Rambo v. Lawson

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 principal opinion fails to do so, choosing to follow its own preferred policy instead of adhering to sound jurisprudential tools.

I.

This ease is a case of statutory construction. This is so because the common law knew no action for wrongful death. Frazee v. Partney, 314 S.W.2d 915, 918 (Mo. 1958). Because the common law did not permit an action for wrongful death, the wrongful death statute is in derogation of the common law. When the legislature creates a cause of action in derogation of the common law, that cause of action is limited to the grant of authority set out in the statute. See Simpson v. Kilcher, 749 S.W.2d 386, 389-91 (Mo. banc 1988). The statute is not subject to judicial expansion.

The principal opinion tells us that “[w]e 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.” (Maj. op. at 63). The statement sounds correct; it is not.

The notion of a framework assumes a freedom to operate within boundaries. We have no license to wander freely within a statutory framework to find a policy we prefer. Our decisions, if we are to be a court of law and not an unelected and unaccountable superlegislature, must reflect the intent of the General Assembly, the branch of government which properly makes laws under our constitution. That intent is found in the words used by the legislature in establishing the cause of action. And in construing the words of a statute, we assume that the legislature is aware of the decisions of the courts when it chooses to use the words it uses. Citizens Electric Corp. v. Director Of the Department of Revenue, 766 S.W.2d 450, 452 (Mo. banc 1989).

In 1976, this Court, without dissent, held that the wrongful death statute prohibited a cause of action for the wrongful death of an unborn fetus. State ex rel. Hardin v. Sanders, 538 S.W.2d 336 (Mo. banc 1976). “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 is 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 1979, three years after Sanders , the legislature reenacted the wrongful death statute. Again, the legislature used the word “person;” it did not define “person” to have any meaning other than that held by Sanders . The wrongful death statute has not been amended since 1979.

In 1983, this Court decided O’Grady . The decision in that case rests on a judicial finding that the meaning of the word “person” in the wrongful death statute, reenacted after Sanders , had changed. O’Grady stripped of its rhetoric, is no more than a judicial amendment of the wrongful death statute. In my view, O’Grady is not correct.

The result reached by the principal opinion is correct for precisely the reason O’Grady is incorrect; it is true to the language of the statute. Unfortunately, the Court’s adherence to the rule of law in this case is not the product of allegiance to the rule. Instead, the rule of law employed here is no more than a convenient device by which the Court reaches its preferred policy choice; the Court shows, however, by its statements of policy that it would readily *66 shuck the rule of law to serve its policy directed purpose without remorse. This mindset is betrayed by the Court’s reference to decisions of other jurisdictions. Each of those jurisdictions presumably has its own statute and history of judicial interpretation. Unless it can be shown that those are identical to the Missouri experience, the decisions of other states are no more than make weight for an argument that cannot stand on its own.

In sum, and for the reasons expressed, I would overrule O’Grady as a predicate for the decision reached in the principal opinion.

II.

Judge Holstein’s dissent is incorrect, I believe, for the same reason O’Grady is incorrect. By its acceptance of O’Grady , it, too, assumes authority in this Court to alter a statutory cause of action by judicial alteration of the meaning of the legislature’s language. This is not to say that Judge Holstein’s opinion is not well written or well researched; it is. To the extent that Judge Holstein attempts to make peace with O’Grady , he does so not by the subterfuge of policy arguments, but by reference to a common law heritage which the legislature might have accepted but for Sanders .

As I have said, however, O’Grady is incorrectly decided. Once this Court decided Sanders , the legislature is presumed both to have been aware of and acquiesced in the Sanders definition of “person” by its re-enactment of the wrongful death statute without change. “[Wjhere the Legislature, after a statute has received a settled judicial construction by a court of last resort, re-enacts it or carries it over without change or reincorporates the exact language theretofore construed, it must be presumed that the Legislature knew of and adopted such construction.” State ex rel. Smith v. Atterbury, 364 Mo. 963 , 270 S.W.2d 399, 403-04 (banc 1954). 1

In my view, this is the reason Judge Holstein’s dissent misses the mark. The question in this case is not whether viability is a suitable standard for permitting actions under the wrongful death statute. The question in this case is whether the General Assembly intended to permit a cause of action for the death of any unborn child, viable or not. Even if one assumes, arguendo, that Judge Holstein’s view of the common law is correct and that Sanders is wrong, the General Assembly is presumed to have agreed with the Sanders result by its re-enactment of the wrongful death statute without change.

Judge Holstein presumably answers this, saying that there is no room for construction where the language of the statute is without ambiguity. He is of course correct in his statement of the law; but to say that there is no ambiguity in the meaning of the word “person” is a bit disingenuous when the bulk of his dissent is dedicated to unraveling the difficulty courts have faced in determining the meaning of that very word.

I concur in result only.

COVINGTON, J., concurs.

. I assume, and apparently Judge Holstein does not, that when this Court has spoken without dissent on a question of Missouri law, the issue is settled.