OPINION
FONES, Justice.
Certiorari was granted in this case to reexamine prior judicial interpretations of the Wrongful Death Statute, that a viable fetus suffering tortious injury en ventre sa mere does not come within the intendment of the statute, unless born alive.
The Hambys ask that we extend the scope of the Wrongful Death Statute by holding that a viable fetus is a person within the meaning and intent of T.C.A. 20-607.
A majority of the Court adheres to the rule established in Hogan v. McDaniel, 204 Tenn. 235, 319 S.W.2d 221 (1958), and Shousha v. Matthews Drivurself Service, Inc., 210 Tenn. 384, 358 S.W.2d 471 (1962), and affirmed in Durrett v. Owens, 212 Tenn. 614, 371 S.W.2d 433 (1963).
This action was instituted by petitioners Hamby as next of kin and parents of a stillborn child, petitioners alleging that the fetus was eight and one-half months en ventre sa mere and viable when injured in an automobile accident negligently caused by defendant Gary Wayne McDaniel. The trial court sustained a motion for summary judgment, holding that a fetus is not a “person” within the meaning of the Tennes[776]*776see Wrongful Death Statute. The Court of Appeals affirmed.
Section 20-607 T.C.A. reads, in pertinent part as follows:
“The right of action which a person, who dies from injuries received from another, or whose death is caused by the wrongful act, omission, or killing by another, would have had against the wrongdoer, in case death had not ensued, shall not abate or be extinguished by his death . . . .”
The identical issue that confronts us here was presented to this Court for the first time in Hogan. The Court observed that under the common law, death extinguished actions for tortious injuries and that rule prevailed in Tennessee until our legislature adopted the Wrongful Death Act in 1851; that under well settled principles the statute must be strictly construed against the maintenance of any right of action not expressly provided for therein.
Hogan held that it was not reasonable to suppose that the legislature intended to declare that an unborn child was a “person” and that its “next of kin” was entitled to sue for its prenatal injury.
The Court concluded its opinion with the following language:
“There is no ambiguity in our Wrongful Death Statute. We must consider it as it is written, not as we would have it. Only the Legislature has authority to create legal rights and interests. It results that no right of action, such as plaintiffs seek to assert, can be brought until there is legislative authority for it.” 319 S.W.2d at 225.
In 1962, the Court held, “that a viable infant en ventre sa mere suffering injuries may, upon being born alive, prosecute an action against those negligently inflicting such injuries to recover compensation therefor. This being so, it naturally follows from 20-607 T.C.A. that when the child dies from such injuries, the parent of the child may prosecute a suit for such injuries and death.” Shousha v. Matthews Drivurself Service, Inc., 210 Tenn. 384, 392, 358 S.W.2d 471, 476 (1962).
In 1963, the plaintiffs in Durrett v. Owens, 212 Tenn. 614, 371 S.W.2d 433 (1963), urged the Court to overrule Hogan by holding that a viable child is a “person” within the meaning of the Tennessee Wrongful Death Statute, and eliminating the condition of live birth. In refusing to do so, the Court made it clear that in deciding Shou-sha, it adhered to the rationale of Hogan that the statute did not entitle the next of kin of the unborn child to sue. Further, that the Shousha decision was predicated upon recognition of the legal right of a child to begin life unimpaired by physical or mental defects from prenatal injuries, which right matures upon live birth and therefore survives under the statute.
The Wrongful Death Statute has been amended since Durrett v. Owens, supra, was decided. The section of the statute quoted above is exactly the same today as it was when Hogan, Shousha and Durrett were decided.
The legislature is presumed to know the interpretation which courts make of its enactments; the fact that the legislature has not expressed disapproval of a judicial construction of a statute is persuasive evidence of legislative adoption of the judicial construction, especially where the law is amended in other particulars, or where the statute is reenacted without change in the part construed. See Missouri v. Ross, 299 U.S. 72, 57 S.Ct. 60, 81 L.Ed. 46 (1936); Stern v. Miller, 348 So.2d 303 (Fla.1977); Hargrove v. Newsome, 225 Tenn. 462, 470 S.W.2d 348 (1971); Bottomly v. Ford, 117 Mont. 160, 157 P.2d 108 (1945); Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46 (1931); Walling v. Brown, 9 Idaho 740, 76 P. 318 (1904); see also Krohn v. Richardson Merrell, Inc., 219 Tenn. 37, 406 S.W.2d 166 (1966); McKinney v. Hardwick Clothes, Inc., 217 Tenn. 457, 398 S.W.2d 265 (1966).
The Tennessee Legislature’s failure to change the Wrongful Death Statute to provide a right of action for a viable fetus, stillborn, implies approval of the definition of “person” given by this Court in Hogan, Shousha, and Durrett, and gives the [777]*777judicial construction of the statute the effect of legislation.
Changing our construction of the statute at this time would amount to judicial legislation. We noted in Hogan, as follows:
“Where a right of action is dependent upon the provisions of a statute, as in the case at bar, we are not privileged to create such a right under the guise of a liberal interpretation of it. Judicial legislation has long been regarded by the legal profession as unwise, if not dangerous business. It is generally an ill-starred adventure by wilful men.” 319 S.W.2d at 223.
See also Royal Jewelers Co. v. Hake, 185 Tenn. 254, 205 S.W.2d 963 (1947); McBrayer v. Dixie Mercerizing Co., 176 Tenn. 560, 144 S.W.2d 764 (1940).
The minority opinion in the case at bar suggests that the Hogan definition of “person” is based primarily upon the medically unacceptable premise that an unborn child “is a part of its own mother’s physical body.” As we read the opinion, that statement was made in rejection of the conclusion reached by the appellate courts of Minnesota, Illinois, and Mississippi, that life begins at the moment of conception
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
FONES, Justice.
Certiorari was granted in this case to reexamine prior judicial interpretations of the Wrongful Death Statute, that a viable fetus suffering tortious injury en ventre sa mere does not come within the intendment of the statute, unless born alive.
The Hambys ask that we extend the scope of the Wrongful Death Statute by holding that a viable fetus is a person within the meaning and intent of T.C.A. 20-607.
A majority of the Court adheres to the rule established in Hogan v. McDaniel, 204 Tenn. 235, 319 S.W.2d 221 (1958), and Shousha v. Matthews Drivurself Service, Inc., 210 Tenn. 384, 358 S.W.2d 471 (1962), and affirmed in Durrett v. Owens, 212 Tenn. 614, 371 S.W.2d 433 (1963).
This action was instituted by petitioners Hamby as next of kin and parents of a stillborn child, petitioners alleging that the fetus was eight and one-half months en ventre sa mere and viable when injured in an automobile accident negligently caused by defendant Gary Wayne McDaniel. The trial court sustained a motion for summary judgment, holding that a fetus is not a “person” within the meaning of the Tennes[776]*776see Wrongful Death Statute. The Court of Appeals affirmed.
Section 20-607 T.C.A. reads, in pertinent part as follows:
“The right of action which a person, who dies from injuries received from another, or whose death is caused by the wrongful act, omission, or killing by another, would have had against the wrongdoer, in case death had not ensued, shall not abate or be extinguished by his death . . . .”
The identical issue that confronts us here was presented to this Court for the first time in Hogan. The Court observed that under the common law, death extinguished actions for tortious injuries and that rule prevailed in Tennessee until our legislature adopted the Wrongful Death Act in 1851; that under well settled principles the statute must be strictly construed against the maintenance of any right of action not expressly provided for therein.
Hogan held that it was not reasonable to suppose that the legislature intended to declare that an unborn child was a “person” and that its “next of kin” was entitled to sue for its prenatal injury.
The Court concluded its opinion with the following language:
“There is no ambiguity in our Wrongful Death Statute. We must consider it as it is written, not as we would have it. Only the Legislature has authority to create legal rights and interests. It results that no right of action, such as plaintiffs seek to assert, can be brought until there is legislative authority for it.” 319 S.W.2d at 225.
In 1962, the Court held, “that a viable infant en ventre sa mere suffering injuries may, upon being born alive, prosecute an action against those negligently inflicting such injuries to recover compensation therefor. This being so, it naturally follows from 20-607 T.C.A. that when the child dies from such injuries, the parent of the child may prosecute a suit for such injuries and death.” Shousha v. Matthews Drivurself Service, Inc., 210 Tenn. 384, 392, 358 S.W.2d 471, 476 (1962).
In 1963, the plaintiffs in Durrett v. Owens, 212 Tenn. 614, 371 S.W.2d 433 (1963), urged the Court to overrule Hogan by holding that a viable child is a “person” within the meaning of the Tennessee Wrongful Death Statute, and eliminating the condition of live birth. In refusing to do so, the Court made it clear that in deciding Shou-sha, it adhered to the rationale of Hogan that the statute did not entitle the next of kin of the unborn child to sue. Further, that the Shousha decision was predicated upon recognition of the legal right of a child to begin life unimpaired by physical or mental defects from prenatal injuries, which right matures upon live birth and therefore survives under the statute.
The Wrongful Death Statute has been amended since Durrett v. Owens, supra, was decided. The section of the statute quoted above is exactly the same today as it was when Hogan, Shousha and Durrett were decided.
The legislature is presumed to know the interpretation which courts make of its enactments; the fact that the legislature has not expressed disapproval of a judicial construction of a statute is persuasive evidence of legislative adoption of the judicial construction, especially where the law is amended in other particulars, or where the statute is reenacted without change in the part construed. See Missouri v. Ross, 299 U.S. 72, 57 S.Ct. 60, 81 L.Ed. 46 (1936); Stern v. Miller, 348 So.2d 303 (Fla.1977); Hargrove v. Newsome, 225 Tenn. 462, 470 S.W.2d 348 (1971); Bottomly v. Ford, 117 Mont. 160, 157 P.2d 108 (1945); Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46 (1931); Walling v. Brown, 9 Idaho 740, 76 P. 318 (1904); see also Krohn v. Richardson Merrell, Inc., 219 Tenn. 37, 406 S.W.2d 166 (1966); McKinney v. Hardwick Clothes, Inc., 217 Tenn. 457, 398 S.W.2d 265 (1966).
The Tennessee Legislature’s failure to change the Wrongful Death Statute to provide a right of action for a viable fetus, stillborn, implies approval of the definition of “person” given by this Court in Hogan, Shousha, and Durrett, and gives the [777]*777judicial construction of the statute the effect of legislation.
Changing our construction of the statute at this time would amount to judicial legislation. We noted in Hogan, as follows:
“Where a right of action is dependent upon the provisions of a statute, as in the case at bar, we are not privileged to create such a right under the guise of a liberal interpretation of it. Judicial legislation has long been regarded by the legal profession as unwise, if not dangerous business. It is generally an ill-starred adventure by wilful men.” 319 S.W.2d at 223.
See also Royal Jewelers Co. v. Hake, 185 Tenn. 254, 205 S.W.2d 963 (1947); McBrayer v. Dixie Mercerizing Co., 176 Tenn. 560, 144 S.W.2d 764 (1940).
The minority opinion in the case at bar suggests that the Hogan definition of “person” is based primarily upon the medically unacceptable premise that an unborn child “is a part of its own mother’s physical body.” As we read the opinion, that statement was made in rejection of the conclusion reached by the appellate courts of Minnesota, Illinois, and Mississippi, that life begins at the moment of conception and that the organism, as a matter of law, is a “person” at that stage. Nowhere in the opinion does the Court quarrel with the generally accepted definition of viable fetus. We interpret Hogan as predicated solely on the Court’s opinion that the legislature did not intend to include the unborn, in providing for the survival of a cause of action for wrongful death of a “person”.
The advocates that seek extension of the statute to embrace a viable fetus insist that the “modern thought” of legal, judicial, and other relevant disciplines, is in such accord on the question of when life begins, that it has become illogical, unreasonable, and indefensible not to include a viable fetus within the scope of the word “person”. We do not think it appropriate or necessary to judicially determine when life begins because we are content to hold that the creation of a wrongful death action was properly the business of the legislative branch of government, and the expansion of its benefits to include “viable fetus”, “fetus”, and/or “embryo” is likewise within its exclusive province.
Nevertheless, we think it appropriate to point out, in this opinion, that voices may yet be heard in the land insisting that “person” does not embrace the unborn, at any stage from conception to live birth. The simple truth of that statement may be supported by an examination of the United States Supreme Court opinion in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), where the underlying issue was the constitutionality of the Texas and Georgia abortion statutes.
Relevant here, is the response of the Supreme Court to the assertion by Texas that the “fetus” is a “person” within the scope and meaning of the Fourteenth Amendment. After a brief examination of the many references to “person” in the United States Constitution, the Supreme Court concluded that the use of the word in the instances cited was such that it had no prenatal application. Specifically, as used in the Fourteenth Amendment, the Court was also persuaded that the word “person” was not intended to apply to the unborn. 93 S.Ct. at 729. Later in this opinion, the Court addressed the contention of Texas that the State had a compelling interest in protecting life, from and after conception, as follows:
“We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.
“It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics. It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. It may be taken to represent also [778]*778the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family. As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes ‘viable,’ that is, potentially able to live outside the mother’s womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. The Aristotelian theory of ‘mediate animation,’ that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century, despite opposition to this ‘ensoulment’ theory from those in the Church who would recognize the existence of life from the moment of conception. The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a ‘process’ over time, rather than an event, and by new medical techniques such as menstrual extraction, the ‘morning-after’ pill, implantation of embryos, artificial insemination, and even artificial wombs. “In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive. That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few courts have squarely so held. In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. Such an action, however, would appear to be one to vindicate the parents’ interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem. Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.” [Footnotes omitted] 410 U.S. at 159-162, 93 S.Ct. at 730-731.
The Supreme Court of California, has recently rejected a plaintiff seeking expansion of that State’s Wrongful Death Statute to include within the definition of “person”, a viable fetus. That Court examined the legislative history of the California Statute, and the judicial decisions construing it and observed the equating “fetus” with “person” “would rewrite the statute in the guise of construing it.” Justus v. Atchison, 19 Cal.3d 564, 139 Cal.Rptr. 97, 105, 565 P.2d 122, 130 (1977).
In 1976, the Missouri Supreme Court refused to include an unborn fetus within the definition of “person”, holding that:
“[A] wrongful death action may not be maintained for the death of an unborn child. It is our view that a fetus is not a ‘person’ within the meaning of our wrongful death statute until there has been a live birth. We think the legislature in enacting the original act and subsequent revisions did not intend to create an action for the death of a fetus never born alive. In view of the common law rule that an unborn fetus was not a ‘person’ we think if there had been an inten[779]*779tion to create such an action it would have been specifically so stated.” State ex rel. Hardin v. Sanders, 538 S.W.2d 336, 338-339 (Mo.1976).
Affirmed. Costs are adjudged against Petitioners.
COOPER, C. J., and HARBISON, J., concurring.