dissenting:
I believe that I.C. § 32-102 is controlling in this matter and that it precludes a cause of action for the wrongful death of a child not born alive. As the majority recognizes, our statutes pertaining to wrongful death actions are in derogation of the common law rule forbidding such actions, Gavica v. Hanson, 101 Idaho 58, 608 P.2d 861 (1980), and are to be “liberally construed, with a view to effect their objects and to promote justice.” I.C. § 73-102. Nevertheless, it is also the rule that this Court “can neither legislate nor by construction of [a] statute ‘enlarge the words to include ... [that which] is not fairly included in the language of the act.’ ” In re Danpier, 46 Idaho 195, 207, 267 P. 452, 455 (1928). Unfortunately, the majority’s holding goes far beyond the plain language of the applicable statutes.
I.C. § 5-311 creates a cause of action for “the death of a person, not being a person provided in section 5-310, Idaho Code.” I.C. § 5-310 creates a cause of action “for the injury or death of an unmarried minor child.” By virtue of the language of I.C. § 5-311, the unmarried child referred to in I.C. § 5-310 is included within the term “person.” The question of whether the wrongful death statutes are applicable to an unborn child rests first and foremost *576upon how the legislature has defined the word “person,” particularly with reference to an unborn child. I.C. § 32-102 is directly on point. It provides the following:
“A child conceived, but not yet born, is to be deemed an existing person so far as may be necessary for its interests, in the event of its subsequent birth." (Emphasis added.)
Under I.C. § 32-102, an unborn child is to be considered a person during the time pri- or to birth, “in the event of a subsequent birth.” The legislature could very easily have left off the last clause and had I.C. § 32-102 read as follows:
“A child conceived, but not yet born, is to be deemed an existing person so far as may be necessary for its interests.”
If such were the case, there would be no problem in concluding that any unborn child would be included as a person under the wrongful death statutes. The legislature, however, did not enact such a statute, but rather qualified the recognition of an unborn child as a person upon the subsequent birth of that child. Clearly, I.C. § 32-102 precludes a cause of action for the wrongful death of an unborn child.
The majority concludes in its opinion that I.C. § 32-102 is inapplicable because it is found in Title 32 of the Code, which is the domestic relations section. The majority states that I.C. § 32-102 “was enacted to protect the rights and interests of children ‘conceived but not yet born’ during divorce, custody, property settlement and similar types of proceedings.” When I.C. § 32-102 was originally enacted in the revised statutes of Idaho (1887), it was placed by the legislature at that time in the civil code under separate Title 1, entitled “PERSONS,” as appears below:
TITLE I.
PERSONS.
Section
2405. Minors, who are.
2406. Unborn child.
2407. When minor may disaffirm.
2408. Cannot disaffirm contract for necessaries.
2409. Nor certain obligations.
Section
2410. Contracts of persons without understanding.
2411. Contracts with other insane persons.
2412. Powers of persons whose incapacity has been adjudged.
Section 2405. Minors are:
1. Males under twenty-one years of age;
2. Females under eighteen years of age.
Sec. 2406. A child conceived, but not yet born, is to be deemed an existing person so far as may be necessary for its interests, in the event of its subsequent birth.
Our wrongful death statutes predate the original enactment of what is now I.C. § 32-102. See Idaho Terr.Code of Civil Proc., §§ 191, 192 (1881). The code commission apparently many years later compiled that statute under chapter 32, the domestic relations section of the present code. That action of the code commission in subsequently relocating the section under the domestic relations title can hardly be persuasive in determining what the original legislative intent was in enacting § 2406 (now I.C. § 32-102) in 1887.
In that regard, we have a California opinion directly on point, which the majority cites, albeit for another purpose. In Justus v. Atchison, 19 Cal.3d 564, 139 Cal.Rptr. 97, 565 P.2d 122 (1977), the California Supreme Court interpreted an identical statute in conjunction with California’s wrongful death statute (Idaho obviously copied its statute from California). The California Supreme Court held that § 29 of their civil code (which is identical to our I.C. § 32-102) defines a “person” within the meaning of California’s wrongful death statute, which is essentially equivalent to our stat*577ute. The court concluded that regardless of the so-called modern trend of out-of-state decisions, “they are not persuasive when, as here, the cause of action for wrongful death in this state is a pure creature of statute.” 139 Cal.Rptr. 97, 565 P.2d at 127. They then followed the clear provisions of their civil code § 29 (our I.C. § 32-102) and concluded that until a child is born alive, it is not a person for the purpose of California’s wrongful death statute. They pointed to several recent cases with a similar statutory scheme which have arrived at the same conclusion, among others of which is State ex rel. Hardin v. Sanders, 538 S.W.2d 336 (Mo.1976). The trial judge below wrote an excellent opinion recognizing all of the above points and applying the plainly worded provisions of I.C. § 32-102, just as the California Supreme Court did in Justus v. Atchison, supra.
This Court may be, unwittingly, opening another Pandora’s box similar to that wrought by our Rogers v. Yellowstone Park Company case, 97 Idaho 14, 539 P.2d 566 (1975). In that case this Court abolished the defense of spousal immunity. By today’s decision, when combined with the Rogers decision, the husband can not only sue the defendant Baldazo for the alleged wrongful death of his unborn child, but he may also sue his own wife if she was also negligent in the accident which resulted in her miscarriage. The defendants assert that the accident was caused solely by Mrs. Volk’s negligence.
Today’s decision opens the door for suits by the .husband against the wife when she negligently causes herself to miscarry, whether in an automobile wreck or otherwise. In fact, it may very well authorize a husband to sue his own wife if she submits to an abortion.
Today’s decision may seem like a small step, but, like Pandora’s box once opened, it is difficult to envision all of the mischief which may ultimately emerge.
I dissent.