I 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.
Even 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].)
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.
We 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.
In 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.