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08/16/83 TERRI AND KEVIN O'GRADY v. ROBERT S. BROWN

August 16, 1983

TERRI AND KEVIN O'GRADY, APPELLANTS,
v.
ROBERT S. BROWN, M.D., ROBERT A. SLICKMAN, M.D., ST. JOSEPH HOSPITAL AND M. FOLKERS, R.N., RESPONDENTS.



From the Circuit Court of Jackson County; Civil Appeal; Judge Forest W. Hanna; Reversed and Remanded

The opinion of the court was delivered by: Pudlowski

In January of 1979, appellant Terri O'Grady was nine months pregnant with an expected delivery date of January 25, 1979. During her pregnancy she had been under the care of respondent doctors Robert Brown and Robert Slickman; her prenatal course was uneventful. On January 15, 1979, appellant began experiencing severe back pains. She spoke with one of her physicians by telephone and then proceeded to St. Joseph Hospital where she was admitted shortly after midnight. *fn1 During the course of the 24 hours following Terri O'Grady's admission, her uterus ruptured and the fetus was delivered stillborn.

Appellants contend that Terri O'Grady was not properly monitored, observed, or treated by respondents and that her injuries and the death of the fetus were the direct result of respondents' negligence. Appellants filed a petition in three counts, seeking recovery in Count I for personal injuries to Terri O'Grady, in Count II for loss of consortium suffered by Kevin O'Grady, and in Count III for damages suffered by both parents by reason of the wrongful death of their unborn child. Respondents filed motions to dismiss or in the alternative for summary judgment. The trial court sustained respondents' motions to dismiss Count III of the petition on the authority of State ex rel. Hardin v. Sanders, 538 S.W.2d 336 (Mo. banc 1976), which denied recovery for the death of a viable but unborn child. Counts I and II were voluntarily dismissed by appellants without prejudice, and the trial court certified its order dismissing Count III as a final and appealable order. The Court of Appeals for the Western District affirmed the decision of the trial court. We granted appellants' application for transfer and review the case as if on original appeal. Rule 83.09.

Appellants urge us to reconsider our ruling in State ex rel. Hardin v. Sanders, 538 S.W.2d 536 (hereinafter Hardin), in which we held that an action for the wrongful death of an unborn fetus could not be maintained under the provisions of § 537.080 RSMo 1969. In Hardin we held that a fetus was not a "person" within the meaning of the statute, observing that "if there had been an intention to create such an action it would have been specifically so stated." 538 S.W.2d at 339. In support of this Conclusion, we noted in Hardin that the United States Supreme Court in Roe v. Wade, 410 US 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), has stated that a fetus is not a "person" within the protection of the Fourteenth Amendment. We interpreted § 537.080 as requiring the deceased "person" to "be entitled to maintain an action at the time the injury was sustained and not at some later time," 538 S.W.2d at 340 (emphasis added), and then concluded it was "obvious" that a fetus could not meet this standard.

Appellants argue that the rule announced in Hardin should be reconsidered because it is unduly harsh and not in accord with the result reached in the majority of jurisdictions which have recently considered the issue. Respondents counter that the reasoning of Hardin is sound and should not be overruled. They further maintain that the issue presented is one of public policy which would be more appropriately decided in the legislature rather than the courts. The Missouri Hospital Association and the Missouri State Medical Association were granted leave to file briefs as amici curiae and their briefs supported the arguments advanced by respondents.

Because the action for wrongful death is statutory, we must first examine the pertinent language of the present Missouri statute, §§ 537.080 to 537.100, RSMo 1978 (1982 supp.). *fn2

Section 537.080 provides, in part, that:

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, which damages may be sued for [by certain classes of plaintiffs which are enumerated here.] Provided further that only one action may be brought under this section against any one defendant for the death of any one person.

Section 537.090 provides that: In every action brought under Section 537.080, the trier of the facts may give to the party or parties entitled thereto such damages as the trier of the facts may deem fair and just for the death and loss thus occasioned, having regard to the pecuniary losses suffered by reason of the death, funeral expenses, and the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of which those on whose behalf suit may be brought have been deprived by reason of such death and without limiting such damages to those which would be sustained prior to attaining the age of majority by the deceased or by the person suffering any such loss. In addition, the trier of the facts may award such damages as the deceased may have suffered between the time of injury and the time of death and for the recovery of which the deceased might have maintained an action had death not ensued. The mitigating or aggravating circumstances attending the death may be considered by the trier of the facts, but damages for grief and bereavement by reason of the death shall not be recoverable.

This language is a significant change from the prior Section 537.090, which provided only for such damages as would "fairly and justly compensate" the plaintiff. See Note, 45 Mo. L. Rev. 476 at 482. The earlier provision "was construed to allow recovery only for 'pecuniary' losses. In other words, no recovery was permitted for loss of companionship, society or comfort as a result of the death." (Footnotes omitted). Id., citing Acton v. Shields, 386 S.W.2d 363 (Mo. 1965). In Acton we denied recovery for the wrongful death of a fetus on the ground that the plaintiffs in that case (who were grandparents, aunts and uncles of the unborn child) were unable to show "a reasonable probability of pecuniary benefit" from the continued life of the child. 386 S.W.2d at 366. The new statute explicitly declares the legislature's intention that damages in wrongful death actions should include compensation for the loss of "consortium, companionship, comfort, instruction, guidance, counsel, training, and support." § 537.090 RSMo 1978 (1982 Supp.).

Respondents assert that this statute must be "strictly construed" because it is "in derogation of the common law." We do not agree. The wrongful death statute is not, strictly speaking, in "derogation" of the common law. Derogation is defined as "he partial abrogation or repeal of a law, contract, treaty, legal right, etc." or as a "lessening, weakening, curtailment, . . . impairment," detraction or taking away of a power or authority. 3 Oxford English Dictionary 232 (1933). Wrongful death acts do not take away any common law right; *fn3 they were designed to mend the fabric of the common law, not to weaken it. Remedial acts are not strictly construed although they do change a rule of the common law. Steggal v. Morris, 258 S.W.2d 577, 582 (Mo. banc 1953). We must therefore apply the statutory language "with a view to promoting the apparent object of the legislative enactment." United Airlines v. State Tax Commission of Missouri, 377 S.W.2d 444, 451 (Mo. banc 1964).

This principle was recently enunciated in a unanimous opinion authored by Justice Harlan in Moragne v. States Marine Lines, Inc., 398 U.S. 333 (1970). In this case a widow of a deceased longshoreman brought an action for his wrongful death contending that although the common law did not provide for wrongful death, the general maritime law did permit such a remedy. She sought reversal of a previous Supreme Court decision which held that absence of a specific statute there is no action for wrongful death and a declaration that the general maritime laws incorporate a wrongful death action.

Justice Harlan in analyzing the trend of federal and state legislative enactments looked at it for guidance. In doing so the Court stated: "These numerous and broadly applicable statutes, taken as a whole, make it clear that there is no present public policy against allowing recovery for wrongful death . . . This legislative establishment of policy carries significance beyond the particular scope of each of the statutes involved. The policy thus established has become itself a part of the law, to be given its appropriate weight not only in matters of statutory construction but also in those of decisional law," Id. p. 390-391. The court then concluded that, "this appreciation of the broader role played by legislation in the development of the law reflects the practices of common law courts from the most ancient times. As Professor Landis has said, 'much of what is ordinarily regarded as 'common law' finds its source in legislative enactment." Landis, Statutes and the Sources of Law, Harvard Legal Essays, 213, 214 (1934). It has always been the duty of the common law court to perceive the import of major legislative innovations and to interweave the new legislative policies with the inherited body of common law principles." Id. p. 392.

Our first task, therefore, is to consider whether it would be consistent with the purpose of the statute to permit a cause of action for ...


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