Opinion
No. 38140
Decided March 11, 1964.
Insurance — Automobile liability — Construction of policy — "Family compensation" clause — "Person" construed favorably to insured — Embraces a "foetus," when.
1. Under the "family compensation" clause of an automobile liability insurance contract, prepared and issued by the insurer, providing that a specified sum of money shall be payable on account of any person who suffers bodily injury or death by reason of any accident arising out of the use of the described automobile, the undefined term, "person," is to be given an interpretation as favorable to the insured and those covered by the contract as is reasonably possible.
2. Within the meaning of such clause, the term, "person," includes a foetus which has reached such a stage of development that it can live outside the uterus, does so upon delivery for an appreciable length of time and distinctly exhibits visible and audible signs of physical life.
APPEAL from the Court of Appeals for Columbiana County.
This cause originated in the Court of Common Pleas of Columbiana County with Richard N. Peterson, administrator of the estate of Audrey F. Peterson, as plaintiff, and the Nationwide Mutual Insurance Company as defendant. Plaintiff seeks to recover the sum of $2,000 plus incidental expenses under an insurance policy or contract issued by defendant to Richard N. Peterson individually. There is but one matter for decision, and that embraces the meaning and scope of the undefined word, "person," as used in the "family compensation" clause of the insured's contract. In the instant case, the claimed "person" was a female infant delivered prematurely after a gestation period of about 24 weeks as a result of a miscarriage alleged to have been induced by physical injuries sustained by the infant and her mother.
In its pertinent parts, the clause referred to reads:
"To pay, in accordance with the schedule below * * * to or for the benefit of:
"(1) any person who suffers bodily injury * * * or death by reason of any accident arising out of the * * * use of the described automobile.
"(2) the policyholder, and while residents of the same household, his spouse, and the relatives of either who by accident suffer bodily injury * * * or death:
"(a) by being struck by any other land motor vehicle * * *."
The cause came on for hearing before the trial court, a jury having been waived, upon the petition, the answer in the form of a general denial, the evidence and certain exhibits. As shown by the judgment entry, the court found that plaintiff's decedent "was not a `person' within the meaning of the policy contract and has no right of action on the policy contract — petition ordered dismissed at plaintiff's costs."
In its opinion in favor of defendant, the trial court said:
"The court feels that the common, usual, everday meaning of `person' contemplates that the person must first be born — it starts with the birth of the individual and continues from there. * * *
"Therefore, under this contract, the court finds that it only covers injuries sustained after birth and not before * * *."
There was an appeal on questions of law to the Court of Appeals, where the judgment of the court below was reversed "and said cause is remanded to the Court of Common Pleas for a new trial with further proceedings according to law."
As shown by its opinion, the Court of Appeals took the position that, "so far as right of recovery in tort for injury resulting in death is concerned, the injuries to plaintiff's decedent, who was subsequently born alive and lived 21 hours, were injuries done her in her person, within the doctrine of Williams v. Marion Rapid Transit, supra [ 152 Ohio St. 114, 87 N.E.2d 334, 10 A.L.R. (2d), 1051].
"It seems difficult to avoid the conclusion that a child who receives a certificate of live birth, who breathes, moves its limbs and cries, is a person within the concept of third party beneficiary contract, even more than in tort."
It is disclosed by the evidence that in the late afternoon of July 12, 1960, Patricia Peterson, wife of Richard N. Peterson, while operating the insured family automobile on a street of East Liverpool, Ohio, was run into from the rear by another motor vehicle, which resulted in claimed physical injuries — "whiplash of the neck and back injuries." Mrs. Peterson was then 21 to 22 weeks pregnant, and her physician testified, "The child was in normal condition for the period of pregnancy as far as I know."
Subsequently, Mrs. Peterson was hospitalized, and on July 31, 1960, she suffered a miscarriage and was delivered of a female infant. The infant was given the name of Audrey Fenton Peterson, and a certificate of live birth was issued. The infant lived about 21 hours, during which time she breathed, emitted vocal sounds and moved her limbs. An autopsy was performed by a physician, and the period of gestation was fixed at approximately 24 weeks or about five and one-half months. It is improbable that the infant could have survived and had a normal existence.
The cause is now here on its merits, following the allowance of a motion to require the Court of Appeals to certify the record.
Mr. George A. Aronson and Mr. Bernard Fineman, for appellee.
Messrs. Brookes, Lynch McDonald and Mr. Frank W. Springer, for appellant.
An established principle of insurance law, recognized in many decisions of this court, is that an insurance contract, in case of doubt as to the meaning and intent thereof, is to be interpreted against the insurer, the one who drew it and who is responsible for the language employed, and in favor of the insured. In the clause of the insurance contract presently under examination, the term, "person," is not defined and should be given an interpretation as favorable as is reasonably possible for the insured.
This court held, as follows, in the second paragraph of the syllabus of the landmark case of Williams, an Infant, v. Marion Rapid Transit, Inc., supra ( 152 Ohio St. 114, 87 N.E.2d 334, 10 A.L.R. [2d], 1058):
"2. Injuries wrongfully inflicted upon an unborn viable child capable of existing independently of the mother are injuries `done him in his * * * person' within the meaning of Section 16, Article I of the Constitution, and, subsequent to his birth, he may maintain an action to recover damages for the injury so inflicted."
In the later case of Jasinsky, Admr., v. Potts, 153 Ohio St. 529, 92 N.E.2d 809, the syllabus reads:
"Under the wrongful-death statute, Section 10509-166 et seq., General Code, the administrator of the estate of a child who, while viable, suffered a prenatal injury through the alleged negligent act of another and who died approximately three months after its birth as a result of such injury has a cause of action against such other for damages for the benefit of the parents of such infant."
Thus, it is established in this state that an unborn viable child is a "person."
As used with reference to a foetus, the word, "viable," means that the foetus has reached such a state of development that it can live outside the uterus. Bonbrest v. Kotz (D.C.D.C.), 65 F. Supp., 138, 140.
In Hall, Admr., v. Murphy, 236 S.C. 257, 263, 113 S.E.2d 790, 793, the court remarked:
"We have no difficulty in concluding that a foetus having reached that period of prenatal maturity where it is capable of independent life apart from its mother is a person and if such child is injured, it may after birth maintain an action for such injuries. A few courts have gone further and held that such an action may be maintained even if the infant had not reached the state of a viable foetus at the time of the injury. Bennett v. Hymers, 101 N.H. 483, 147 A.2d 108; Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93 S.E.2d 727."
And in Poliquin, Admx., v. MacDonald, 101 N.H. 104, 107, 135 A.2d 249, 251, the court said:
"We are also of the opinion that a fetus having reached that period of prenatal maturity where it is capable of independent life apart from its mother is a person * * *."
For those who may be interested, other cases bearing on the subject and upholding a right of action in varying circumstances are Wendt v. Lillo (D.C. Iowa), 182 F. Supp., 56; Tursi v. New England Windsor Co., 19 Conn. Sup. 242, 111 A.2d 14; Tucker v. Howard L. Carmichael Sons, Inc., 208 Ga. 201, 65 S.E.2d 909; Amann v. Faidy, 415 Ill. 422, 144 N.E.2d 412; Daley, Gdn., v. Meier, 33 Ill. App. 2d, 218, 178 N.E.2d 691; Sana v. Brown, 35 Ill. App. 2d, 425, 183 N.E.2d 187; Damasiewicz v. Gorsuch, 197 Md. 417, 79 A.2d 550; Smith v. Brennan, 31 N.J. 353, 157 A.2d 497, overruling Stemmer v. Kline, 128 N.J.L. 455, 26 A.2d 489; Woods, an Infant, v. Lancet, 303 N.Y. 349, 102 N.E.2d 691, 27 A.L.R. (2d), 1250; Seattle First National Bank, Gdn., v. Rankin, 59 Wn.2d 288, 367 P.2d 835. See, also, the annotations in 10 A.L.R. (2d), beginning at page 1059, 27 A.L.R. (2d), beginning at page 1256, and the comments and citation of cases by Paul A. Mancino in 14 Western Reserve Law Review, at page 151 et seq. Compare Mace, Admx., v. Jung (D.C. Alaska), 210 F. Supp., 706, and Keyes, Admx., v. Construction Service, Inc., 340 Mass. 633, 165 N.E.2d 912.
Here, the infant showed definite physical signs of life upon delivery from her mother and had an independent existence for an appreciable length of time after separation from her mother, and a certificate of live birth was issued. Considering all these factors, we think the situation comes within the holding of the Williams case that liability exists for prenatal injuries suffered by a viable child delivered alive.
In other words, an unborn viable child capable of life outside its mother's womb is a person as that term is used in an insurance contract providing death benefits for persons killed as a result of a motor vehicle accident.
Of course, if and when this case is retried, in order for plaintiff to recover, it must be shown by a preponderance of the evidence that the accident was directly responsible for the decedent's premature birth, and that the death resulted therefrom.
The judgment of the Court of Appeals is, therefore, affirmed.
Judgment affirmed.
TAFT, C.J., O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.
MATTHIAS, J., not participating.