Connor v. Monkem Co., Inc.

COVINGTON, Chief Justice,

dissenting.

I must respectfully dissent.

The issue before this Court, as recognized by the majority opinion, was addressed in Rambo v. Lawson, 799 S.W.2d 62 (Mo. banc 1990): whether a non-viable fetus is a person within the meaning of § 537.080, RSMo 1986. For the reasons stated in Judge Robertson’s separate opinion in Rambo , in which I joined, I disagree with the holding of the majority opinion that a non-viable fetus is a person for the purposes of § 537.080. Nothing has occurred in the short time since this Court decided Rambo to require a different result.

The only factor that serves to distinguish the present case from Rambo is that § 1.205, RSMo 1986, was in force at the time of the incident giving rise to the present controversy. Section 1.205 has no effect on the outcome of this ease. By its terms, § 1.205.2 extends to “unborn children ... all the rights, privileges, and immunities available to other persons, citizens, and residents of this state_” Section 537.080 does not affect the rights of the unborn; it creates a cause of action for the survivors of a deceased person. The beneficiaries of a wrongful death action do not derive their rights from those of the deceased, but from the statute. At common law, the deceased had no right of action for wrongful death. Section 537.080 creates a new right in the beneficiaries, in denigration of the common law, to seek compensation for the death of another. The rights of the deceased are unaffected. The trial court’s holding that a non-viable fetus is not a person for the purposes of § 537.080 does not deny the fetus any rights. Section 1.205.2, therefore, is not implicated. 1

The conclusion reached by the majority opinion does not follow from the premise that precedes it. The majority opinion states 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.” From this premise, the majority opinion concludes that the wrongful death statute must be construed “to allow a natural parent to state a claim for the wrongful death of his or her unborn child, even prior to viability.” Thus, under the logic of the majority opinion, a statute concerning the rights of “unborn children” was intended to create a cause of action in favor of the parents. The conclusion does not follow. Section 1.205.2 does not address the rights of parents.

The majority opinion purports to find support for its holding in § 1.205.1(3), in which the legislature stated a finding that “parents of unborn children have protectable interests in the life, health, and well-being of them unborn child.” In contrast to § 1.205.2, in which the legislature directed the manner in which “the laws of this state shall be interpreted and construed,” § 1.205.1(3) does not require that statutes be interpreted in light of the finding that parents have protectable interests. The majority opinion transforms the legislature’s general finding into a judicial enactment creating a new cause of action available to parents for the wrongful death of a non-viable fetus.

Contrary to an assertion in State v. Knapp, 843 S.W.2d 345, 347 (Mo. banc 1992), in my view unnecessary to the resolution of the issues in that ease, § 1.205 does not purport to define the term “persons.” Although I concurred in Knapp , I would overrule it to *95 the extent that it could be read to indicate otherwise.

Section 1.205 has no effect on the present case. I would affirm the judgment of the trial court.

. The present case is not one in which the rights, privileges, or immunities of a fetus are at issue. Assuming, arguendo, that § 1.205 is applicable in the context of the wrongful death statute, but see Rambo, 799 S.W.2d at 64 , § 1.205 might be read to require that a non-viable fetus be allowed to maintain a wrongful death action as a plaintiff, although such a hypothetical strains credulity-