Jason CONNOR, Appellant, v. MONKEM COMPANY, INC., et al., Respondents.
No. 77313.
Supreme Court of Missouri, En Banc.
April 25, 1995.
As Modified on Denial of Rehearing May 30, 1995.
PRICE, Judge.
William A. Brasher, Timothy D. Richardson, Patricia D. Brasher, St. Louis, Jeffrey S. Maguire, Cape Girardeau, for respondents.
PRICE, Judge.
Jason Connor seeks to bring a wrongful death claim as a father pursuant to
Connor was the unmarried father of an unborn child with whom Vicki Richards was approximately four months pregnant on August 12, 1990.3 On that date, Vicki Richards was a passenger in an automobile driven by Kathy Lindsey. At or near the junction of U.S. Highway 67 and Highway E in Madison County, Missouri, the Lindsey vehicle was struck by a tractor trailer driven by Warren Richter, an employee of Monkem Company, Inc. Richards and the unborn child were killed.
Connor brought suit in Madison County against Lindsey, Richter, and Monkem Company, Inc. for the wrongful death of the unborn child. The suit was dismissed for failure to state a claim. Connor appealed to the Court of Appeals, Eastern District. The eastern district determined that a claim existed and the dismissal should be reversed. Because this result was not consistent with May v. Greater Kansas City Dental Society, 863 S.W.2d 941 (Mo.App.W.D.1993), the case was transferred here. We have jurisdiction pursuant to the Missouri Constitution, art. V, § 10.
II.
As stated in Sullivan v. Carlisle, 851 S.W.2d 510, 512 (Mo. banc 1993):
Wrongful death is a statutory cause of action. Powell v. American Motors Corp., 834 S.W.2d 184, 186 (Mo. banc 1992); Hagen v. Celotex Corp., 816 S.W.2d 667, 674 (Mo. banc 1991). Well-settled principles of statutory interpretation require us to ascertain the legislative intent from the language of the act, considering the words used in their plain and ordinary meaning, and to give effect to that intent whenever possible. State v. Knapp, 843 S.W.2d 345, 347 (Mo. banc 1992). If the statute is ambiguous, we attempt to construe it in a manner consistent with the legislative intent, giving meaning to the words used within the broad context of the legislature‘s purpose in enacting the law. State ex rel. Missouri Hwy. & Transp. Com‘n v. Alexian Brothers of St. Louis, Inc., 848 S.W.2d 472, 474 (Mo. banc 1993).
The precise question before us is whether a nonviable unborn child is a “person” capable of supporting a claim for wrongful death pursuant to
Buel v. United Railway Company, 248 Mo. 126, 154 S.W. 71 (1913), appears to be the first case in which the Missouri Supreme Court considered whether a prenatal injury would support a wrongful death claim. Although the child was liveborn, the Court denied recovery on the basis that the unborn child was not a separate legal entity from its mother when injured. The Court also stated that “[w]e have not been able to find any precedent at common law establishing the right of a child injured while en ventre sa mere, but subsequently born alive, to bring an action thereafter for injuries so received.” Id. 154 S.W. at 72.
Forty years later in Steggall v. Morris, 363 Mo. 1224, 258 S.W.2d 577 (1953), the Court overruled Buel, stating: “We rule that the theory of no precedent is not a valid reason for denying a remedy to an injured person.” Id. 258 S.W.2d at 580. Steggall held that a liveborn child who thereafter died from prenatal injuries was a “person” capable of supporting a wrongful death cause of action. It is interesting to note that the Court in Steggall stated:
After reading the above authorities on the subject of infant en ventre sa mere, we have come to the conclusion that it is not in accordance with the truth to say the law indulges in a fiction when it attributes a legal personality to an unborn child. The above statement is not new. A number of courts and text writers have reached the
same conclusion. We call particular attention to the opinion by Justice McGuire in the case of Bonbrest v. Kotz, supra, 65 F.Supp. loc. cit. 140(3). The justice there cited many medical authorities to support the statement, “From the viewpoint of the civil law and the law of property, a child en ventre sa mere is not only regarded as human being, but as such from the moment of conception—which it is in fact.” Id. at 579.
Nearly twenty years ago, in State ex rel. Hardin v. Sanders, 538 S.W.2d 336 (Mo. banc 1976), it was held that a stillborn child was not a “person” capable of supporting a wrongful death claim.4 In Hardin, the Court stated:
We think the legislature in enacting the original act and subsequent revisions did not intend to create an action for the death of a fetus never born alive. In view of the common law rule that an unborn fetus was not a “person” we think if there had been an intention to create such an action it would have been specifically so stated. Id. at 338-39.
In Hardin, the plaintiff had argued that it was arbitrary and unjust to draw a distinction between a stillborn child and a liveborn child who died shortly thereafter, where both deaths resulted from prenatal injuries. Instead, the plaintiff argued that viability should be the differentiating point in time. The Court rejected that argument because it was no less arbitrary or unjust to draw the line at viability and, because the point of viability would be difficult to determine, it would be unworkable.
O‘Grady v. Brown, 654 S.W.2d 904 (Mo. banc 1983), however, reversed Hardin and allowed a cause of action under the statute for the death of a viable unborn child. Noting that the wrongful death statute had just been amended to expand recovery from pecuniary damages to also include “consortium, companionship, comfort, instruction, guidance, counsel, training and support“, Id. at 907, the Court reasoned that permitting a cause of action for the death of a viable unborn child would “be consistent with the broad purpose for which the statute was passed.” Id. at 909.5
In Rambo v. Lawson, 799 S.W.2d 62 (Mo. banc 1990), the Court declined to extend a cause of action for wrongful death to a nonviable unborn child, stating:
We do not believe that it is necessary to extend the definition of “person” beyond the O‘Grady standard in order to serve the purposes of the wrongful death statute, or to compensate the plaintiffs adequately for their loss. 799 S.W.2d at 63.
For the first time, the Court was called upon to address the effect of
Judge Blackmar‘s plurality decision was attacked from both sides. Judge Robertson, with Judge Covington concurring, agreed with the result of Judge Blackmar‘s opinion, but advocated overruling O‘Grady. The primary thrust of Judge Robertson‘s opinion was that by otherwise amending the wrongful death statute subsequent to Hardin, the legislature must be presumed to have agreed with Hardin. He and Judge Covington would have allowed no wrongful death cause of action for a stillborn child, viable or not.
Judge Holstein, contrastingly, dissented, with Judge Rendlen concurring. He argued that under the plain language of the statute, the current state of the law, and clear scientific evidence, a fetus should be considered as a person under the wrongful death statute regardless of its stage of development. He stated:
Rules of statutory construction should never be applied so as to defeat the purpose of the statute. The viability standard is not in the plain language of the statute; it is not consistent with the common law; it is incongruous with reason. 799 S.W.2d at 71.
Neither Judge Robertson nor Judge Holstein discussed
III.
All of this is preliminary to the core issue before us. That is, in enacting
Clearly
While
IV.
We recognize that the majority of other jurisdictions in America limit recovery to viable unborn children. Most of the decisions from these jurisdictions construe general statutes with little or no guidance as to whether unborn children, viable or not, should be considered as persons for a wrongful death claim. Prior to the effective date of
Little hesitancy has been shown, however, to give effect to more specific and inclusive direction by legislative bodies, either by specific amendment to a wrongful death statute; see Seef v. Sutkus, 145 Ill.2d 336, 164 Ill.Dec. 594, 583 N.E.2d 510 (1991); Farley v. Mount Marty Hosp. Ass‘n, 387 N.W.2d 42 (S.D. 1986), or by a separate statute to be read in pari materia with a wrongful death statute, see Porter v. Lassiter, 91 Ga.App. 712, 87 S.E.2d 100 (1955); Danos v. St. Pierre, 402 So.2d 633 (La.1981).
As the question before us is one of statutory construction, we must be more sensitive to legislative direction and less sensitive to our own evaluation of policy considerations. Thus, the legislature‘s relatively clear expression in
V.
Plaintiff‘s victory to this point, however, may be largely pyrrhic. While we hold that a wrongful death claim may be stated for a nonviable unborn child, plaintiff‘s ability to prove damages is certainly subject to question. Missouri has recognized that “[s]peculative results are not a proper element of damages.” Wise v. Sands, 739 S.W.2d 731, 734 (Mo.App.1987). In Girdley v. Coats, 825 S.W.2d 295, 298 (Mo. banc 1992), we discussed the difficulty of establishing damages in a wrongful conception case. There, it was noted:
Who can divine, soon after birth, whether the child will be a financial boon or burden to the parents, what level of education will be required or what unique expenses could arise? These determinations are beyond the scope of probative proof.
Although these difficulties also exist for very young children and for viable but unborn children, they are all the more glaring in a case involving a child that has not even reached the point of viability within the womb. See DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489 (1987). It would be premature to attempt to rule these issues now without a fully developed record. Suffice it to say that upon remand the parties should keep in mind the differences between stating a claim and proving it.
VI.
The trial court‘s order of dismissal is reversed and the case is remanded for further proceedings in accordance with this opinion.
HOLSTEIN and BENTON, JJ., concur.
ROBERTSON, J., concurs and concurs in result in separate opinion filed.
COVINGTON, C.J., dissents in separate opinion filed.
THOMAS, J., and TURNAGE, Special Judge, concur in opinion of COVINGTON, C.J.
LIMBAUGH, J., not sitting.
ROBERTSON, Judge, concurring and concurring in result.
I concur in all but Part V of the majority opinion. I do not join Part V because, in my opinion, it is obiter dictum that does not reflect the Court‘s experience.
The principal opinion asserts that the “difficulties that attend proof of damages in wrongful death actions for viable unborn children are all the more glaring in a case involving a child that has not even reached the point of viability in the womb.” (Majority op. at 93.) I disagree. I can see no greater difficulty in proving damages for an
COVINGTON, Chief Justice, dissenting.
I must respectfully dissent.
The issue before this Court, as recognized by the majority opinion, was addressed in Rambo v. Lawson, 799 S.W.2d 62 (Mo. banc 1990): whether a non-viable fetus is a person within the meaning of
The only factor that serves to distinguish the present case from Rambo is that
The conclusion reached by the majority opinion does not follow from the premise that precedes it. The majority opinion states that “the time of conception and not viability is the determinative point at which the legally protectable rights, privileges, and immunities of an unborn child should be deemed to arise.” From this premise, the majority opinion concludes that the wrongful death statute must be construed “to allow a natural parent to state a claim for the wrongful death of his or her unborn child, even prior to viability.” Thus, under the logic of the majority opinion, a statute concerning the rights of “unborn children” was intended to create a cause of action in favor of the parents. The conclusion does not follow.
The majority opinion purports to find support for its holding in
Contrary to an assertion in State v. Knapp, 843 S.W.2d 345, 347 (Mo. banc 1992), in my view unnecessary to the resolution of the issues in that case,
Notes
- The general assembly of this state finds that:
- The life of each human being begins at conception;
- Unborn children have protectable interests in life, health, and well-being;
- The natural parents of unborn children have protectable interests in the life, health, and well-being of their unborn child.
- Effective January 1, 1988, the laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state, subject only to the Constitution of the United States, and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in the statutes and constitution of this state.
- As used in this section, the term “unborn children” or “unborn child” shall include all unborn child or children or the offspring of human beings from the moment of conception until birth at every stage of biological development.
- Nothing in this section shall be interpreted as creating a cause of action against a woman for indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular program of prenatal care.