dissenting.
I respectfully dissent. The dictionary definition of “statement” cannot be stretched to accommodate the majority’s policy preference that the definition of “statement” under section 287.215, RSMo *5281994, should be the same as that under other discovery provisions. Although the majority acknowledges the rule that legislative intent is derived from the statute’s words “used in their plain and ordinary meaning,” Budding v. SSM Healthcare Sys., 19 S.W.3d 678, 680 (Mo. banc 2000), it then rewrites the statute. In doing so, furthermore, it cavalierly tosses aside this Court’s analysis in State ex rel. Mo. Pac. R.R. Co. v. Koehr, 853 S.W.2d 925, 926 (Mo. banc 1993), that the dictionary definition of “statement” is “at variance” with the internal definition adopted in a different discovery provision, Rule 56.01(b)(3), which expressly includes “video, motion picture or other recording ... of the party.” It then unhesitatingly overrules the Court of Appeals’ holding in Erbschloe v. Gen. Motors Corp., 823 S.W.2d 117, 119 (Mo.App.1992), that the term “statement” in section 287.215 does not include videotapes with no audio component.
The dictionary definitions used by the majority bear repeating: A “statement” is:
“1. Act of stating, reciting, or presenting, orally or on paper; as, the statement of a case. 2. That which is stated; an embodiment in words of facts or opinions; a narrative; recital; report; account.” WEBSTER’S NEW INTERNATIONAL DICTIONARY 2461 (2d ed.1950).
“1: The act or process of stating, reciting, or presenting orally or on paper ... 2: something stated: as a: a report or narrative ... b: a single declaration or remark.” Webster’s Third New International DictionaRY 2229 (1st ed.1961 to 3d ed.1993).
The overriding theme of these definitions is that a “statement” is an affirmative act of communication in words, either oral or written. In no way did plaintiff make a “statement” by being filmed surreptitiously while engaged in conduct that was neither intended as a communication nor constituted in words. The majority view that the surveillance video is best categorized as a “report,” as if plaintiff was unwittingly reporting his condition to whoever might see him, is no less untenable. If it is a report, it must be intended as a report, and it must be a report in words.
In this case, the so-called “statement” was a videotape depicting plaintiff, a waste hauler, performing activities incident to his employment — driving a truck, loading trash barrels into the truck by hand, and using a machine to dump larger barrels— all performed without limitation. In determining legislative intent, this conduct is simply not a “statement” in the “plain and ordinary meaning” of the term, and in 1959, when the section was enacted, not a single legislator could envision that section 287.215 would be applied to non-assertive, unspoken and unwritten conduct revealed in a surveillance video.
In sum, I would reaffirm the decisions in Koehr and Erbschloe and hold that the videotape in question was not a “statement” within the meaning of section 287.215.