Olejniczak v. Whitten

605 S.W.2d 142, 1980 Mo. App. LEXIS 2693

Opinion

CLEMENS, Senior Judge.

Action by husband and wife for the wrongful death of their unborn child, allegedly caused by defendant doctor’s negligence. On defendant’s motion the trial court dismissed the petition for failure to state a cause of action. Plaintiffs appeal; we affirm.

Our wrongful death statute, Section 537.-080, RSMo. 1969, provides recovery for wrongful death of a person. State ex rel. Hardin v. Sanders, 538 S.W.2d 336 (Mo. banc 1976), like the case before us, was an action for wrongful death of an unborn child, dismissed for failure to state a claim. In affirming the supreme court reasoned at l.c. 338 that a fetus is not a person and in upholding the trial court’s dismissal squarely ruled: “We hold that a wrongful death action may not be maintained for the death of an unborn child.” So it is here.

DOWD, P. J., and REINHARD and CRIST, JJ., concur.