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19 Cal. 3d 564

565 P.2d 122

Justus v. Atchison

California Supreme Court

Decided June 8, 1977

California Supreme Court · decided 1977-06-08

Key passage — most relied on by later courts

“In enacting the wrongful death statute, our Legislature probably initially conceived that it was creating a right of recovery unknown to the common law. But from this premise alone, I am unable to divine an affirmative legislative intent to preclude further judicial development. I find nothing in the statute or its history which anticipates and forbids the evolution of recovery for wrongful death into a universally recognized right of common law status. Judicial expansion and refinement of legal concepts characterizes the common law — any legislative intent to foreclose such traditional judicial activity should require positive expression. ... Just as “a statute is not an alien intruder in the house of the common law” (Stone, The Common Law in the United States (1936) 50 Harv.L.Rev. 4, 15), so too the evolving common law should be a welcome guest to domains previously thought statutory.”

quoted by 1 later decision, including Summerfield v. Superior Court, Maricopa Cty.

“We have carefully considered these arguments, each of which finds support in one or more of the out-of-state decisions recognizing a cause of action for the wrongful death of a fetus. They are not all equally convincing, and some are put in serious question by the decisions rejecting this cause of action and by the legal scholars. But we need not enter this debate, less still attempt to settle it. The considerations advanced by plaintiffs 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.”

quoted by 1 later decision, including Castro v. Melchor.

Relies on Moragne v. States Marine Lines, Inc. · 13 Cal. 3d 804 - Nga Li v. Yellow Cab Co. · 19 Cal. 3d 441 - Borer v. American Airlines, Inc.

Good law ✅— No negative treatment on recordhow we know

Decided 1977-06-08

How this case has been cited

Cited by 515 later decisions — most recently August 2021 · most notably 48 Cal. 3d 644 - Thing v. La Chusa (1989), 52 Cal. 3d 65 - Rojo v. Kliger (1990)

12 federal appellate · 12 district · 462 state decisions — followed in 25 states

2350197719801990200020102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

*586TOBRINER, Acting C. J.

¶1I concur in the result reached by the majority opinion and in the reasoning of part II of that opinion. But although I agree with the majority that we should not recognize a new cause of action for the wrongful death of a fetus, a wholly intangible injury to plaintiffs for which any monetary recovery can provide no real compensation (see Borer v. American Airlines (1977) ante, at pp. 446-448 [138 Cal.Rptr. 302, 563 P.2d 858]), I cannot join the reasoning by which the majority reaches that conclusion.

¶2Even if the common law as of 1862 did not recognize a general cause of action for wrongful death, our decision must rest on the common law of 1977. In Moragne v. States Marine Lines (1970) 398 U.S. 375 [26 L.Ed.2d 339, 90 S.Ct. 1772], the United States Supreme Court pointed out that recovery for wrongful death is now authorized by statute in every Anglo-American jurisdiction, and that such a broad legislative policy may serve as a source of common law. (398 U.S. at pp. 389-392 [26 L.Ed.2d at pp. 350-352].)

¶3In enacting the wrongful death statute, our Legislature probably initially conceived that it was creating a right of recovery unknown to the common law. But from this premise alone, I am unable to divine an affirmative legislative intent to preclude further judicial development. I find nothing in the statute or its history which anticipates and forbids the evolution of recovery for wrongful death into a universally recognized right of common law status. Judicial expansion and refinement of legal concepts characterizes the common law—any legislative intent to foreclose such traditional judicial activity should require positive expression.

¶4We said that it was the intention of the Legislature in enacting those provisions of the Civil Code declarative of the common law to announce and formulate existing common law principles with a distinct view toward continuing judicial evolution. {Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 814 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393].) Here we have the converse situation: what was originally thought a statutory right may now serve as a source of common law. Just as “a statute is not an alien intruder in the house of the common law” (Stone, The Common Law in the United States (1936) 50 Harv.L.Rev. 4, 15), so too the evolving common law should be a welcome guest to domains previously thought statutory.

¶5In sum, since this court decided to reject the asserted cause of action for the wrongful death of a fetus—as I believe it should—it must rest that *587decision on reasons of. policy similar to those discussed in Borer v. American Airlines, supra.(19 Cal.3d at pp. 446-448.) It cannot avoid those difficult policy choices by limiting its vision to the terms of Code of Civil Procedure section 377 and ignoring the evolving common law of today.

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