(dissenting).
I respectfully dissent.
The majority opinion correctly observes that a wrongful death action is not a derivative suit and admittedly it is an independent cause of action whereby the heirs seek recovery for the loss of support and companionship of the decedent rather than for decedent’s actual injuries and any resultant pain and suffering.1 However, that is not the sole consideration or analysis necessary to meet the issue presented.
The original Utah wrongful death statute provided that an action could be maintained against one causing the wrongful death of another only if the deceased could have maintained the action had he or she survived.2 Subsequent versions of the statute 3 deleted that particular provision, which led the court to find that rather than being derivative, a wrongful death action is a new action. The majority opinion aptly cites Van Wagoner v. Union Pacific Railroad *107Company,4 but fails to observe that in giving the statute that interpretation, the court was careful to point out in the following language that the rights of the beneficiaries remain contingent upon the rights of the decedent:
. This court is of the opinion the legislature did not intend to change the rules of substantive law and deny the litigants the right to defend on the ground of contributory negligence. For the purposes of this suit, all that Section 104-3-11, U.C.A.1943 [former statute], grants to the heirs is a right to proceed against the wrongdoers subject to the defenses available against the deceased, had he lived and prosecuted the suit.5
Subsequently, in denying a petition for rehearing, the court narrowed its decision somewhat and substituted the following for the last sentence of the above citation: “Under the facts of this case the right to proceed against the wrongdoer is subject to the defense of contributory negligence.”6 The court made this change when its attention was called to the fact that the former language might be construed to be over-broad in deciding issues not involved in that case, i. e. other defenses conceivably available against a decedent. That issue is now squarely before the court and should be properly decided.
The Utah wrongful death statute was interpreted by the Tenth Circuit Court of Appeals to preclude suit by heirs where a deceased person could not have maintained such suit wherein it explained the principle as follows:
. [E]ven though it is a separate and distinct action which arises on the death of the decedent, the foundation of the right of action is the original wrongful injury to the decedent. And it is essential to the maintenance of the action that the wrongful act or default be of such character that the decedent could have maintained an action to recover damages for his injury if death had not ensued. While it is not a derivative action in the ordinary meaning of the term, recovery cannot be had unless the decedent could have recovered damages for his wrongful injury if he had survived. [Cases cited.]7
In light of the foregoing pronouncements, it is evident that all defenses available against the deceased extend to her heirs, including that of interspousal immunity.8
The Utah law is settled that a wife cannot maintain a tort action against her husband or his estate.9 Consequently, at the time of her death, Mrs. Silver had no cause of action and the rights of her heirs cannot be superior to her own. A tortfeasor should not be under two different measures of obligation — one to the injured party and another to her heirs.
If any change is to be made in the law it should be by legislative enactment rather than by judicial fiat.
The trial court’s summary judgment for defendant should be affirmed.
CROCKETT, J., concurs in the views expressed in the dissenting opinion of HALL, J.. See 22 Am.Jur.2d, Death, Sec. 12, 13.
. Chapter 11 (1874) Laws of Territory of Utah 9, II Compiled Laws of Utah, Sec. 2961 (1888) (repealed 1898).
. Present statute is found in U.C.A., 1953, 78-11-7.
. 112 Utah 189, 186 P.2d 293 (1947).
. Id. at 112 Utah 209, at 186 P.2d 304.
. 112 Utah 218, 189 P.2d 701 (1948).
. Francis v. Southern Pac. Co., 162 F.2d 813 (10th Cir. 1947), aff’d 333 U.S. 445, 68 S.Ct. 611, 92 L.Ed. 798 (1948).
. State Farm Mut. Auto. Ins. Co. v. Leary, 168 Mont. 482, 544 P.2d 444 (1975).
. Rubalcava v. Gisseman, 14 Utah 2d 344, 384 P.2d 389 (1963).