Connor v. Monkem Co., Inc.

Decision Date25 April 1995
Docket NumberNo. 77313,77313
Citation898 S.W.2d 89
PartiesJason CONNOR, Appellant, v. MONKEM COMPANY, INC., et al., Respondents.
CourtMissouri Supreme Court

Maurice B. Graham, Mike D. Murphy, Fredericktown, for appellant.

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 section 537.080, RSMo 1994 1, for the death of an unborn child 2 prior to viability. The trial court dismissed the suit for failing to state a claim. We reverse and remand.


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 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.


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 § 537.080. The legislature has never expressly defined this term within the wrongful death statute to include or exclude unborn children. The Court, accordingly, has struggled with the question of when an unborn child becomes a "person" capable of supporting a wrongful death claim for many years.

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 § 1.205, enacted in 1986 as a part of Senate Committee Substitute for House Bill 1596, 1986 Mo.Laws 689, (S.C.S.H.B. 1596), upon the wrongful death statute. 6 Writing for a plurality, Judge Blackmar indicated that the statute was a part of a bill explicitly designed to regulate abortion and was not intended to expand causes of action for wrongful death. Then he observed that subsection 2 of § 1.205 was not effective at the time of the plaintiff's injury and was therefore not applicable.

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 § 1.205 in their opinions.


All of this is preliminary to the core issue before us. That is, in enacting § 1.205.2 did the legislature express an intention that a nonviable unborn child be deemed a "person" for purposes of a § 537.080 wrongful death claim?

Clearly § 1.205.2 did not expressly amend § 537.080. To do so in its present form would be violative of art. III, § 28 of our constitution. 7 However, § 1.205.2 does set out a canon of interpretation enacted by the general assembly directing 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. Section 1.205(2) further sets out the intention of the general assembly that Missouri courts should read all Missouri statutes in pari materia with this section. Given the inconsistency of our past holdings, it is not unreasonable for the legislature to enact such a canon of construction. Article III, § 28 of our constitution does not prohibit the general assembly from adopting rules of construction. See Boyd-Richardson Co. v. Leachman, 615 S.W.2d 46, 53 (Mo. banc 1981). In this regard, § 1.205 is similar to other statutes enacted by the legislature directing a particular rule of construction, like § 287.800, which mandates that our workers' compensation statutes be...

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