concurring in result only.
We are of course bound by the decision in American Family Mut Ins. Co. v. Ward, 774 S.W.2d 135 (Mo. banc 1989), for what it holds. This is so even though the regular judges of the Supreme Court were evenly divided, and the case was resolved only through the presence of a special judge. I beHeve that there are distinctions between the Ward case and this one which might lead to a different result. The Su*696preme Court’s opinion, however, paints with a broad brush, and my colleagues persuade me that it dictates affirmance.
The plaintiff in Ward was a minor who had lost her mother in an accident. The Court observed that a total recovery of $25,000, with the client’s share reduced by one-third for attorneys’ fees, could hardly be described as a “windfall.” 774 S.W.2d at 138. There is no indication that the minor, through her guardian, sought to recover for medical expenses. The real question in that case, then, was whether the hospital’s charges were to have priority over the minor child’s recoverable damages.
In the wrongful death suit at issue the petition expressly sought recovery for the hospital charges, stating the amount to be $200,000. The plaintiffs were adult daughters of the deceased. The insurance company agreed to pay the full policy limits of $500,000. It is fairly inferable that the claim for the substantial medical charges1 constituted an important factor in inducing the insurer to settle. We have only the pleadings, but there is a strong indication that the daughters will have a substantial windfall if their judgment is ultimately affirmed.
I doubt very much that the General Assembly had such a windfall in mind when it amended the wrongful death statute, section 537.090 RSMo 19942, to allow recovery of items having nothing to do with the damages sustained by the survivors. The essence of the present wrongful death statute can be traced back at least to 1929. As many cases point out, the remedy it provided was purely statutory and self-contained. See e.g. Sullivan v. Carlisle, 851 S.W.2d 510, 512 (Mo. banc 1993); Hagen v. Celotex Corp., 816 S.W.2d 667, 674 (Mo. banc 1991).
The hospital hen law, section 430.230 et seq., dates back to 1941. Its purpose was to allow hospitals to recover their charges from the proceeds of any action for damages against the persons causing the injury requiring hospitalization. Until 1979, there was no tension between the wrongful death statute and the hospital hen law, because the former did not provide recovery for the victim’s hospital expenses.
In 1979 the General Assembly amended section 537.090 to permit wrongful death plaintiffs to recover “such damages as the deceased may have suffered between the time of injury and time of death and for the recovery of which the deceased might have maintained an action for had death not ensued.” This legislation introduced a foreign element into the permissible recovery by allowing the suit to include common law claims having no relation to the damages suffered by the survivors. The newly recognized recovery incorporated the principles of the existing body of tort law in measuring the permissible scope of recovery. The amended statute was not a code unto itself. It was, rather, a hybrid.
The hospital lien law expounds a policy fully as much as does the wrongful death statute. This policy calls for paying hospital bills out of the damages for the victim’s injuries. I find nothing to indicate that the legislature, in enacting the 1979 amendments to the wrongful death statute, had any purpose of allowing the survivors to pocket money recovered on account of hospital bills.
The courts should explore means of harmonizing the two statutes whose policies are now at odds. The courts have not been unwilling to make similar adjustments in the past, and they have not always considered that they are without power to do equity until the General Assembly acts. See e.g. Missouri Pac. R. Co. *697v. Whitehead & Kales Co., 566 S.W.2d 466 (Mo. banc 1978); Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983). In a case such as this one, it would not be difficult for the jury to say specifically how much of its award represented hospital expenses. It would also be possible to provide for an equitable apportionment of any settlement.
Were I free to do so, I would reverse and remand for further proceedings. Under present circumstances, I can only hope that the Supreme Court will see fit to consider the case so as to harmonize the several statutes involved and provide an equitable solution.
I concur in the result reached.
. The figure of $190,000 for the hospital charges raises my eyebrow, but if the case is remanded at some stage then the daughters are free to dispute the amount of the hospital’s claim.
. All further statutory references are to RSMo 1994 unless otherwise indicated.