No. 83-113
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
JOHN KUHNKE, Individually, and as
Personal Representative of the Estate
of ANNABELLE KUHNME, Deceased,
Plaintiff and Appellant,
JOHN A. FISHER, DOUGLAS W. ALVORD,
NqD BOZEm DEACONESS HOSPITAL I
Defendants and Respondents.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable W. W. Lessley, Judge presiding.
COUiiSEL OF RECORD:
For Appellant:
John D. Alexander argued, Great Falls, Montana
Paul Luvera, Jr., argued, Vernon, Washington
For Respondents:
Berg, Coil, Stokes r Tollefson; Ben Berg, Jr. argued
for Fisher, Bozeman, Montana
Wellcome & Frost; Page Wellcome argued for Alvord,
Bozeman, Montana
Poore, Roth & Robinson; Douglas Buxbaum argued for
Bozenan Deaconess Hospital, Butte, Montana
Submitted: January 12, 1984
Decided: May 24, 1984
,.
.
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
In this case the Gallatin County District Court,
Eighteenth Judicial District, granted summary judgment
aqainst a claim for the wrongful death of an unborn child.
Judgment was entered on jury verdict against the plaintiff
John Kuhnke on his claim that the death of his wife occurred
through the malpractice of the defendant doctors and
hospital. On Kuhnke's appeal from both decisions we affirm
the summary judgment aqainst his claim for the death of the
unborn child; and we reverse the judgment against the
plaintiff on his claim for the wrongful death of the wife.
I.
Stated simply the first issue is whether the Montana
courts may entertain an action for the claimed wrongful death
of a fetus under our wrongful death statute. Plaintiff has
stated the issue in terms of a "viable fetus."
Annabelle Kuhnke, 8 months pregnant, was admitted to
Rozeman Deaconess Hospital, on May 11, 1978. On May 12 she
was pronounced dead in the hospital. Her unborn fetus died
with her. John Kuhnke, the husband of Annabelle and the
father of the unborn child, charges their deaths were the
result of the professional failures of the hospital and of
Drs. John A . Fisher and Douglas VJ. Alvord. The District
Court granted the pretrial motion of all defendants for
summary judgment, dismissing the claim for recovery for the
wrongful death of the fetus.
An action for the wrongful death of a fetus was unknown
to the common law. Kuhnke must found his claim on the terms
of section 27-1-512, MCA, which states:
"27-1-512. Action parent o r guardian f o r i n j u r y
t o - d e a t h of c h i l d o r w a r d .
- or E i t h e r ~ a r e n tmav
m a i n t a i n an a c t i o n f o r t h e i n j u r y o r d e a t h o f i .
minor c h i l d and a g u a r d i a n f o r ?n-jury o r d e a t h of a
ward when such in-jury o r d e a t h i s c a u s e d by t h e
wrongful a c t o r n e g l e c t of a n o t h e r . . ."
The i s s u e i s n o t new a l t h o u g h i t i s p r e s e n t e d i n t h i s
Court f o r t h e f i r s t time. By a r a t i o of b e t t e r t h a n 2 t o I ,
t h e m a j o r i t y of s t a t e s have r u l e d i n f a v o r o f p e r m i t t i n g a
wrongful death a c t i o n . on behalf of an unborn child. F!4
A.L.R.3d 4 1 1 (1978). The d i v i s i o n of c o u r t s i s r e c o g n i z e d i n
R e s t a t e m e n t (Second) of T o r t s , S 869, which f o l l o w s :
" S e c t i o n - - - o an unborn c h i l d .
869. Harm t - (1) One
who t o r t i o u s l y c a u s e s harm t o an unborn c h i l d i s
s u b j e c t t o l i a b i l i t y t o t h e c h i l d f o r harm i f t h e
c h i l d i s born a l i v e .
" ( 2 ) I f t h e c h i l d i s n o t born a l i v e , t h e r e i s no
L i a b i l i t y u n l e s s - a p p l i c a b l e wrongful d e a t h
the
s t a t u t e - provides."
so (Emphasis a d d e d . )
As i t sometimes o c c u r s , among t h o s e s t a t e s which have
passed on the question differing conclusions have been
r e a c h e d a s t o whether " t h e a.pplica.ble w r o n g f u l d e a t h s t a t u t e
so provides," even though similar terms are used in the
statutes. For example, C a l i f o r n i a h o l d s a g a i n s t such r i g h t
of action, J u s t u s v. AtchiKson ( 1 9 7 7 ) , 19 ~ a l . 3 d 564, 565
A~€YL~&~(:>I%
P.2d 122, 139 Ca. Rptr. 97. The s t a t e s of washington and
Idaho hold otherwise, recognizing such actions. Volk v.
Baldazo ( 1 9 8 2 ) , 103 Idaho 570, 651 P.2d 11; Moen v. Hanson
(19751, 85 Wash. 597, 537 P.2d 266.
I n J u s t u s , t h e C a l i f o r n i a c o u r t r e f e r r e d t o s e c t i o n 377
of its Civil Code of P r o c e d u r e which p r o v i d e s a. w r o n g f u l
d e a t h a c t i o n f o r a "minor p e r s o n . " The C a l i f o r n i a Supreme
C o u r t d e t e r m i n e d t o f o c u s n o t on t h e word "minor," b u t on
the word "person" to determine whether its legislature
i n t e n d e d an unborn f e t u s t o be included within t h e latter
term. 565 P.2d at 130. The court then determined, relying
essentially on Roe v. Wade (1973), 410 U.S. 113, 161, 93
S.Ct. 705, 731, 35 L.Ed.2d 147, that such an action is not
permitted. In - the Supreme Court found that the unborn
Roe,
have never been recognized in I.aw as persons in the whole
sense, for purposes of the Fourteenth Amendment. The
California court held that the legislature, adopting the
statute providing for wrongful death action was creating an
entirely new cause of action where none was thought to exist
before, and intended to occupy the field of recovery for wrongful
death. Therefore as a court, it could not enact a judge-made
provision for such action.
In Moen, the Washington court considered the effect of
its wrongful death statute which refers to "a minor child."
It concluded that a viable fetus was a "child," and that the
term "minor" did not disqualify a fetus because the purpose
of the term "minor" was to mark the upper boundary of the
parents' potential cause of action. The Washington court was
impressed with the hypothetical example in Stidam v. Ashmore
(1959), 109 Ohio App. 431, 167 N.E.2d 106, involving twins
wrongfully injured simulanteously in womb, one born alive and
one stillborn. The Ohio court concluded that to a]-low
recovery for only one of the twin victims is logically
indefensible. Washington decided to follow the example of
the majority states, including Oregon and Illinois in
recognizing the cause of action. See, Libbee v. Permanente
Clinic (1974), 268 Or. 258, 518 P.2d 636, 520 P.2d 361;
Chrisafogeorgis v. Brandenberq (l.973), 55 I11.2d 368, 304
N.E.2d 88.
In Idaho, the wrongful death statute provides an action
for a "minor child." The Idaho Supreme Court examined this
statute in Volk v. Baldazo (19821, 103 Idaho 570, 651 P.2d 11
and held that the term "minor child" marks the upper age
limits beyond which the parents' cause of action may not be
extended, but that the term did not preclude a wrongful death
action on behalf of a viable unborn fetus which died of
injuries and hence was never born alive. In reaching its
decision, the Idaho court determined that in that state a
cause of action would lie on behalf of a viable fetus which
sustained prenatal injuries but was subsequently born alive.
It concluded that if a viable fetus had survived the injuries
and could pursue a cause of action on his or her own behalf
for those injuries, a wrongful death action where the death
of the fetus occurred through injury was not precluded where
another statute provided that a child conceived but not yet
born is an existing person whose interests can be protected.
The Idaho court was impressed with the purpose of wrongful
death statutes, to provide damages to those persons who are
bereaved or suffer a loss by virtue of the death of the
victim.
What the cases reflect is an honest difference of
opinion among the state courts as to the effect to be given
to nearly similar provisions. For example, in Justus, the
California Supreme Court responded to sections 25 and 26 of
its Civil Code. Section 25 provided that "minors are all
persons under 21 years of age." Section 26 specified that
"the periods specified in the preceding section must be
calculated from the first minute of the day on which persons
are born to the same minute of the corresponding ca
ly
completing the period of minority." The California Court of
Appeal in Norman v. Murphy (1954), 124 Cal.App.2d 95 , 268
P.2d 178, had relied on those provisions to exclude an unborn
fetus from the class of "minor persons" referred in its
section 377. The Supreme Court in Justus held such reasoning
to be erroneous, saying that the purpose of section 2 6 was to
facilitate computation not on the beginning but on the end of
the period of minority. 5 6 5 P.2d at 130.
We differ from California in such reasoning. We have a
similar statute, section 41-1-102, MCA, which provides that
the period of minority "must be calculated from the first
minute of the day on which persons are born to the same
minute of the corresponding day completing the period of
minority. " In our opinion, that statute defines what is a
"mi-nor child." Under that statute, an unborn or stil-lborn
fetus does not aual-ify as a "minor." Therefore it cannot be
a minor child.
That there is a field here in which the legislature
should act is beyond question. Wrongful death statutes are
remedial, having a compensatory purpose. As the Washington
court noted in Moen, "mental anguish and grief at bereavement
are clearly experienced by the parent whether or not a viable
fetus survives to full term," 537 P.2d at 268. Because our
statute, section 41-1-102, MCA, points so directly at
defining the period of minority, we hold that the legislature
has indeed occupied the field in defining what is a minor
child. A statute that allows for the recovery of the
wrongful death of an unborn or stillborn child must await
legislative action. We affirm the District Court's summary
judgment aqainst the action for the death of the unborn fetus
in this case.
The bench and bar should recognize the limited scope of
this opinion. It refers only to the right to sue for the
wrongful death of unborn or stillborn fet.uses. It has no
reference to criminal actions relating to unborn fetuses. It
has no reference to prenatal injury sustained by a fetus
subsequently born. We are not called upon, in view of our
decision, to determine whether a cause of action for wrongful
death applies only to a viable fetus.
We reverse the defendant's judgment in favor of the
defendants on the claim for the wrongful death of the wife on
the grounds of improper argument by one of counsel for the
defendants during final summation.
- "Good Samaritan1'Arqument
The -
In instruction no. 14, the jury was told by the District
Court that it was no defense to the plaintiff 's claim that
the defendant Dr. Alvord was rendering emergency care or
assistance without compensation. to Annabelle Kuhnke.
That instruction became the law of the case. The jury
was not to consider that Dr. Alvord was not Annabelle's
regular doctor, that he was simply helping out another
doctor, and that he would receive no compensation for his
effort.
In spite of the court's instruction, the following
argument occurred:
"MR. 'WELLCOME: There has been an interest in the
case by the medical community in Bozeman because
what it would indicate is if you find a. verdict
against Dr. Alvord, then no physician in the
community of Bozeman is going to feel that he can
a t any time, get involved in a situation where
somebody asked him to help out and where somebody
says, 'Please come in and help this particular
patient. I know it's not your patient, I know you
have no responsibility to do that, but, I really
need your assistance. Will you help?'
"And of course, there is a medical ethic too, that
they take that requires that type of help, but,
look at it, they're really caught between the
proverbial rock and a hard spot.
"MR. LUVERA: Excuse me, Your Honor, I thought you
defined the law for the Jury, I thought that that's
what this --
"THE COURT: I did and I think --
"MR. LUVERA: I object.
"THE COURT: I can understand that, but, I'm going
to let him argue that.
"MR. WELLCOME: That is a critical point in this
case, ladies and gentlemen, there is no doubt about
it. Because if you award and arrive at a verdict
contrary to Dr. Alvord in this case, then you say
to him and you say to the medical community, 'Don't
get involved in this type situation because you'll
be dragged along by the plaintiff, and dragged
along by your fellow practitioners, and dragged
along by the hospital in which you practice your
profession.' It simply should not -- it shouldn't
happen under the facts and circumstances of this
particular case."
Plaintiff moved the District Court for a new trial
following the adverse verdict. The District Court denied. the
same. In Bliss v. Wolcott (1910), 40 Mont. 491, 107 P. 423,
the District Court granted a new trial and we affirmed
because defense counsel in his argument to the jury in
summation argued matters that were outside of the record and
had been withdrawn from the jury by the court. In Bliss, we
stated:
"A party is entitled to have a trial upon the
evidence properly in the case; and while it is
true, as counsel for defendant argue, that if the
court had persisted in sending the case to the jury
upon the theory upon which the instructions were
formul.ated, the plaintiff would have had no cause
of complaint, yet, in overruling the objection of
counsel for plaintiff and permitting opposing
counsel to call the attention of the jury to the
excluded evidence, as furnishing a reason why
plaintiff should not recover, it allowed the jury
to consider evidence not before them. The behavior
of counsel was indefensible. The court should not
have permitted it. The motion for a new trial was
properly granted." 40 Mont. at 496-97, 107 P. at
425.
Here the cause comes to us on the denial of the motion
for a new trial by the district judge. The stance on the
law is, however, the same. In the light of the court's
instruction, the argument was indefensible.
Re~utationof the Defendants
Before trial, the District Court had entered an order -
in
limine prohibiting reference to the effect of the lawsuit on
the reputation of the doctors and the hospital. Nonetheless,
the same counsel made the following comment in final
argument:
"So, if you're going to prevent what I believe and
submit is this gross miscarriage of justice, if
you're going to answer Dr. Alvord in the
affirmative as I think you should, does this jury
understand what's happening to me in this
courtroom? What thev're doing to me and I think
you do. "
Again the order of the court - limine established the
in
boundaries as to the law of the case for counsel to observe.
The argument was improper.
Out of Town Witnesses and Parties
---
Further comments were made by counsel for Dr. Alvord
which were outside the record. He argued:
"Everybody is going to go home. You understand
that Dr. Mattox is already back in New Mexico, Dr.
Darvill has gone hack to Washington, Mr. Luvera is
going to go back to Washington, Mr. Kuhnke is going
to, I don't know if it's to Alaska or to Thompson
Falls, as he's indicated. Who's going to be left
here? Who's going to be left here in thj s
community? Well, I am, Dr. Alvord is, he's going
to continue practicing medicine in this community
as he has since he came to Bozeman as an internal
medicine specialist."
In Pederson v. Dumouchel (19671, 7 2 Wash. 73, 431 P.2d
973, the Washington court held that such argument was an
appeal to local prejudice and passion and in effect a method
to turn the jury into a "home-town rooting section."
Washington held that a case should be argued upon the facts
without an appeal to prejudice and it did not approve of this
kind of argument. Nor do we.
Unpaid Bills
In another attack on final argument, counsel for Dr.
Alvord referred to the fact that the funeral bill for
Annabelle Kuhnke had not been paid. He stated:
"The only thing you want to keep in mind in this
case then I'm going to pass on from damages, is
that here we've got somebody who comes into our
community and wants us, ladies and gentlemen of
this jury, to assess a large verdict against these
defendants here and he's been in this community
before and he was here in May of 1978 and his wife
was hospitalized and unfortunately, certainly she
died, but what is the status of the funeral
balance ?
"MR. LUVERA: I object as highly prejudicial,
irrelevant, a comment by counsel on it. I really
would like to be heard on that. I think that it's
SO --
"THE COURT: I'm not going to interfere I have
:
great confidence in that jury.
MR. LUVERA: Very well.
"THE COURT: Listen to this argument.
"MR. WELLCOME: All right. My recollection a.nd you
trust your own, is that Mr. Kuhnke on the witness
stand was asked 'Was the funeral bill paid?' And he
said, 'No, Sir.' That's my only point."
It was completely irrelevant to the cause of action
being tried that the funeral bill was not paid at the time of
trial, for here the implication strong that the plaintiff
was a deadbeat.
We need cite no authority that when a. person is injured
or has suffered death through the wrongful death of another,
the incurrence of the medical bills and the funeral costs,
without more, is sufficient to establish a basis for the
recovery of damages. In an action for the wrongful death of
an adult, such damages may be given as under all the
circumstances of the case may be just, section 27-1-323, MCA.
The only limitation is that damages must in all cases be
reasonable, for no more than reasonable damages can be
recovered, section 27-1-302, MCA. No statute, and no case
law, requires the payment of medical bills before payment can
be recovered in a wrongful death cause.
In answering the of improper argument, defendants'
counsel have presented argument that the trial court is in
the best position to judge the prejudice to the jury from the
statements; that the refusal of the trial court to set aside
the verdict must be upheld unless its discretion was abused;
that there is substantial evidence to support the defendants'
verdict; that great latitude is allowed in oral argument;
that the court's instruction that the statements of counsel-
to the jurors was not to be considered as evidence and could
be disregarded should be accorded value; and one of counsel
suggests that if a new trial be granted it should be as to
Dr. Alvord only.
In Brothers v. Town of Virginia City (1976), 171 Mont.
352, 558 P.2d 464, we held that where there is substantial
evidence to support the verdict, the District Court's refusal
to grant a new trial would not be disturbed. That decision,
however, is applicable when the ruling of the District Court
is based on whether there is substantial evidence to support
the jury's verdict, and no other element affects the jury
verdict. If the jury had returned a verdict in favor of the
plaintiff in this case, we should be constrained on review of
the record to hold that there was substantial evidence in
favor of the plaintiff. What controls is that in this case,
where there was conflicting but substantial evidence on both
sides of the issue, and here it appears that one of the
parties was prevented from receiving a fair trial by improper
argument in summation, the question of whether substantia.1.
evidence supports the jury verdict in spite of the oral
argument does not arise. The acid of the improper argument
may have eaten away the substantial evidence presented by the
plaintiff and left only prejudice against him. When a
party's right to a fair trial has been materially impaired by
improper jury argument, the fact of the imperfect trial
transcends the substantial but conflicting evidence that
supports the jury verdict.
The District Court ' s rulings the conduct
counsel in this cause, including the denial of new trial., are
to weighed against his obvious concern a-bout what was
happening in his courtroom:
"THE COURT: I have been terribly disturbed about
Mr. Wellcome's conduct in this case from the very
start. Mr. Wellcome does not heed the court's
rulings, he's had me shouting at him during the
period of time of court. His--I don't know what I
would characterize his final argument as counsel
for the plaintiff but he went as far as he could
and I understand his concern and I understand his
client's concern but that there was a threat in
that where he stated to the jury that Dr. Alvord
has been here all the time and his wife has been
here all the time and his--they will be here when
the verdict is given, concerned me and the--you
will destroy the integrity and the feeling and the
practice of medical professions, all disturbs me
but I don't think that anything will be added to
the justice of this situation by my instructing the
jury and I'm not going to do it."
The court made that sta.tement in deciding not to further
instruct the jury about the improper argument.
Counsel for Dr. Fisher point out that Rule 59(a),
M.R.Civ.P., gives the court the option to grant a new trial
"to all or any of the parties," and suggest that under Irwin
v. Marvel Petroleum Corporation (1961), 139 Mont. 413, 424,
365 P.2d 221, 226, we grant a new trial to one of the
defendants, and a.ffirm the judgment in favor of the other
defendants.
It is impossible in this case to separate the defendants
in considering the effect of the prejudice created by the
argument of one of counsel for one of the defendants. We
have not set forth in detail the facts in this case upon
which plain.tiff claims the death of Annabelle was the result
of the wrongful acts of the professionals here. It is enough
to say that the evidence presented by the plaintiff included
professional testimony which cast blame upon one or all of
the defendants. In like manner, the defendants presented
professional testimony and in some instances, their witnesses
blamed one or other of the remaining defendants. It may have
been possible in this case, if the cause had been fairly
tried, that one or more of the defendants would have received
a defendant's verdict, and depending upon the weight and
credibility given to the testimony by the jury, such jury
action vrould be sustained. There is no way now to measure
how the prejudicial argument may have affected not only Dr.
Alvord, but each of the remaining defendants. The only way
to be sure which, if any, of the defendants should be
exonerated or whether plaintiff should recover at all is to
grant a new trial.
The District Court had also ordered - limine that no
in
reference was to be made to the fact that John Kuhnke had
remarried after the death of his wife, Annabelle.
In the trial of this cause, that order of the District
Court may have been violated in two facets.
In an action for the wrongful dea.th of an adult, such
damages may be given as under all the circumstances of the
case may be just, section 27-1-323, MCA. One of the elements
of such damages, in the case of the wrongful death of a wife
and mother, is the reasonable value of the services that she
could reasonably have been anticipated to perform for the
surviving husband and surviving children in the future.
Proof of that element of damages may be supplied by testimony
from qualified persons or experts as to the reasonable costs
in the community for such services as a cook, housekeeper,
babysitter, gardener, and so on, assuming of course,
foundation for those items. The jury may consider such
testimony in determining the reasonable value of the lost
future services of the wife. It is not germane to a
consideration of such damages that the husband may have
remarried, or that he may not have hired anybody to take her
place for those various services. Questions in that vein are
improper and should be overruled. If in fact the surviving
spouse does hire a person or persons to supply the lost
services, this fact can be established in discovery, and the
costs of such services can be admitted for the jury to
consider in determining the value of the lost services. If
however, discovery has shown that such services have not been
replaced in that manner, a question at trial such as that
directed to the husband in this case, whether he had actually
hired somebody to perform the services, is irrelevant.
Again, it is the incurrence of the loss of the wife's
services resulting from the wrongful death that provides a
basis for the damages.
It can also be said without further citation that
damages become fixed as of the moment of the injury.
Therefore, remarriage of a spouse in a wrongful death case is
irrelevant and should not be referred to in any manner.
We make these comments for the guidance of the District
Court in the new trial.
IV.
The plaintyff John Kuhnke raised two other issues which
are unnecessary for us to discuss in view of our reversal for
a new trial. One relates to the limitation of voir dire and
the seating on the jury of Dr. Alvord's personal. physician.
As a prospective juror, the doctor consistently maintained
that he could hear the case fairly. We would not reverse the
case on that ground.
The remaining issue by the plaintiff is whether the jury
verdict in favor of the defendants' is supported by
substantial evidence. In view of our finding that the trial-
was imperfect, and prejudicial to the plaintiff, it is not
necessary at this juncture to determine whether substantial
evidence supported either side. We find that there was
conflicting evidence substantial for either side, which if
believed by a jury, would support a verdict for either side.
The evidence in favor of the plaintiff is not so
overwhelming, although it is substantial, that we must in
good conscience order a verdict in favor of the plaintiff and
reverse for a new trial on the issue of damages only. We
decline to do so on the record before us.
v.
Accordingly, we affirm the decision of the District
Court in granting summary judgment with respect to the
wrongful death of the unborn child; we reverse the judgment
in favor of the defendants and remand this cause for a new
trial as to all issues arising out the claimed wrongful death
of Annabelle Kuhnke.
We Concur:
J u s t i c e D a n i e l J. Shea, concurring:
S p e c i a l concurrence:
A l t h o u g h I d o n o t a g r e e w i t h some o f what i s s t a t e d i n
t h e majority opinion, I nonetheless join t h e majority in
o r d e r i n g a new t r i a l h e c a u s e o f what I c o n s i d e r t o b e t h e
c u m u l a t i v e and p r e j u d i c i a l e r r o r by c o u n s e l f o r Douglas W.
Alvord i n h i s f i n a l arguments t o t h e jury.