Witty v. American General Capital Distributors, Inc.

Decision Date25 February 1987
Docket NumberNo. C-4662,C-4662
Citation727 S.W.2d 503
PartiesKimberly WITTY, Individually and as Surviving Parent of Baby Witty, a Nonborn Child, Petitioner, v. AMERICAN GENERAL CAPITAL DISTRIBUTORS, INC., Respondent.
CourtTexas Supreme Court

Michal W. Melton, Jeffrey M. Stern, Stern & Hirschfeld, Houston, for petitioner.

B. Lee Ware, Michael G. Terry and Frank W. Mitchell, Vinson & Elkins, Houston, for respondent.


Kimberly Witty sued American General Capital Distributors, Inc. under the Texas Wrongful Death Act, Tex.Civ.Prac. & Rem.Code Ann. § 71.002, 1985 Tex.Sess.Law Serv. 7159 (Vernon) (formerly Tex.Rev.Civ.Stat.Ann. art. 4671); the Survival Statute, Tex.Civ.Prac. & Rem.Code Ann. § 71.021, 1985 Tex.Sess.Law Serv. 7162 (Vernon) (formerly Tex.Rev.Civ.Stat.Ann. art. 5525), alleging damages for the death of her fetus; and alternatively alleging property damage as a result of the destruction of her chattel, the fetus.

The trial court held that Witty's claims were barred as a matter of law because there was no live birth. Summary judgment was granted in favor of American General. The court of appeals held that Witty had a wrongful death cause of action and reversed that part of the trial court judgment holding to the contrary. 697 S.W.2d 636. On Motion for Rehearing, the court of appeals also held that Ms. Witty's claim for mental anguish suffered as a result of the loss of her fetus was not barred by recovery of Worker's Compensation benefits since it was not mental anguish resulting from her own physical injuries. We affirm that part of the judgment of the court of appeals which denied the survival cause of action. We reverse that part of the court of appeals' judgment which allowed the wrongful death cause of action and the common law emotional distress action.

Wrongful Death Claim

In 1971, we held that live birth was required for a child to have a cause of action for prenatal injuries. Yandell v. Delgado, 471 S.W.2d 569 (Tex.1971). Similarly, where there has been no live birth, the clear, unambigious language of the Wrongful Death Act precludes recovery for the death of a fetus. The recent codification of the Wrongful Death Act provides recovery for "damages arising from an injury that causes an individual's death." Tex.Civ.Prac. & Rem.Code Ann. § 71.002(b) (emphasis added). Prior to the codification, the Act provided recovery of "damages on account of the injuries causing the death of any person." Tex.Rev.Civ.Stat.Ann. art. 4671 (Vernon Supp.1941-1985) (emphasis added). The legislature did not intend any substantive change in the Act by substituting the word "individual" for the word "person" in the recodification. Tex.Civ.Prac. & Rem.Code Ann. § 10, 1985 Tex.Sess.Law Serv. 7219 (Vernon). Furthermore, we hold that the legislature did not intend the words "individual" or "person" to be construed to include an unborn fetus.

A wrongful death cause of action is purely a creature of statute. The Texas Wrongful Death Act, similar to those of most states, was patterned after Lord Campbell's Act, The Fatal Accident Act, 9 & 10 Vict., ch. 93 § 1 (1846). Sanchez v. Schindler, 651 S.W.2d 249, 251 (Tex.1983). Prior to the passage of Lord Campbell's Act, there was no statutory or common law cause of action for wrongful death.

As we noted in Sanchez, "because the difficulties in reducing the refinements of tort law doctrines into statutory form often result in legislation which is either underinclusive or overbroad and which is frequently couched in ambiguous terms which the court must interpret, judicial decision is the best way to develop tort law." Id. at 252. Nevertheless, we must determine whether the legislature intended an unborn fetus to be included within our wrongful death statute. And, although our wrongful death statute is remedial in nature and must be liberally construed, we may not rewrite the statute in the guise of construing it.

We find nothing in the legislative history to demonstrate an intent that an unborn fetus be embraced within the scope of the statute. As the dissent so aptly stated in Presley v. Newport Hospital, 117 R.I. 177, 365 A.2d 748, 756 (1976) (Kelleher, J., dissenting), such conclusion is "in no way dependent upon whether a fetus is a person in the philosophical, theological, or scientific sense, nor is my belief based upon the Supreme Court's ... pronouncements in the area of abortion." Despite the fact that "we have made great strides in the field of the sciences and we have read with great respect the writings of learned philosophers and theologians, we [must] remember that such individuals cannot create a right of action at law, for this is the job of the Legislature." Id.

In Yandell we recognized that until there is a live birth, there is no cause of action for personal injuries to the fetus. Section 71.003, Tex.Civ.Prac. & Rem.Code, provides for application of the Wrongful Death Act, stating that "[t]his subchapter applies only if the individual injured would have been entitled to bring an action for the injury if he had lived." Tex.Civ.Prac. & Rem.Code § 71.003(a), 1985 Tex.Sess.Law Serv. 7160 (Vernon). The fetus has no cause of action for the injury, until subsequent live birth. Under the clear language of the statute, there is no cause of action for death where there would be no cause of action for injuries. Therefore, since there is no cause of action for injuries to a living fetus, there can be no cause of action for death of a fetus.

This court has recognized the fetus as having an existence separate from its mother. Leal v. C.C. Pitts Sand & Gravel Co., 419 S.W.2d 820 (Tex.1967). In Leal, this court allowed a cause of action for prenatal injuries where the child was born alive. Id. at 822. The common law has recognized the separate existence of a fetus for purposes of inheritance. However, the universal rule, as well as the rule in Texas, is that such ability to take was contingent upon the child's subsequent live birth. Nelson v. Galveston, H. & S.A. Ry. Co., 78 Tex. 621, 14 S.W. 1021 (1890); see also Justus v. Atchison, 19 Cal.3d 564, 139 Cal.Rptr. 97, 106, 565 P.2d 122, 131 (1977).

In view of the common law rule that the rights of a fetus were contingent upon live birth, we feel that had there been the legislative intention to create a wrongful death action for an unborn fetus, the legislature would have specifically so stated. The plaintiff has not directed our attention to any evidence of legislative intent to include an unborn fetus within the scope of our Wrongful Death Act, and we have found none.

While it is true that by a ratio of better than two to one, the majority of states have ruled in favor of permitting a wrongful death action on behalf of an unborn fetus, what the cases actually reflect is an honest difference of opinion among the state courts as to the effect to be given similar statutory provisions. Kuhnke v. Fisher, 683 P.2d 916, 919 (Mont.1984). Since the cause of action for wrongful death is based upon statute, we agree with the California Supreme Court that little would be gained from an analysis of the decisions of all other jurisdictions. Justus, 139 Cal.Rptr. at 105, 565 P.2d at 130. Choosing to deny the cause of action, the Justus court recognized that

when the last word shall have been said in such a consideration, the paramount fact will still remain that rights under our ... [wrongful death act] are to be defined not by what other courts have said touching their own statutes, but from the meaning and intent of our own law from a reading of it.


The reasons asserted by other jurisdictions, Kimberly Witty, and the dissent, for allowing the cause of action appear compelling. However, faced with the same arguments and a wrongful death statute similar to ours, the Florida Supreme Court held that, as compelling as the arguments may be, they were not at liberty to rewrite the statute. Stern v. Miller, 348 So.2d 303, 307 (Fla.1977). Only the legislature is so empowered. "We are confined to a determination of the legislature's intent." Id.

The California Supreme Court found that these same arguments "would be relevant if we were called upon to decide whether California should adopt the proposed cause of action as a matter of judge-made law; they are not persuasive when, as here, the cause of action for wrongful death in this state is a pure creature of statute." Justus, 139 Cal.Rptr. at 102, 565 P.2d at 127. The question presented by this case is "not a matter of evolution of the common law but rather a question of legislative intent." Egbert v. Wenzl, 199 Neb. 573, 260 N.W.2d 480, 482 (1977).

We express no opinion with respect to the existence of the fetus as a person in either the philosophical or scientific sense. We hold only that we have found no evidence that the legislature intended to include a fetus within the scope of our wrongful death statute. Therefore, no cause of action may be maintained for the death of a fetus under the wrongful death statute until the right to bring such action is afforded by the legislature.

Survival Action

In addition to there being no evidence of legislative intent to include the fetus within the scope of the Survival Statute, where a fetus dies in utero, survival action damages either do not exist or may be recovered as part of the mother's personal injury damages. Medical and funeral expenses of the fetus are expenses incurred by the mother as a direct result of her injury. There are, of course, no lost wages by the fetus. Not only is any physical pain and suffering the fetus may experience far too speculative, but in the current state of medical technology, there is not even the possibility of proof to support the cause of action.

Furthermore, our decision in Yandell allows recovery of damages for personal injuries to the fetus only where there is a subsequent live birth. Yandell, 471 S.W.2d at 569. Since the Survival Act...

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