deceased would have had if the latter had survived the injury, but can recover only for the pecuniary loss suffered by the plaintiff’ (or the heirs represented by him) ‘on account of the death of the relative; that sorrow and mental anguish caused by the death are not elements of damage; and that nothing can be recovered as a solatium for wounded feelings.’ [Citations.]' (Emphasis added.)

The elements of the pecuniary loss have not been limited, however, to the loss of direct pecuniary contribution form the deceased. Speaking of the rights of parents, our Supreme Court stated in Fuentes v. Tucker, 31 Cal.2d 1, 9, 187 P.2d 752, 757:

‘The parents in each case were entitled to recover for the pecuniary loss they suffered by reason of the death of their son, and in determining that loss the jury could take into consideration the benefits that the parents were reasonably certain to have received from the earnings and services of their child during his minority, the support and financial benefit which they would have received from the child after is reached majority, and also the pecuniary loss which the parents suffered and will suffer in the future by being deprived of the comfort, society and protection of the child. As an offset to these factors, consideration must be given to what it would have cost the parents to support and educate the child, had he lived. It is manifestly difficult to measure some of these factors in dollars and cents, and a rough estimate of the pecuniary loss which the parents have suffered is the most that can be expected in these cases.’

The foundation for permitting assessment of pecuniary loss by reason of the deprivation of the ‘comfort, society and protection of a child’ is stated by our Supreme Court in Morgan v. Southern Pacific Co., 95 Cal. 510, 30 P. 603. In that case, an sward of $20,000 in respect of the alleged wrongful death of a two-year-old child was reversed because the jury was misinstructed that it was ‘not limited by the actual pecuniary injury sustained.’ (95 Cal. at p. 516, 30 P. at p. 603.) The court outlined the factors justifying consideration of loss of comfort and society as a basis for pecuniary loss, as follows (95 Cal. at p. 517, 30 P. at p. 603):

‘With respect to the decisions in this state, we do not think those cited by respondent (except one) are, when closely examined, inconsistent with the general authorities. Beeson v. G. M. G. M. Co., 57 Cal. 20, is a leading case on the subject, and is cited by all the cases which follow it. In that case the action was brought by the widow for the death of her husband, and the question was, whether or not the lower court erred in allowing evidence of the kindly relations between the plaintiff and the deceased during the lifetime of the latter. The court sustained the ruling of the court below, but clearly upon the ground that those relations could be considered only in estimating the pecuniary loss. The court say: ‘It is true that in one sense the value of social relations and of society cannot be measured by any pecuniary standard; . . . but, in another sense, it might be not only possible, but eminently fitting, that a loss from severing social relations, or from deprivation of society, might be measured, or at least considered, from a pecuniary standpoint. . . . If a husband and wife were living apart by mutual consent, neither rendering the other assistance or kindly offices, the jury might take into consideration the absence of social relations and the absence of society in estimating the loss sustained by either from the death of the other. So if the husband and wife had lived together in concord, each rendering kindly offices to the other, such facts might be taken into consideration, not, as the books say, for the purpose of affording solace in money, but for the purpose of estimating pecuniary losses. The loss of a kind husband may be a considerable pecuniary loss to a wife; she loses his advice and assistance in many matters of domestic economy.’' (Emphasis added.)

It is apparent from the above that that which may be measured by a pecuniary standard is the value of an existing social relationship shown to be beneficial to the plaintiff.

The question then becomes, is there a rational distinction (from the point of view of the statute's purpose to compensate persons pecuniarily injured by their death) between the parents of minors as a whole and the prospective parents of stillborn children? We conclude that there is. It is obvious that in other than exceptional cases, the factors which make it ‘manifestly difficult to measure’ the pecuniary loss suffered by parents become increasingly troublesome as the age of the wrongful death decedent diminishes. Though the age at which the offsetting expenses do not manifestly outweigh any prospective receipt of earnings and services may fluctuate widely, it is difficult to conceive of an infant who does not in this respect constitute a financial burden. The drawing of the line, however, by the Legislature at any given age would necessarily be arbitrary. The Legislature could, however, reasonably assume that in the case of an unborn child, the cost to the parent of supporting and educating the child will certainly exceed any expected direct monetary contribution in return.

Comparable considerations justify classifying differently the relationship between a prospective parent of an unborn child and the relationship between a parent and a minor child in respect of the pecuniary loss resulting from their severance. There is no doubt a very real relationship between an expectant parent and an unborn child. This relationship is, however, one characterized by an ‘absence of social relations.’ Consequently, any award of damages by virtue of severing that relationship would in fact be compensation for the ‘mental anguish caused by the death’ which is not an element of damage that the statute sought to make compensable.

We conclude, therefore, that Code of Civil Procedure section 377 as construed above does not violate equal protection.

THE FATHERS' CAUSES OF ACTION FOR EMOTIONAL TRAUMA

In the third cause of action of the third amended complaint in the Justus case, it is alleged that the plaintiff father was in the delivery room in close proximity to his wife and baby during his wife's labor and that he observed (a) defendants ministering to her and more particularly the manipulation of the baby with forceps and by hand, (b) the sudden and unexpected horror of the prolapsing of the umbilical cord, (c) the emergency procedures performed in connection with the attempted Caesarian delivery of the baby, and (d) the bleeding, pain and trauma that resulted in the baby's death. It is further alleged therein that the plaintiff father was present in the delivery room when it was learned that the baby could not be delivered normally and when he and his wife were informed that the baby had died. It was then alleged that because of this negligence of defendants, and each of them, the father sustained ‘great emotional disturbance, shock and injury to his nervous system,’ incurred medical and related expenses, lost wages and sustained an impairment of his earning capacity.

In the third cause of action of the third amended complaint in the Powell case, it is expressly alleged, among other things, that plaintiff father was in the delivery room in close proximity to his wife and baby during his wife's labor and observed (a) defendants ministering to her and the baby and more particularly the monitoring of the fetal heart tones, (b) the decrease in those tones and the resulting anxiety of the nurse, (c) the prolapsing of the umbilical cord, and (d) the pain and trauma to his wife. It is further alleged that he was present at the time the doctor advised that the baby would not live.⁶ The allegations of injury by reason of this negligence and of the resulting damages are essentially identical to those we have recounted from the complaint in the Justus case.

Defendants contend that the foregoing allegations are fatally deficient in that they do not state that plaintiff fathers suffered actual physical injury as well as emotional trauma by reason of defendants' negligence. (See Dillon v. Legg, 68 Cal.2d 728, 740, 69 Cal.Rptr. 72, 441 P.2d 912; Capelouto v. Kaiser Foundation Hospitals, 7 Cal.3d 889, 892, fn. 1, 103 Cal.Rptr. 856, 500 P.2d 880.) They liken the allegations before us to those found deficient in Hair v. County of Monterey, 45 Cal.App.3d 538, 542–543, 119 Cal.Rptr. 639. These allegations merely stated generally that plaintiffs suffered mental distress and injury to their nervous system, worry and anxiety.

In Dillon plaintiff's allegations were that the plaintiff sustained great emotional disturbance and shock and injury to her nervous system which caused her great physical and mental pain and suffering. (Dillon, 68 Cal.2d at 731, 69 Cal.Rptr. 72, 441 P.2d 912.) The Dillon court did not hold these allegations to be insufficient. A human body can suffer injury by shock, through the senses, to the nervous system and such shock is a physical injury. (See Leasman v. Beech Aircraft Corp., 48 Cal.App.3d 376, 381, 121 Cal.Rptr. 768.) We hold, contrary to the trial court, that under Dillon the plaintiff fathers sufficiently alleged physical injury from the emotional trauma that they experienced in witnessing the stillbirth of their sons.

A more fundamental question, though, is whether under Dillon the allegations before us otherwise state a cause of action for physical injury from emotional trauma. They obviously met the first and third tests enunciated in Dillon of plaintiff's proximity to the accident and close relationship between plaintiff and the victim. (Dillon, 68 Cal.2d at 740, 741, 69 Cal.Rptr. 72, 441 P.2d 912.) More precisely, the question before us in then whether they met the second test as well—‘[w]hether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.’ (Id. at 740–741, 69 Cal.Rptr. at 80, 441 P.2d at 920.) That is no doubt that plaintiff fathers observed the allegedly negligent deliveries of their stillborn sons and that such observation induced increasing fear and anxiety on their part. But the shock from such observation did not occur until they were informed that their sons had been born dead. (Cf. Jansen v. Children's Hospital Medical Center, 31 Cal.App.3d 22, 24, 106 Cal.Rptr. 883.) They did not know that these deaths had occurred until they were so informed. There was, therefore, no compensable, direct emotional impact upon them from their sensory and contemporaneous observances of the deliveries themselves. The shock to them first happened when and only when they were informed that their sons had been born dead. They may well have sensed trouble before then, but their anxiety ripened into shock only upon the receipt of this information. In short, under the allegations before us plaintiff fathers received their disabling shock not from what they saw and heard of the allegedly negligent deliveries but from the tragic information they received immediately following these events. The shock they suffered was not from their view of the deliveries themselves but from the information given them immediately thereafter that the deliveries had been unsuccessful in that their sons had died during the deliveries.

Plaintiff fathers argue that this rationale ignores their allegations that they also witnessed the pain and suffering that their wives experienced in the course of the unsuccessful deliveries and that this experience contributed to their shock. This pain and suffering of their wives arose from the complications of childbirth. Dillon states its liability entirely in terms of observance of an ‘accident.’ (See Wynne v. Orcutt Union Sch. Dist., 17 Cal.App.3d 1108, 1111, 95 Cal.Rptr. 458; Dillon, 68 Cal.2d at 740–741, 69 Cal.Rptr. 72, 441 P.2d 912.) An accident is ‘an undesigned, sudden and unexpected event.’ (See Webster New Internat. Dict. (2d ed. 1942) pp. 14–15; cf. The Random House Dict. of the English Language (1966) p. 9.) Complications in childbirth do not fall within that definition (see U. S. Dept. of Health, Education & Welfare, Public Health Services, Prenatal-Postnatal Health Needs and Medical Care of Children 3 (1973)); they may be comparatively unusual but they are not unexpected.

Dillon also presupposes that the plaintiff is an involuntary witness of the accident. Here plaintiff fathers were voluntary witnesses of the childbirths that occasioned their emotional distress.

We, therefore, hold that plaintiff fathers have failed to state a cause of action under Dillon and will affirm the trial court's dismissals of their causes of action for physical injury from emotional trauma.⁷

DISPOSITION

The judgments of dismissal in both cases are affirmed.

I concur and dissent. I concur in the foregoing opinion of the court that it is appropriate that we exercise our appellate jurisdiction is these cases. I also agree with the affirmation of the dismissal of the alleged causes of action of the fathers of the stillborn children for the physical injuries they allegedly suffered by reason of the emotional trauma they experienced in witnessing the allegedly negligent deliveries of their children.

I further agree that the Legislature did not intend to include an unborn child by implication within the term ‘minor person’ as used in Code of Civil Procedure section 377.

I respectfully disagree with and dissent from the holding of my colleagues that in this state the denial of a cause of action under section 377 for the wrongful death of a normal full-term stillborn child in the process of delivery is not a denial to its parents of the equal protection of the law within the meaning of both the Fourteenth Amendment, section 1 of the United States Constitution and article I, section 7, subdivision (a), of the California Constitution.

The command of constitutional equal protection is that the law treat alike those who are similarly situated. (Brown v. Merlo, 8 Cal.3d 855, 861, 106 Cal.Rptr. 388, 506 P.2d 212.) Classification for purposes of benefit is constitutionally permissible only if the classification bears some rational relationship to a legitimate state purpose. (Weber v. Aetna Cas. & Surety Co. (1972) 406 U.S. 164, 172, 92 S.Ct. 1400, 1405, 31 L.Ed.2d 768, 777; In re Antazo, 3 Cal.3d 100, 110, 89 Cal.Rptr. 255, 473 P.2d 999; D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 16, 112 Cal.Rptr. 786, 520 P.2d 10.)

The California wrongful death statute closed a gap in the common law by authorizing a cause of action for damages against a tortfeasor or his estate for the wrongful death of another. (See Bond v. United Railroads, 159 Cal. 270, 275–276, 113 P. 366.) Its purposes were to compensate the survivors of the victim and to deter conduct in this state which wrongfully takes life. (See Hurtado v. Superior Court, 11 Cal.3d 574, 583–584, 114 Cal.Rptr. 106, 522 P.2d 666.)

The requirement of live birth of the individual killed has no rational relationship to the purpose of providing a remedy for the most grievous tort of all—that which inflicts death upon its victim. (Del Tufo, Recovery for Pre-Natal Torts: Actions for Wrongful Death, 15 Rutgers L.Rev. 61, 77 (1960).) Ordinarily the greater includes the lesser, but this is not true in this state with regard to tortious injuries to unborn children. The lesser injuries that do not kill are compensable under Civil Code section 29 (Scott v. McPheeters, 22 Cal.App.2d 629, 631, 92 P.2d 678); those that do so are not. Similarly, the death of a twin that survives birth by a few moments is compensable; the death of his or her stillborn brother or sister is not. This difference in result is unjust.

It also lacks a rational basis. It cannot be rationally justified on the basis that in the one case the injured child is compensated, while in the other its survivors are. This is the essential difference in legal consequence that necessarily obtains between all personal injury actions on the one hand, and all those for wrongful death on the other. The injured victim continues to exist so he may be compensated personally for his injuries. The dead victim does not.

Similarly there is no appreciable increase in the speculative character of the damages awarded for wrongful death as between the stillborn and the newborn. In California the damages for the wrongful death of a minor child consists of the pecuniary loss that the parents suffer in being deprived of its services, earnings, society, comfort and protection. (Fuentes v. Tucker, 31 Cal.2d 1, 5, 187 P.2d 752.) It the the destruction of the intimate, mutually supportive, familial relationship of potentially long duration (the mutual life expectancy of parents and child) for which compensation is paid.¹ (See Foerster v. Direito, 75 Cal.App.2d 323, 332, 170 P.2d 986.) As the majority acknowledge, the relationship of parent and child does not begin with birth. It exists prior to that event. (See A. Colman & L. Colman, Pregnancy: The Psychological Experience, pp. 50, 53, 58, 122, 132 (1971).) Giving a reasonable monetary value to the pecuniary loss occasioned by the destruction of the potentially long-lasting relationship of parent and child is essentially no more difficult in the case of the stillborn than it is in the case of the newborn. In either situation, past experience in this state and elsewhere indicates a comparatively modest recovery at best. (See Annot. (1973) Damages—Death of Minor, 49 A.L.R.3d 934, 964–967.)²

Finally, to grant immunity in tort to one who negligently kills an unborn viable child is inconsistent with our Therapeutic Abortion Act. This statue protects fetuses generally from intentional death after the 20th week of pregnancy. (Health & Saf. Code, § 25953.) Constitutionally their existence may generally be so protected from the moment they become viable. (Roe v. Wade (1973) 410 U.S. 113, 164–165, 93 S.Ct. 705, 732–733, 35 L.Ed.2d 147, 183–184.) To say that one may negligently kill with impunity what one may not kill intentionally would seem to be both unreasonable and unrelated to any legitimate state purpose.

In the cases before us, the choice is a limited one—between those who die in delivery and tose who survive it. I believe that the parents of both types of children are in essentially the same position. (See, e. g., Comment, Wrongful Death and the Unborn: An Examination of Recovery after Roe v. Wade, 13 J. Family L. 99, 110 (1973–1974); Note, The Estate of an Unborn Child Has a Cause of Action for Wrongful Death, 70 Mich.L.Rev. 729, 742, 746, 754 (1972).) Therefore, if one set of parents is to be compensated in tort, then as a matter of constitutional equal protection of law the other set of parents should likewise be. In this connection, we note in passing that delivery is almost as easily identifiable an event as birth.

If a child conceived, but not yet born, is to be deemed an existing person under Civil Code section 29 so that it may recover for parental injuries in the event of its subsequent birth, then a child wrongfully killed in the process of being born should constitutionally be regarded as a minor person within the meaning of Code of Civil Procedure, section 377 so that its parents may recover in tort for its wrongul death. In cases of prenatal injury, there is no reasonable basis for distinguishing between the born and the unborn. Stated otherwise, what legitimate state purpose is served by differentiating in favor of the lesser injury between these two injuries so far as compensability in tort is concerned? Either both injuries should be compensated or neither should be.

Whether life before birth be considered existent or merely potential (Roe v. Wade, supra, 410 U.S. at 150, 159–160, 163, 93 S.Ct. at 725, 729–730, 731, 35 L.Ed.2d at 175, 181, 183),³ it serves no rational purpose to make live birth of the decedent the sine qua non for an action for the wrongful death of a child. As I have already pointed out, the pecuniary loss to the parents is essentially the same whether the deceased child be a fully developed stillborn child or a newborn child. Constitutional equal protection of law therefore demands that the law treat these similarly situated parents the same.

FOOTNOTES

FOOTNOTE.  

1.  We attach no significance to the fact that Civil Code section 25, to which section 26 refers, has since been amended to delete the unnecessary references to various special periods of minority previously ending at the age of 18 years. Secion 25 now provides that ‘Minors are all persons under 18 years of age.’

2.  But amendments to an existing statute are generally directed to the problem at hand and nothing beyond that is normally considered by the Legislature. (See dissenting opinion of Burke, J., in Steed v. Imperial Airlines, 12 Cal.3d 115, 127, 115 Cal.Rptr. 329, 524 P.2d 801.)The states, where the question has arisen, now stand at least 24 to 12, in favor of the existence of a cause of action for the wrongful death of an unborn child. Citation to the various cases, with the exception of the last two (Mone v. Greyhound Lines, Inc. (Mass. 1975) 331 N.E.2d 916, 917; Moen v. Hanson (1975) 85 Wash.2d 597, 537 P.2d 266), may be found in Mone at page 918. Only Georgia has thus far allowed recovery for the death of an unborn child who has quickened as compared with becoming viable. (Porter v. Lassiter (1955) 91 Ga.App. 712, 87 S.E.2d 100, 103.)

3.  At oral argument counsel advised us that the Legislature this year had again amended section 377 to nullify the specific holing of Steed and to expand the meaning of the word ‘heirs' as therein used to include not only heirs in the Probate Code sense but also certain specified dependent survivors, including stepchildren. (See West's Legislative Service No. 5 (1975) ch. 334, pp. 846–847.)The 1975 amendments to section 377 also delete the word ‘minor’ before the word ‘person.’ This eliminates for the future the support of Civil Code section 26 as an aid to interpretation, but otherwise does not affect the question of whether section 377 creates by implication a cause of action for the death of an unborn child. In the future this question will be simply whether an unborn child is a ‘person’ within the meaning of section 377. In any event, the 1975 amendments, not having been made retroactive, do not apply to these cases. (See Code Civ.Proc., § 3; Di Genova v. State Board of Education, 57 Cal.2d 167, 172–174, 18 Cal.Rptr. 369, 367 P.2d 865.)

4.  Plaintiffs suggest that the form of this amendment may have been dictated by the necessity of dealing separately in subdivision (b) of the section with the killing of fetuses.

5.  We are not here concerned with the classification established by Civil Code section 29 which permits recovery for prenatal injury only in the event the victim is subsequently born alive. That classification relates to a cause of action of the party injured, whereas the cause of action for wrongful death inheres in the specified survivors.

6.  This allegation conflicts somewhat with certain of the allegations incorporated in this cause of action by reference. We refer to the allegations contained in the wrongful death cause of action which indicate clearly that the Powell baby died during an induced delivery and that the death occurred prior to his complete severance from his mother and that, as a result, the baby was stillborn.

7.  We note no departure from the foregoing limitations in the apparently six jurisdictions which to date have followed Dillon. (See D'Amicol v. Alvarez Shipping Co., Inc. (1973) 31 Conn.Sup. 164, 326 A.2d 129; Complaint of Farrell Lines, Incorporated (S.D.Ga.1975) 389 F.Supp. 194; Leong v. Takasaki (Haw.1974) 520 P.2d 758; Toms v. McConnell (1973) 45 Mich.App. 647, 207 L.W.2d 140; D'Ambra v. United States (R.I.1975) 338 A.2d 524; Dave Snelling Lincoln-Mercury v. Simon Tex.Civ.App.1974) 508 S.W.2d 923.)

1.  My colleagues in insisting upon the indispensability of the existence of a beneficial social relationship appear to overlook the fact that most of the damages in the wrongful deaths of children are awarded to the survivors for their loss of a potentially beneficial social relationship of long duration.In this respect again the basis of such damages for the death of the newborn and for the death of stillborn do not essentially differ.

2.  This 22-year annotation, covering wrongful death recoveries under statutes apparently similar to California's, has as its maximum award $25,000 per child for infants under seven years of age. The only damage award included for the death of a stillborn viable fetus (a fully formed female child) was for $5,000 under Pennsylvania law. (See Gullborg v. Rizzo (3 Cir. 1964) 331 F.2d 557, 560–561.) This award compares with the $6,000 awarded for the death of a twelve-day old infant in Criss v. Angelus Hospital Assn., 13 Cal.App.2d 412, 414, 420, 56 P.2d 1274.)

3.  A modern view has been stated in O'Neill v. Morse (1971) 385 Mich. 130, 188 N.W.2d 785, 787: ‘The phenomenon of birth is not the beginning of life; it is merely a change in the form of life.’

THE COURT:* FN* Before Cobey, Acting P.J., Allport and Potter, JJ.