Pеtitioners are the parents of a child born alive who died two days later. They alleged that the death resulted from pre
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natal injuries suffered when the mother was involved in a collision between Petitioners’ automobile and a truck allegedly-owned and operated by Respondent. Thе child was alleged to he viable since the mother was advanced to six or seven months pregnancy at the time. Petitioners sued Respondеnt in a negligence action asserting a cause of action for the wrongful death of the child under Articles 4671-4678, Revised Civil Statutes of Texas, 1925, as amended;
1
Petitioners also alleged a cause of action for injuries to the mother and damages to the automobile. The action for wrоngful death was severed by the trial court and Respondent’s exceptions asserting that such did not state a cause of action were sustainеd. The dismissal of this cause was affirmed by the Court of Civil Appeals [
A right of action exists under the Wrongful Death Statute only where the injured party could have maintained аn action for damages had death not ensued. Art. 4672; Jordan supra. So the question is whether this viable infant born alive would have had a cause of action against Respondents had she survived. We hold in the affirmative and so reverse the judgments below and remand the cause.
This Court in
Jordan
upheld the refusal of the triаl court to render judgment upon appropriate jury findings for the reason that “ * * * the law gives to parents no cause of action for the loss of a child which dies as a proximate result of injuries while it is still quick in the womb of its mother, even though such injuries be inflicted by the negligence of the defendant.” The decision, particularly with respect to the absence of duty to the unborn child, was predicated in large measure upon the concept that life begins only after a child has been born and its independent existence established. Respiration and independent circulation — “not to have breathed is not to have lived” — as conditions to an independent life, and to becoming a human being, were emphasized. Priоr thereto, however, this Court in Nelson v. Galveston H. & S. Ry. Co.,
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In
Jordan
this Court said: “We have found no decision * * * holding that damages for prenatal injury may be recovered either by the injured child if it is born and lives or by its beneficiaries in the event of its death from such injury.” Likewise it was said in Lewis v. Steves Sash & Door Co.,
This impressive contemporаry trend is recognized in the three opinions of the intermediate court in this case. Indeed, there can be little originality of reasoning or expression in the light of the exhaustive review of the problem in these opinions, together with that to be found in the cases therein cited and in the substantial literature on the subject. 4 The majority of the Court of Civil Appeals would have re-examined the question had the court not felt bound by the prior dеcision of this court in Jordan. The dissenting opinion of Justice Cadena comprehensively presents the case for recognition of a right of aсtion for prenatal injuries under the facts here presented, and we are in agreement with this opinion. The decision in Jordan is overruled. Chief Justice Bаrrow points out in the majority opinion below, with supporting citations, that some authorities do not recognize a cause of action fоr prenatal injuries unless the fetus is viable at the time of injury, and that other authorities do not do so unless the child is born alive. These questions are not bеfore us and are reserved.
The judgments below are reversed, and this cause is remanded to the trial court for further proceedings in acсordance with this opinion.
Notes
. Article 4671: “ * ⅝ * 1. When an injury causing the death of any person is caused by the wrongful act, neglect, carelessness, unskilfulness, or dеfault of another person, association of persons, joint stock company, corporation or trustee or receiver of any person, corporation, joint stock company, or association of persons, his, its or their agents or servants, such persons, association of persons, joint stock company, corporation, trustee or receiver shall be liable in damages for the injuries causing such death. ⅜ * * ”
Article 4672: “The wrongful act, negligence, carelessness, unskilfulness or default mentioned in the preceding article must be of such character as would, if death had not ensued, have entitled the party injured to maintain an action for such injury.”
Article 4675: “Actions for damage arising from dеath shall be for the sole and exclusive benefit of and may be brought by the surviving husband, wife, children, and parents of the person whose death has been caused or by either of them for the benefit of all. * * * ”
. Keeton, Creative Continuity in the Law of Torts, 75 Harv.L.Rev. 463, 484-85 (1962).
. Prosser, Law of Torts, (3rd Ed. 1964) pp. 355-56; Rhode Island has since overruled its prior decisions, Sylvia v. Gobeille, R.I.,
. See also 2 Harper & James, Torts, § 18.3 (1956); Gordon, The Unborn Plaintiff, 63 Mich.L.Rev. 579 (1965); Stewart, The Case of the Prenatal Injury, 15 Fla. L.Rev. 527 (1963); Del Tufo, Recovery for Prenatal Torts; Actions for Wrongful Death, 15 Rutgers L.Rev. 61 (1960); Morris, Injuries to Infants En Ventre Sa Mere, 58 Cent.L.J. 143 (1904); Kerr, Action by Unborn Infant, 61 Cent.L.J. 364 (1905); Prey, Injuries to Infants En Ventre Sa Mere, 12 St. Louis L.Rev. 85 (1927); White, The. Right of Recovery for Prenatal Injuries, 12 La.L.Rev. 383 (1952);