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 or guardian for injury 

-- to or death of child or ward. Either ~arent mav 

maintain an action forthe injury or death of i. 

minor child and a guardian for ?n-jury or death of a 

ward when such in-jury or death is caused by the 

wrongful act or neglect of another . . ." 

The issue is not new although it is presented in this 

Court for the first time. By a ratio of better than 2 to I, 

the majority of states have ruled in favor of permitting a 

wrongful death action. on behalf of an unborn child. F!4 

A.L.R.3d 411 (1978). The division of courts is recognized in 

Restatement (Second) of Torts, S 869, which follows: 

"Section - 869. --- Harm to an unborn child. (1) One 

who tortiously causes harm to an unborn child is 

subject to liability to the child for harm if the 

child is born alive. 

" (2) If the child is not born alive, there is no 

Liability unless - the applicable wrongful death 

statute - so provides." (Emphasis added.) 

As it sometimes occurs, among those states which have 

passed on the question differing conclusions have been 

reached as to whether "the a.pplica.ble wrongful death statute 

so provides," even though similar terms are used in the 

statutes. For example, California holds against such right 

of action, Justus v. AtchiKson (1977), 19 ~al.3d 564, 565 

A~€YL~&~(:>I% 

P.2d 122, 139 Ca. Rptr. 97. The states of washington and 

Idaho hold otherwise, recognizing such actions. Volk v. 

Baldazo (1982), 103 Idaho 570, 651 P.2d 11; Moen v. Hanson 

(19751, 85 Wash. 597, 537 P.2d 266. 

In Justus, the California court referred to section 377 

of its Civil Code of Procedure which provides a. wrongful 

death action for a "minor person." The California Supreme 

Court determined to focus not on the word "minor," but on 

the word "person" to determine whether its legislature 

intended an unborn fetus to be included within the 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 - Roe, the Supreme Court found that the unborn 

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 clay 

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 26 was to 

facilitate computation not on the beginning but on the end of 

the period of minority. 565 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. 

-- The "Good Samaritan1' Arqument 

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 

at 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~utation of 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 - in limine established the 

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, 72 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 counselto 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 - in limine that no 

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 trialwas 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: 
Justice Daniel J. Shea, concurring: 

Special concurrence: 

Although I do not agree with some of what is stated in 

the majority opinion, I nonetheless join the majority in 

ordering a new trial hecause of what I consider to be the 

cumulative and prejudicial error by counsel for Douglas W. 

Alvord in his final arguments to the jury.