dissenting:
Respectfully, I dissent because I believe the Court’s decision in this case is at variance with fundamental legal principles, including constitutional and statutory provisions of this state and with the general tenor of all prior decisions of this Court relating to actions for wrongful death.
“Such parts of the common law, and of the laws of this State as are in force when this article goes into operation, and are not repugnant thereto, shall he and continue the law of the State until altered or repealed by the legislature.” (Italics supplied.) Article VIII, Section 21, Constitution of West Virginia. “The common law of England, so far as it is not repugnant to the principles of the Constitution of this State, shall continue in force within the same, except in those respects wherein it was altered by the general assembly of Virginia before the twentieth day of June, eighteen hundred and sixty-three, or has been, or shall be, altered by the legislature of this State.” (Italics supplied.) Code, 1931, 2-1-1.
By reason of the constitutional and statutory provisions quoted above, the common law is not to be construed as altered or changed by statute unless the legislative intent to do so “be plainly manifested.” Seagraves v. Legg, 147 W.Va. 331, pt. 4 syl., 127 S.E.2d 605. This Court “is sternly and unmistakably enjoined to leave drastic changes in the common law to the legislative branch of the state government.” Cunningham v. The County Court of Wood County, 148 W.Va. 303, 308, 134 S.E.2d 725, 728. The constitutional *448and statutory provisions in question clearly deny to this Court all power or jurisdiction to change the common law. That power, by both constitutional and statutory provisions, is delegated exclusively to the legislature.
Inasmuch as the legislature is given the exclusive power to change the common law, it is important for the Court in this case to be mindful of the additional restriction upon its power, jurisdiction or authority which is embodied in the following language of Article V, Section 1 of the Constitution of West Virginia: “The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; * *
Inasmuch as this case necessarily involves principles which are so basic and fundamental in the governmental structure, I trust that I may be acquitted of a charge of an effort to be dramatic when I refer to the following portion of Article III, Section 20 of the Constitution of West Virginia which, in my opinion, represents an expression of the distilled wisdom of the ages: “Free government and the blessings of liberty can be preserved to any people only by a firm adherence to justice, moderation, temperance, * * *, and by a frequent recurrence to fundamental principles.”
The pertinent portions of the wrongful death statutes of this state are as follows:
“Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, * * (Italics supplied.) Code, 1931, 55-7-5, as amended.
“Every such action shall be brought by and in the name of the personal representative of such *449deceased person who has been, duly appointed * * *, and the amount recovered in every such action shall be recovered by said personal representative and be distributed in accordance herewith. * * *. In every such action the jury may award such damages as they deem fair and just, not exceeding ten thousand dollars, and the ■ amount recovered shall be distributed to the parties and in the proportion provided by law for the distribution of personal estate left by persons dying intestate. * * (Italics supplied.) Code, 1931, 55-7-6, as amended.
The following language from the opinion in Adams v. Grogg, 153 W.Va. 55, 57, 166 S.E.2d 755, 756, dearly discloses the universal rule that the action for wrongful death is wholly a creature of statute and that such an action may be maintained only if authorized by statute:
“ ‘At the common law, there was no right of action for damages for injury occasioned by the death of a person by a wrongful act.’ Such was the language in Swope v. Keystone Coal and Coke Co., 78 W.Va. 517, 89 S.E. 284, reflecting, without question, the principle that a right of action did not survive one’s death at common law, even though such death were caused by a wrongful or tortious act. See Jackson v. Cockill, 149 W.Va. 78, 138 S.E.2d 710; Dunsmore v. Hartman, 140 W.Va. 357, 84 S.E.2d 137; 25A C. J. S., Death, Section 13, the heading of which reads: ‘At common law there is no cause of action for the recovery of damages for the wrongful death of a human being.’
“There being no common law right of action for death by a wrongful act, such action, if maintainable, exists only by the grace of the above quoted statute. To maintain such action the provisions of that statute must be followed. * *
That an action for wrongful death may be maintained only in case of an injury such as would have entitled the injured person to maintain an action for recovery of damages for personal injuries if his death had not ensued, is recognized in Hoover’s Adm’x v. Chesapeake & O. *450Ry. Co., 46 W.Va. 268, 271, 33 S.E. 224, 225, and in the second point of the syllabus and in the body of the opinion in Wright v. Davis, 132 W.Va. 722, 53 S.E.2d 335.
It is unmistakably clear, therefore, from the statute which makes provision for an action for wrongful death, and from this Court’s prior decisions, that the action involved in this case cannot be maintained for the reason there was no “person” who, prior to his death, could have maintained a civil action for recovery of damages for personal injuries sustained by him. Assume that the “viable unborn child” involved in this case had not died until a month after he sustained the personal injuries which are alleged to have been wrongfully caused by the defendants. Could it be asserted with any semblance of justification that, during the one-month interval of time, the “viable unborn child” was a “person” who had a cause of action against the defendants for the personal injuries he had sustained? The obvious, unassailable answer is in the negative. It inevitably follows, therefore, that an action for wrongful death, based wholly on the pertinent statute, cannot be maintained in this case.
I am unable to accept the proposition that a “viable fetus” or a “viable unborn child” is a “person” within the meaning of the pertinent wrongful death statute. It makes no appeal to me to assert that, “biologically speaking” or from a medical viewpoint, the fetus in question was a “person.” We are not concerned with the question from a medical or biological viewpoint. The case presents a question of law and not one of medical concept or of biology. From a legal standpoint, it does not satisfy me to assert that the fetus was a “child” merely because it had advanced to the state of “viability” that would have permitted it, in certain unnatural, unusual circumstances, to leave the womb of the mother and to live apart from her. The fact is that, when the accident occurred, the fetus had no life apart from that of its mother. The fact that, from a biological or medical standpoint, the fetus had reached a state of viability signifies to me only that it had a potential *451of a life independent from that of the mother and therefore a potential, fraught with at least some degree of uncertainty, of being born alive and therefore becoming a “person,” enjoying a life and an existence wholly apart from the mother. It is my impression that it often happens that a “viable” fetus does not have the good fortune to be bom alive and, therefore, to attain a life wholly independent of that of the mother.
I am astounded by the following assertion of the Court in its opinion: “The argument that a cause of action for the wrongful death of a viable unborn child should be created by the Legislature instead of being recognized by the courts is unsound * * *.” The medical or biological concept of a “viable” fetus is, in my opinion, a comparatively recent concept in relation to the date of the enactment of Lord Campbell’s Act and its successors in the various states of this country. Our judicial function in this case is to determine what was the intention of the legislative branches of government, in this state and in Virginia, when our wrongful death statutes were enacted so many years ago. More recent biological or medical concepts of “viability” and comparatively recent court decisions authorizing wrongful death actions to be predicated upon the “wrongful death” of a fetus as a “person” cannot properly be considered in determining the legislative intent involved in the original enactment of statutes in this category.
The Court states in its opinion that the question involved in this case was first considered and decided in an opinion written by Justice Holmes in 1884 in Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 52 Am. Rep. 242. During all the ensuing period of almost a century, the question has been a live one in legal and judical circles with the result that appellate courts throughout the land are now in sharp disagreement. During all that period to the present day, the legislature of this state has not undertaken to resolve the uncertainty by taking the bold, unrealistic step of declaring legislatively that a mere fetus, *452viable or otherwise, is a “person” within the meaning of our wrongful death statute. By a labored judicial pronouncement, in a shocking disregard of judicial functions and prerogatives, this Court has now amended and added to a clear statute which has been in existence since the formation of our state.
While persons skilled in the fields of biology and medicine have developed the concept of “viability” of a fetus, I would be interested in knowing how many of such persons would take the additional step of asserting that a “viable unborn child” is a “person,” whether considered from a medical or biological standpoint or from the standpoint of the common meaning and acceptation of the word “person.” The few physicians with whom I have discussed the question are amazed that any court would regard a “viable unborn child” as a “person.”
Some courts hold that wrongful death statutes are remedial and therefore should be liberally construed. Other courts take the view that such statutes are in derogation of the common law and. hence should be strictly construed. 25A C.J.S., Death, Section 20, page 605; 22 Am. Jur. 2d, Death, Section 6, page 610. I readily concede that the statute should be liberally construed in order to effectuate the remedial and beneficent purpose of providing a remedy for recovery of damages resulting from the death of a “person” which has been caused wrongfully. I believe, however, a strict rule of construction should be applied in relation to the question whether the word “person” when used in the statute applies to a mere fetus or to a “viable unborn child.” This distinction was recognized and applied in Whittlesey v. City of Seattle, 94 Wash. 645, 163 P. 193.
It would needlessly lengthen this opinion to cite court decisions stating the divergent views concerning the question whether an action for wrongful death may be predicated upon prenatal death. Cases of this character are listed in Annot. 15 A.L.R.3d 992; 25A C.J.S., Death, Section 26 (2), page 625.
*453In construing and applying a wrongful death statute essentially identical with the pertinent provisions of Code, 1931, 55-7-5, as amended, the Supreme Court of Virginia, in the recent case of Lawrence, Administrator v. Craven Tire Company, 210 Va. 138, 169 S.E.2d 440, declined to apply the wrongful death statute to a case involving the death of an unborn viable child. In line with reasoning which I have undertaken to express in this dissenting opinion, the Court made the following statement in the opinion in that case:
“We are unwilling to hold that a child en ventre sa mere can maintain a common law action for personal injuries, and it is plain that such a holding would be necessary in order for any right of action to have been transmitted to the present plaintiff.”
For reasons stated in this dissenting opinion, I would affirm the judgment of the Circuit Court of Cabell County.