Rambo v. Lawson, 72803

• Decision Date: 20 November 1990
• Docket Number: No. 72803,72803
• Citation: 799 S.W.2d 62
• Parties: Julius & Yulanda RAMBO, Plaintiffs-Appellants, v. Bill LAWSON and Carl's Car Service, Defendants-Respondents.
• Court: Missouri Supreme Court

Page 62

799 S.W.2d 62

Julius & Yulanda RAMBO, Plaintiffs-Appellants, v. Bill LAWSON and Carl's Car Service, Defendants-Respondents.

No. 72803.

Supreme Court of Missouri En Banc.

Nov. 20, 1990.

Rehearing Denied Dec. 18, 1990.

Stanley Wiles, Kansas City, for plaintiffs-appellants.

Michael E. McCausland, Sylvester Powell, Jr., Kansas City, for defendants-respondents.

BLACKMAR, Chief Justice.

By the allegations of the petition, which we accept as true for present purposes, the plaintiff Julius Rambo was driving and the plaintiff Yulanda Rambo was riding in an automobile which collided with a vehicle driven by the defendant Lawson. The accident occurred March 6, 1987. Yulanda was three months pregnant at the time of the accident and suffered a miscarriage. The Rambos sued Lawson and Carl's Car Service under § 537.080, RSMo 1986, charging negligence and seeking damages for the wrongful death of their unborn child. ¹ The trial court dismissed the action. The Court of Appeals, Western District, reversed by 2 to 1 vote, with well researched and well crafted majority and dissenting opinions. We granted transfer to consider the unique features of the case. We affirm the trial court's order of dismissal.

It is not asserted in the petition that the 3-month old fetus was capable of continued existence outside the womb at the time of the miscarriage. The question we must decide is whether a non-viable fetus is a person within the meaning of the first paragraph of § 537.080, RSMo 1986, reading as follows:

Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, ...

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That is the sole question involved in this case.

In O'Grady v. Brown, 654 S.W.2d 904 (Mo. banc 1983), we held that the parents of a stillborn child could recover damages for wrongful death allegedly caused by the negligence of the attending obstetrician. There we overruled the rather recent case of State ex rel. Hardin v. Sanders, 538 S.W.2d 336 (Mo. banc 1976), concluding that there was little reason for distinguishing an action for the death of a viable fetus from the situation involved in Steggall v. Morris, 363 Mo. 1224, 258 S.W.2d 577 (1953), in which a child was born alive but subsequently died as the result of prenatal injuries. In so holding, we followed the developing weight of authority. In O'Grady we expressed the caution that "We ... do not decide whether the same action would lie for the death of a nonviable fetus." O'Grady, 654 S.W.2d at 911. To allow the action, then, it would be necessary to go beyond O'Grady.

We are dealing with a statute. The wrongful death statute has long been a part of our law. It has received frequent legislative attention, and has existed in its present form since 1979. We must always bear in mind, however, that we are construing a statute, and must proceed within the framework of the legislative purpose as we perceive it. We must also bear in mind Justice Holmes's observation about drawing lines, expressed in Irwin v. Gavit, 268 U.S. 161, 168, 45 S.Ct. 475, 476, 69 L.Ed. 897 (1925), as follows:

Neither are we troubled by the question where to draw the line. That is the question in pretty much everything worth arguing in the law.

We do not believe that the legislative purpose would be served by an extension of the O'Grady holding to cover this situation. Nor do we have to express a conclusion on the continuing viability of O'Grady in order to decide this case.

We base our conclusion on several reasons: (1) there is always uncertainty and speculation about whether a pregnancy will culminate in a live birth, and the uncertainty is greater during the early part of the term; (2) the mother has her own action for negligently inflicted injury, in which the circumstances of her pregnancy and miscarriage may be brought out and considered as part of the intangible damages; ² (3) the father has an action for loss of the mother's services, in which the jury may consider such psychological problems as she may have sustained on account of the accident; (4) fertile parents may conceive another child, and any damage to reproductive capacity may be compensated in the parents' actions. 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.

Mention is made of § 188.015(6), RSMo 1986, reading as follows:

Unless the language or context clearly indicates a different meaning is intended, the following words or phrases for the purpose of sections 188.010 to 188.130 shall be given the meaning ascribed to them:

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(6) "Unborn child", the offspring of human beings from the moment of conception until birth and at every stage of its biological development, including the human conceptus, zygote, morula, blastocyst, embryo, and fetus;

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and also of § 1.205:

1. The general assembly of this state finds that:

(1) The life of each human being begins at conception;

(2) Unborn children have protectable interests in life, health, and well-being;

(3) The natural parents of unborn children have protectable interests in the life, health, and well-being of their unborn child.

2. 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.

3. 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.

4. 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.

These statutes were included in the text of S.C.S.H.B. 1596, L.1986, pp. 689-694, which was a bill designed to regulate abortions. This purpose is explicitly stated in § 188.010, RSMo 1986. ³ See Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989). We find no indication in the text that this bill was designed to amend the wrongful death statutes, which the legislature could easily have done had such been its intention.

Other provisions of the bill show that the legislators were very aware of matters of civil liability. Section 188.028.2(4) confers immunity from suit by parents of a minor on whom an abortion is performed by court authority. Section 188.120 creates a cause of action for an employee who suffers discrimination because of refusal to assist in an abortion. Section 188.130 eliminates the so-called "wrongful life" actions. Section 5 gives taxpayers standing to sue if public funds are used for abortions. It is reasonable to assume that the legislature would have dealt specifically with the application of S.C.S.H.B. 1596 for wrongful death actions, if it had intended that there be such applications, or if it had intended that O'Grady be extended.

Subsection 2 of Section 1.205, of course, did not become operative by its terms until after the accident took place and so could not affect the substantive law governing the plaintiffs' claim. Other portions of S.C.S.H.B. 1596 are not so limited. ⁴ See Mo. Const. art. III, § 29 (effective date of laws). The plaintiffs rely on all of the quoted portions in their argument, and so it is necessary to consider the applicability of the other portions of the statute.

The issue before us has had the attention of numerous courts, construing wrongful death statutes. The plaintiffs' position seems to be supported only by Presley v. Newport Hospital, 117 R.I. 177, 365 A.2d 748 (1976). Other cases which would allow an action for the death of a viable fetus do not allow an action for the death of a nonviable one. Humes v. Clinton, 246 Kan. 590, 792 P.2d 1032 (1990); Oswald v. LeGrand, 453 N.W.2d 634 (Iowa 1990); Wallace v. Wallace, 120 N.H. 675, 421 A.2d 134 (1980); Rice v. Rizk, 453 S.W.2d 732 (Ky.1970); State v. Sherman, 234 Md. 179, 198 A.2d 71 (1964); White v. Yup, 85 Nev. 527, 458 P.2d 617 (1969); Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964); Kwaterski v. State Farm Mut. Automobile Ins. Co., 34 Wis.2d 14, 148 N.W.2d 107 (1967); Coveleski v. Bubnis, 391 Pa.Super. 409, 571 A.2d 433 (1990) citing Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985). Annot., 84 A.L.R.3d 411, 422 §§ 3, 4. Cf. Kalafut v. Gruver, 239 Va. 278, 389 S.E.2d 681 (1990); see also 84 A.L.R. 453 § 5[a]. Thus our decision is in line with the weight of authority.

The judgment of dismissal is affirmed.

HIGGINS and BILLINGS, JJ., concur.

ROBERTSON, J., concurs in result in separate opinion filed.

COVINGTON, J., concurs in result and concurs in concurring in result opinion of ROBERTSON, J.

HOLSTEIN, J., dissents in separate opinion filed.

RENDLEN, J., dissents and concurs in dissenting opinion of HOLSTEIN, J.

ROBERTSON, Judge, concurring in result.

I concur in the result reached in the principal opinion. I cannot join the principal opinion. I believe that O'Grady v. Brown, 654 S.W.2d 904 (Mo. banc 1983), is incorrect. On the rationale employed by the principal opinion in this case O'Grady should be overruled. Yet the...