# Weitl v. Moes

> Supreme Court of Iowa · October 21, 1981 · 311 N.W.2d 259

URL: https://www.frixlaw.com/law-library/cases/9734669

## Case

- **Full name:** Linda WEITL, Gregory B. Weitl, and Roberta Bennett, Robert Bennett, Jr., & Gregory E. Weitl, Jr., by Their Mother and Next Friend, Linda Weitl, and Gregory Weitl as Administrator of the Estate of Kelly Weitl, Appellants, v. John R. MOES, John Ramsey, Albert M. Dolan and St. Francis Hospital of Franciscan Sisters, Appellees
- **Court:** Supreme Court of Iowa
- **Decided:** October 21, 1981
- **Citations:** 311 N.W.2d 259; 1981 Iowa Sup. LEXIS 1052
- **Precedential status:** Published
- **Opinion:** Concurring in part by Larson
- **Judges:** Allbee, Harris, III, LARSON's, Larson, LeGRAND, McCORMICK, McGIVERIN, McGIVERIN's, Reynoldson, Schultz
- **Cited by:** 77 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled by Audubon-Exira Ready Mix, Inc. v. Illinois Central Gulf Railroad, 1983 Iowa Sup. LEXIS 1545 (1983).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9734669

## How later opinions describe it (automated extraction)

- holding “[t]he ordinary meaning of the word ‘person’ is a human being who has ‘attained a recognized individual identity’ by being born alive” (citation omitted)
- recognizing minor child's independent cause of action for loss of consortium of injured parent
- stating, “our role is to construe the statute as we believe the legislature intended it”

## Opinion text

LARSON, Justice
(concurring in part and dissenting in part).
I concur in Division I and in the result of Division II. I dissent from Division III.
The issue under Division III of the majority opinion is not whether we overrule McKillip because, as the majority points out, that case, involving a nonviable fetus, is distinguishable. Rather, the issue is whether we should expand the rule of McKillip to deny recovery for a viable fetus as well. Contrary to the assertions of the majority, denial of recovery is not mandated by our survival statute; it is in fact inimical to its very purpose. And a denial of this claim would further commit Iowa to what is undeniably the minority rule at a time when the recognition of claims on behalf of unborn children is so rapid and pronounced that courts and writers alike have noted the phenomenon. 1 This trend is illustrated by the fact that, of the seven jurisdictions addressing the issue for the first time between 1973 and 1980, six ruled in favor of recovery while only one denied it. See Kader, The Law of Tortious PreNatal Death Since Roe v. Wade, 45 Mo.L.Rev. 639, 663 (1980).
I. Interpretation of section 611.20. The majority does not contend the language of section 611.20 either expressly or impliedly prohibits recovery for a viable fetus; it merely contends that the legislature in 1851 did not intend to permit it. The fact is the legislature could not be presumed to have had an “intent,” one way or the other on the issue, because of the paucity of medical knowledge at the time. See Justus v. Atchison, 19 Cal.3d 564, 579 , 565 P.2d 122, 132 , 139 Cal.Rptr. 97, 107 (1977) (Tobriner, J., concurring); Britt v. Sears, 150 Ind.App. 487, 494 , 277 N.E.2d 20, 24-25 (1971) (“since actions for pre-natal injuries and death were then unknown in Indiana jurisprudence, our lawmakers very probably gave no thought to whether they were creating an action for pre-natal injury or pre-natal death”); Mone v. Greyhound Lines, 368 Mass. 354 , 360 n.8, 331 N.E.2d 916 , 919 n.8 (1975); Kader, supra at 658; Note, 46 U.Cinn.L.Rev. 266, 272 (1977); Annot., Action for Death of Unborn Child, 84 A.L.R.3d 411 , 418-19 (1978).
The interpretation of statutes in these circumstances is discussed in K. Llewellen, The Common Law Tradition 374 (1960):
[T]he policy of a statute is of two different kinds. ... On the one hand there are ideas consciously before the draftsmen, the committee, the legislature: a known evil to be cured, a known goal to be attained.... Here talk of “intent” is reasonably realistic. . . .
But on the other hand- — and increasingly as any statute gains in age — its language is called upon to deal with circumstances utterly uncontemplated at the time of its passage. Here the quest is not properly for the sense originally intended by the statute, for the sense originally to be put into it, but rather for the sense which can be quarried out of it in light of the new situation. Broad purposes can indeed reach far beyond details known or knowable at the time of drafting. . . . [T]he sound quest does not run primarily *276 in terms of historical intent. It runs in terms of what the words can be made to bear, in making sense in the new light of what was originally unforseen.
See generally Eich v. Town of Gulf Shores, 293 Ala. 95, 99 , 300 So.2d 354, 357 (1974) (“It is often necessary to breathe life into existing laws lest they become stale and shelfworn.”); 2A Sutherland, Statutes and Statutory Construction § 49.01, at 228 (1975) (“Legislative standards are often couched in general terms which are capable of embracing and intended to embrace future applications which are not and cannot be foreseen at the time of enactment. Therefore a statute may be interpreted to include circumstances or situations which were unknown or did not exist at the time when it was enacted.”)
It must be conceded that the word “person” in section 611.20 is subject to more than one interpretation. Kader, supra at 657; Note, 46 U.Cinn.L.Rev., supra at 272. Compare Kilmer v. Hicks, 22 Ariz.App. 552, 554 , 529 P.2d 706, 708 (1975) (“person” clear and unambiguous; held to exclude viable fetus) with Verkennes v. Corniea, 229 Minn. 365, 370 , 38 N.W.2d 838, 841 (1949) (“person” clear and unambiguous; held to include viable fetus). In such instances, where the meaning of a word is unclear, the legislature has provided this court with, inter alia, two principles of construction: Section 4.6(1), The Code 1981, provides that “[i]f a statute is ambiguous, the court, in determining the intention of the legislature, may consider .. . [t]he object sought to be obtained,” and section 4.2 similarly provides that a statute must be “liberally construed with a view to promote its objects. . . . ” The principles of sections 4.2 and 4.6(1) have been applied by this court to our survival statute. See, e. g., Blakeley v. Estate of Shortal, 236 Iowa 787, 790 , 20 N.W.2d 28, 30 (1945); Wood v. Wood, 136 Iowa 128, 132 , 113 N.W. 492, 494 (1907) (section 611.20 is remedial legislation and “should be liberally construed” to effect its purpose); accord, State ex rel. Odham v. Sherman, 234 Md. 179 , 198 A.2d 71, 73 (1964); Mone v. Greyhound Lines, 368 Mass. 354 , 331 N.E.2d 916 , 917 n.4 (1975); White v. Yup, 85 Nev. 527 , 458 P.2d 617, 622-23 (1969); Vaillancourt v. Medical Center Hospital, 139 Vt. 138 , 425 A.2d 92, 94 (1980)’; Baldwin v. Butcher, 155 W.Va. 431 , 184 S.E.2d 428, 431 (1971); Note, 21 Villanova L.Rev. 994, 1002 (1976). As Justice Cardozo aptly stated:
Death statutes have their roots in dissatisfaction with the archaisms of the [common-law rule of no liability]. ... It would be a misfortune if a narrow or grudging process of construction were to exemplify and perpetuate the very evils to be remedied. There are times when uncertain words are to be wrought into consistency and unity with a legislative policy which is itself a source of law, a new generative impulse transmitted to the legal system.
Van Beeck v. Sabine Towing Co., 300 U.S. 342, 350-51 , 57 S.Ct. 452, 456 , 81 L.Ed. 685, 690 (1937).
What is the “broad purpose” of the survival statute which Professor Llewellen says will fill the void of ascertained legislative “intent”? The purpose of section 611.-20 was clearly to provide a remedy for a wrong inflicted, Cardamon v. Iowa Lutheran Hospital, 256 Iowa 506, 519-20 , 128 N.W.2d 226, 234-35 (1964), since at common law there was no liability for wrongful death, W. Prosser, Handbook of the Law of Torts § 127, 901-902 (1971). To construe the word “person” narrowly, then, perpetuates the void in the common law: it allows a wrong to go unremedied, for in the normal course of events a healthy infant would have been born.
Another consideration also supports a broad reading of “person” in this context: Although this court has not been presented with the issue, virtually every jurisdiction facing the issue has permitted recovery for prenatal injuries when the fetus is born alive. See Prosser, supra § 55, at 336-37; Annot., Liability for Prenatal Injuries, 40 A.L.R.3d 1222 ,1228 (1971). The majority in the present case even suggests we might allow recovery for prenatal injuries, when such a case is presented, while still denying it for a stillborn child. Assuming, arguen-do, that this court would arrive at such a *277 conclusion, the resulting anomaly is obvious: “the greater the harm inflicted the better the opportunity for exoneration of the defendant.” Eich, 293 Ala. at 97 , 300 So.2d at 355 ; accord, White, 85 Nev. at 538 , 458 P.2d at 622 ; Stidam v. Ashmore, 109 Ohio App. 431, 434 , 167 N.E.2d 106, 108 (1959); Kader, supra at 646 — 47; Note, 15 J. Family Law 276, 297 (1977). And consider the case of a simultaneous injury to unborn twins where one dies a minute before delivery, the other a minute after. Recovery would be allowed for one twin but not for the other under this amazing rationale.
The distinction relied upon by the majority between the Lord Campbell-type death statutes and Iowa’s “survival” statute provides no impediment to recovery here. Under a survival statute the claim of a personal representative springs not from the death of the person but from the original injury sustained by him, the claim for which is merely transferred to the executor or administrator. If we recognize, as virtually every jurisdiction has, that an injury to a fetus is compensable as to a live-born child, it is perfectly compatible with our survival statute to merely substitute the personal representative to pursue the claim when the decedent is prevented by death from doing so. This was in fact the reasoning in Gorke v. Le Clerc, 23 Conn.Sup. 256, 259 , 181 A.2d 448, 450-51 (1962), which allowed recovery for a viable fetus under a survival-type statute.
II. The majority rule. Iowa’s reference in section 611.20 to a “person” is not unique among the various states’ death statutes; in fact, most statutes allow recovery only if the decedent was a “person.” Kader, supra at 642-43. The overwhelming majority of courts facing the issue have held a fetus, at least by the stage of viability, is “a person,” “one,” “a child,” or an equivalent under their respective death statutes. Moreover, the number of jurisdictions allowing recovery for prenatal death is steadily increasing. In 1980, when Professor Kader’s article was published, he stated that twenty-four states and the District of Columbia allowed recovery, thirteen denied it, 2 and thirteen states had not yet considered the matter. Id. at 644-45. Today the number of states allowing recovery for a viable fetus has risen to twenty-eight, while only ten deny it. Both Louisiana and New Mexico, which have opted for recovery on behalf of stillborn children since Kader’s research was completed, have statutes applicable to the death of “persons”; the third state permitting recovery in the interim, Vermont, has a statute applicable to “one” who is killed.
The majority rule, allowing recovery on behalf of a viable fetus, is followed in the following jurisdictions: Eich v. Town of Gulf Shores, 293 Ala. 95 , 300 So.2d 354 (1974) (“minor child” includes fetus); Gorke v. Le Clerc, 23 Conn.Sup. 256 , 181 A.2d 448 (1962) (“person” includes viable fetus); Worgan v. Greggo & Ferrara, Inc., 11 Terry 258 , 50 Del. 258 , 128 A.2d 557 (Super.Ct. 1956); Simmons v. Howard University, 323 F.Supp. 529 (D.D.C.1971) (“person” includes viable fetus); Porter v. Lassiter, 91 Ga.App. 712 , 87 S.E.2d 100 (1955) (“person” includes fetus); Chrisafogeorgis v. Brandenberg, 55 Ill.2d 368 , 304 N.E.2d 88 (1973) (“person” includes viable fetus); Britt v. Sears, 150 Ind.App. 487 , 277 N.E.2d 20 (1971) (“child” includes a fetus “capable of independent life”); Hale v. Manion, 189 Kan. 143 , 368 P.2d 1 (1962); Mitchell v. Couch, 285 S.W.2d 901 (Ky.1955) (“person” includes viable fetus: “[t]he most cogent reason . . . for holding a viable unborn child is an entity within the meaning of the general word ‘person’ is because, biologically speaking, such a child is, in fact, a presently existing person, a living human being”); Danos v. Pierre, 383 So.2d 1019 (La.App.), cert. granted, 384 So.2d 985 (La.1980) (“person” includes seven-month old fetus); State ex rel. Odham v. Sherman, 234 Md. 179 , 198 A.2d 71 (1964) (“person” includes viable fetus); Mone v. Greyhound Lines, 368 Mass. 354 , 331 N.E.2d 916 (1975) (“person” in- *278 eludes viable fetus); O’Neill v. Morse, 385 Mich. 130 , 188 N.W.2d 785 (1971) (“person” includes viable fetus); Verkennes v. Cor niea, 229 Minn. 365 , 38 N.W.2d 838 (1949) (“person” includes viable fetus); Rainey v. Horn, 221 Miss. 269 , 72 So.2d 434 (1954) (“party” includes viable fetus); White v. Yup, 85 Nev. 527 , 458 P.2d 617 (1969) (“person” includes viable fetus); Poliquin v. MacDonald, 101 N.H. 104 , 135 A.2d 249 (1957); Salazar v. St. Vincent Hospital, 95 N.M. 150 , 619 P.2d 826 (Ct.App.), cert. denied, 96 N.M. 409 , 631 P.2d 315 (1980) (“person” includes viable fetus); Stidam v. Ashmore, 109 Ohio App. 431 , 167 N.E.2d 106 (1959) (“person” includes viable fetus); Evans v. Olson, 550 P.2d 924 (Okl.1976) (“one” includes viable fetus); Libbee v. Permanente Clinic, 268 Or. 258 , 518 P.2d 636 (1974) (“person” includes viable fetus); Presley v. Newport Hospital, 117 R.I. 177 , 365 A.2d 748 (1976) (“person” includes fetus); Fowler v. Woodward, 244 S.C. 608 , 138 S.E.2d 42 (1964) (“person” includes viable fetus); Nelson v. Peterson, 542 P.2d 1075 (Utah 1975); Vaillancourt v. Medical Center Hospital, 139 Vt. 138 , 425 A.2d 92 (1980) (“person” includes viable fetus); Moen v. Hanson, 85 Wash.2d 597 , 537 P.2d 266 (1975) (“minor child” includes viable fetus); Baldwin v. Butcher, 155 W.Va. 431 , 184 S.E.2d 428 (1971) (“person” includes viable fetus); Kwaterski v. State Farm Mutual Auto Insurance Co., 34 Wis.2d 14 , 148 N.W.2d 107 (1967) (“person” includes viable fetus).
In addition, support for the rule allowing recovery is favored by the weight of legal commentary. See, e. g., 1 J. Dooley, Modem Tort Law § 14.04, at 299 (1977); 1 S. Speiser, Recovery for Wrongful Death 2d § 4.38, at 564 n.35 (1975) (“The opinions of recent cases permitting recovery are by far the better reasoned ones.”); Kader, supra at 666; Note, 46 U.Cinn.L.Rev., supra at 272; Annot., 84 A.L.R.3d supra at 416-17 (“In attempting to compare and evaluate the various conflicting arguments, it would appear . . . the more persuasive arguments are those which favor permitting a wrongful death action to be maintained for the death of an unborn child.”). See generally 2 F. Harper & F'. James, The Law of Torts § 18.3, at 1028 (1956).
The minority rule, denying coverage for a viable fetus, is followed in these jurisdictions: Kilmer v. Hicks, 22 Ariz.App. 552 , 529 P.2d 706 (1975) (“person” excludes viable fetus); Justus v. Atchison, 19 Cal.3d 564 , 565 P.2d 122 , 139 Cal.Rptr. 97 (1977) (“minor person” excludes viable fetus); Stern v. Miller, 348 So.2d 303 (Fla.1977) (“person” excludes seven-month old fetus); State ex rel. Hardin v. Sanders, 538 S.W.2d 336 (Mo.1976) (“person” excludes viable fetus); Egbert v. Wenzl, 199 Neb. 573 , 260 N.W.2d 480 (1977) (“person” excludes viable fetus); Graf v. Taggert, 43 N.J. 303 , 204 A.2d 140 (1964) (“person” not construed; wrongful death action may not be maintained on behalf of fetus because determination of “pecuniary injuries resulting from death” too speculative); Endresz v. Friedberg, 24 N.Y.2d 478 , 301 N.Y.S.2d 65 , 248 N.E.2d 901 (1969) (“decedent” excludes seven-month old fetus); Cardwell v. Welch, 25 N.C.App. 390 , 213 S.E.2d 382 , cert. denied, 287 N.C. 464 , 215 S.E.2d 623 (1975) (“person” excludes viable fetus); Scott v. Kopp, -Pa.-, 431 A.2d 959 (1981) (wrongful death action may not be maintained on behalf of eight-month old fetus); Hamby v. McDaniel, 559 S.W.2d 774 (Tenn.1977) (“person” excludes viable fetus; based on view that Tennessee wrongful death statute to be strictly construed); 3 Lawrence v. Craven Tire Co., 210 Va. 138 , 169 S.E.2d 440 (1969) (“person” excludes viable fetus). Iowa, as previously noted, has followed the minority rule as to a nonviable fetus. McKillip v. Zimmerman, 191 N.W.2d 706 (Iowa 1971).
The majority opinion says a viable fetus is not a “person” under our survival statute; however, nineteen of the jurisdictions noted above have expressly held viable fetuses are “persons” for purposes of their respective death statutes, while only six have held they are not.
*279 III. The effect of Roe v. Wade. In support of its assertion that an unborn child is not a “person” at common law, the majority quotes at length from Roe v. Wade. That case, however, involved a woman’s right to terminate her pregnancy; it was not an action for wrongful death. The privacy interest of the woman, which was the basis of Roe v. Wade, is not involved here; in fact, no personal interests are advanced by the majority’s view here except those of a tortfeasor, who escapes liability. Furthermore, the statement in Roe v. Wade, that “person” under the fourteenth amendment does not include an unborn child, 410 U.S. at 158, 93 S.Ct. at 729, 35 L.Ed.2d at 180, does not preclude our finding, for purposes of our survival statute, that it does. Words used in different contexts may be interpreted differently. At least six of the states which have held “persons” under their death statutes included viable, unborn children, have done so since Roe v. Wade was decided: Danos, 383 So.2d at 1021 (La.); Salazar, 95 N.M. at 154 , 619 P.2d at 830 ; Mone, 368 Mass. at 360 , 331 N.E.2d at 917 ; Libbee, 268 Or. at 267 , 518 P.2d at 639 ; Presley, 117 R.I. at 188 , 365 A.2d at 753 ; Vaillancourt, 139 Vt. at 143 , 425 A.2d at 94 ; see Kader, supra at 659 (“Opinions since Roe v. Wade advocating recovery [for a viable fetus] either ignore Roe or distinguish it.”) Thus, the trend toward allowing recovery has not been blunted by that decision. Kader, supra at 663.
It has been argued that Roe v. Wade actually favors recovery for a viable fetus because of its recognition that a state has an “important and legitimate interest in potential life,” which becomes a “compelling” interest at the point of viability, 410 U.S. at 162-63, 93 S.Ct. at 731, 35 L.Ed.2d at 183. See Kader, supra at 660-62, where the author discusses several cases taking this approach. While I do not necessarily adopt that view, it further demonstrates that Roe v. Wade is at least questionable authority for denying recovery in the present case.
If we are to give present-day meaning to our survival statute, we must conclude that an unborn child, at least at the stage of viability, is a “person” within its scope, a view supported by the great weight of authority. Accordingly, the application of the rule of McKillip should not be extended to the facts of this case.
I would reverse the ruling addressed in Division III and permit the matter to proceed to trial.
REYNOLDSON, C. J., and HARRIS, J., join in this dissent.
. E. g., Wendt v. Lillo, 182 F.Supp. 56, 62 (N.D. Iowa 1960) (“Seldom in the law has there been such an overwhelming trend in such a relatively short period of time as there has been in the trend toward allowing recovery for prenatal injuries to a viable infant.”) Wendt, a diversity case, involved a claim for prenatal death of a viable fetus under Iowa law, an issue which had not yet been decided by our court. Judge Graven, in concluding Iowa would allow such recovery, relied to a large extent on this trend. See also W. Prosser, Handbook of the Law of Torts § 55, at 336 (1971) (beginning in 1946, “a rapid series of cases” allowing recovery for prenatal injuries or death where the child is born alive, “brought about what was up till that time the most spectacular abrupt reversal of a well settled rule in the whole history of the law of torts”).
. Iowa is shown to be a state denying recovery based upon McKillip v. Zimmerman, 191 N.W.2d 706 (Iowa 1971). However, as previously noted, McKillip is distinguishable from the present case.
. The Tennessee legislature effectively overruled the Hamby decision by statute in 1978. See Tenn.Code Ann. § 20-607 (Supp.1977), as amended by 1978 Tenn.Pub.Acts ch. 742, § 1.8.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9734669. Public record. Not legal advice.