dissenting.
Tortfeasors take heart. Today this court grants you absolution — provided, of course, that you inflict only mortal wounds. Treating our century-old statute of limitations for wrongful death like some Strasbourg goose, the court’s opinion crams it full of fictional legislative intent, and then ties to it the baggage of ancient English common law which a number of American courts, including the United States Supreme Court, have rejected as totally lacking in logical or historical justification. In this process, the opinion conveniently ignores or superficially distinguishes opinions from this court. Because I cannot join in this broad grant of a license to kill, I dissent.
Today’s decision is irreconcilable with Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984), in which this court held unconstitutional a similar “absolute” statute of limitations. Justice Spears, writing for the majority, condemned that statute in no uncertain terms, stating:
The limitation period of [the medical malpractice statute], if applied as written, would require the Nelsons to do the impossible — to sue before they had any reason to know they should sue. Such a result is rightly described as “shocking” and is so absurd and so unjust that it ought not to be possible. Hays v. Hall, 488 S.W.2d 412, 414 (Tex.1972); Gaddis v. Smith, 417 S.W.2d 577, 580, 581 (Tex.1967).
678 S.W.2d at 923 (emphasis supplied). Yet today’s decision reaches such an equally shocking and unjust result. The. limited facts of this case, certified to this court by the Fifth Circuit, are no less compelling than those in Nelson. The Morenos and the Sloans both had infant children who died of Reye’s Syndrome after being administered doses of Bayer’s Childrens Chewable Aspirin, manufactured by Sterling Drug, Inc. After the death of the infants, the parents were informed that the use of aspirin sometimes contributed to Reye’s Syndrome. The only real difference between this case and Nelson is that here the injured parties had the bad luck to die.1 *359The court’s opinion thus provides a perverse incentive for a tortfeasor to kill rather than merely maim.
The asserted rationale to support this untenable result is two-fold. First, the court examines the “plain meaning” of the “unambiguous” limitations statute and concludes that the legislature has intentionally foreclosed application of the discovery rule. This approach directly conflicts with the instruction given to us in the Code Construction Act that “whether or not the statute is considered ambiguous on its face," we must consider both the object sought to be obtained and the consequences of a particular construction. Tex. Gov’t Code Ann. § 311.023 (Vernon 1988) (emphasis supplied).2 We are further mandated that in construing this enactment “a just and reasonable result is intended.” Id. § 311.021; see also Witty v. American General Capital Distributors, Inc., 727 S.W.2d 503, 504 (Tex.1987) (the Texas “wrongful death statute is remedial in nature and must be liberally construed .. .”).3 As conceded in Nelson, what the court has achieved in foreclosing the discovery rule is the converse — a totally unjust and unreasonable result. The parents are permanently denied an opportunity to have their claims for the infants’ deaths considered on the merits. The court twists the statute to achieve an artificial, but complete bar to these families recovering by requiring that they bring a cause of action before they could reasonably have discovered its existence.
Any careful analysis of the legislative intent and history of Section 16.003(b) contradicts the court’s conclusion. An action for wrongful death has been tied to the date of death since the first passage of a death act in Texas and has survived in virtually identical form to this date.4 Given this background, the legislature cannot be charged with the intent to abolish the discovery rule in wrongful death actions. *360It was not until 1967 that this court recognized the application of the discovery rule in an action for personal injuries. Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967). While the 1879 Texas Legislature no doubt had its strong points, it cannot be said that it was sufficiently foresighted to have as its objective the abolition of a doctrine that did not exist in either name or substance until almost a century later.5
This court examined the applicable legislative purpose many years ago in De Harn v. Mexican National Ry., 86 Tex. 68, 70, 23 S.W. 381, 381-82 (1893):
The reason of the provision is obvious. Since no cause of action could be brought by the relatives of the injured person until death had ensued, and since a great length of time might elapse between the injury and the death, it is reasonable that the time of the death should be taken as the point from which limitation should begin to run.
The court completely misapplies this case. The question is not whether De Ham deals with the issue of the application of the discovery rule — as stated above, it could not. The issue is rather to determine the general legislative intent in setting the date of death as the commencement point for the running of limitations. As De Ham states in unmistakable terms, that purpose was solely to protect the beneficiaries of one who lingered after receiving a lethal injury; the statute is designed to preserve, not to destroy, a cause of action. The result reached by today’s opinion stands in clear contradiction of this legislative objective.
As evidenced by previous decisions of this court, labelling a statute of limitations “absolute” does not, as the opinion asserts, make it impenetrable to tolling principles. For example, in Borderlon v. Peck, 661 S.W.2d 907 (Tex.1983), we tolled an “absolute” statute of limitations on the basis of the common-law doctrine of fraudulent concealment. That doctrine has been held applicable by this court to toll the statute of limitations in actions for wrongful death. Texas & P. Ry. v. Gay, 86 Tex. 571, 576, 26 S.W. 599, 614 (Tex.1894).6
As a review of the cases cited by the court evidences, tolling of limitations to permit discovery is the rule rather than the exception. See, e.g., Willis v. Maverick, 760 S.W.2d 642 (Tex.1988) (discovery rule applicable in legal malpractice action); Weaver v. Witt, 561 S.W.2d 792 (Tex.1977) (medical malpractice); Kelley v. Rinkle, 532 S.W.2d 947 (Tex.1976) (action for libel of credit reputation). These cases are not limited, as the court’s opinion concludes, to tolling limitations until the fact of the injury is known. In Willis, we held that:
[T]he statute of limitations for legal malpractice does not begin to run until the claimant discovers or should have discovered through the exercise of reasonable care and diligence the facts establishing the elements of his cause of action.
760 S.W.2d at 646 (emphasis supplied).7 Knowledge of Petitioners’ causes of action was not complete upon discovery of the injury (i.e., death) as the opinion suggests; *361the element of the causative link between the use of aspirin and Reye’s Syndrome was equally critical.8
Rather than following the great weight of our own precedent, the court instead relies on two cases in which the court refused to apply the discovery rule. Yet in those cases, unlike here, the legislature had taken more than ample steps to bar application of the rule. In the first of these two cases construing the “absolute” statute of limitations applicable to health care liability claims, this court had before it abundant materials reflecting the legislative intent underlying the Medical Liability and Insurance Improvement Act. Morrison v. Chan, 699 S.W.2d 205, 208 (Tex.1985). At the time that limitation provision was passed, the discovery rule was well known to the Texas Legislature. A key legislative objective was to: “reduce excessive frequency and severity of health care liability claims,” Tex.Rev.Civ.Stat.Ann. art. 4590i, §§ 1.02(a)(5) and 1.02(b)(1) (Vernon Supp.1989). As evidenced by De Ham, supra, the objective in defining the accrual date for wrongful death as the date of death was to expand and not to contract the cause of action. Unlike the statute applicable to actions for wrongful death, the health care liability limitation provision makes no reference to an “accrual” of a cause of action and disclaims the effect of other laws that would toll the time period for bringing suits, including for minority and other disabilities. The limitations statute for wrongful death is markedly different in this regard; that statute is subject to tolling for minority and other disabilities. Tex.Civ.Prac. & Rem.Code Ann. § 16.001 (Vernon 1986 & Supp.1990).
The other cited case, Safeway Stores, Inc. v. Certainteed Corp., 710 S.W.2d 544 (Tex.1986), is even more persuasive authority to construe the statute before us to permit application of the discovery rule. The issue presented in that case was whether the statute of limitations for breach of warranty ran from the date of the breach or that of discovery. The statute sets the date of accrual and explicitly disclaims the applicability of the discovery rule, providing that a “cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach.” Tex.Bus. & Comm.Code Ann. § 2.725 (Vernon 1968) (emphasis supplied). Thus, in adopting Section 2.725, the legislature determined that more was needed to bar the discovery rule than just referring to the date of accrual; that rule needed to be expressly disclaimed. This statute demonstrates an appropriate way to preclude application of the discovery rule. The court ignores the fact that the legislature is quite capable of expressly disclaiming the discovery rule but has not done so in the context of wrongful death.
To support its improbable position the court resorts to case law from other jurisdictions which have little comparability to the Texas statute. Most if not all of these cases appear to involve a limitations provision contained within the wrongful death statute itself and not one, like ours, that is part of a general limitations statute. The courts thus viewed the limitations as a condition upon the right, not merely the remedy, subject to strict construction in derogation of the common law. No such interpretation is applicable in this state. Because the Texas statutes concerning wrongful death and limitations are separate, the latter is procedural rather than a substantive qualification or condition restricting the right to bring an action for death. Franco v. Allstate Ins. Co., 505 S.W.2d 789, 792-93 (Tex.1974).
An approach far superior to that taken by today’s opinion is contained in Hanebuth v. Bell Helicopter International, 694 P.2d 143, 144 (Alaska 1984). In consider*362ing a requirement that a wrongful death action be “commenced within two years after the death,” that court’s considerations tracked the same concerns delineated under Texas law. Echoing Nelson, the Alaskan court applied the discovery rule to comport with principles of “fundamental fairness,” to be “consistent with the purposes of the act,” and to avoid “unjust and absurd results.” 694 P.2d at 146. The court said it was “profoundly unfair to deprive a litigant of his right to bring a lawsuit before he has any reasonable opportunity to do so.” Id. at 147. Further, “a tortfeasor whose conduct has been so grievous as to cause death would be exonerated, while another tortfeasor, guilty of the same conduct except for the fortuity that it merely caused injury, would be held responsible.” Id.9 The reasoning of today’s opinion in rejecting Hanebuth is insightful. One who is only maimed, we are told at note 5, may be “in need of time to recover before beginning an investigation.” Why shouldn’t parents whose child has been wrongfully taken from them be in need of time to recover and discover as well? Solely because an insensitive court refuses Texas families that right.
The statute before us for interpretation contains only two sentences:
A person must bring suit not later than two years after the day the cause of action accrues for injury resulting in death. The cause of action accrues on the death of the injured person.
Tex.Civ.Prac. & Rem.Code Ann. § 16.003(b) (1986). In today’s opinion, the court determines from the “plain language” of this minimal statute that the legislature intended to bar the yet-to-be-judicially-created discovery rule even though this statute permits tolling under exceptions not just grounded in, statute, such as for minors, but also those judicially-created, such as for fraudulent concealment. I cannot con-ear in such a complete manipulation of legislative intent.
The second asserted basis for the decision today is its refusal to extend constitutional protection to a cause of action for wrongful death which it conveniently pigeonholes as “wholly statutory.” Because it is claimed that the “open courts” provision of article I, section 13 of the Texas Constitution protects only common-law causes of action, the court concludes that it is powerless to review a restriction on the exercise of a statutory wrongful death action. This conclusion is based on two flawed assumptions.
First, the distinction between common law and statutory causes of action for purposes of review under the “open courts” provision is more honored in the breach than the observance. LeCroy v. Hanlon, 713 S.W.2d 335 (Tex.1986), authored by Justice Spears, is a prime example. There this court struck as unconstitutional under the “open courts” provision a filing fee that went to state general revenues. The effect of the fee with respect to the individual plaintiff in that case was to bar his filing of suit under the Texas Deceptive Trade Practices Act and the Texas Insurance Code, i.e., wholly statutory causes of action. 713 S.W.2d at 336. For reasons indiscernible, the court in LeCroy was not troubled by today’s controlling distinction between common law and statutory causes of action. Yet the failure to apply the discovery rule so as to prohibit completely a family’s exercise of its legal rights closes the door to the Texas courts far more permanently than charging the extra forty dollar filing fee rejected in LeCroy. The constitutional guarantee that “[a]ll courts shall be open” to “every person” is a hollow one to families like the Morenos and the Sloans.
Second, this injustice cannot simply be defined away by claiming a wrongful death action is “wholly statutory.” While a *363wrongful death action may have once been considered a creature of statute, it has evolved into a complex hybrid — part constitutional, part statutory and part judicially-developed common law. An early decision of this court recognized the multi-faceted nature of a wrongful death action. While noting the statutory nature of the action, this court nonetheless stated:
In our own state, this right of action is wisely recognized by the organic law, supplemented by guarded legislative provisions enacted for the purposes of securing to the beneficiaries just compensation in a case meriting it....
Nelson v. Galveston, H. & S.A. Ry., 78 Tex. 621, 624, 14 S.W. 1021, 1022 (1890) (emphasis supplied).10
Even the most cursory examination of the history of the Texas Wrongful Death Act reveals its tripartite nature. As first adopted in Texas in 1860, the statute was a mere four paragraphs in length, setting out the beneficiaries, the potential defendants (basically providers of public transport) and the basis of the cause of action (negligence or carelessness), permitting the recovery of damages and requiring suit to be brought within one year after death. Law of February 2, 1860, ch. 35, 1860 Tex.Gen.Laws 32. While the statute has been amended several times over the last 129 years, primarily to expand the class of potential defendants and to permit recovery of exemplary damages, it remains a “bare bones” enactment. Over that lengthy time period, many interstices of the statute have been left to the courts to fill, relying on common-law concepts.11 In fact, writing for the court in Sanchez v. Schindler, 651 S.W.2d 249, 252 (Tex.1983), Justice Spears indicated a strong preference for this judicial development of the wrongful death statute. Because of the symbiotic relationship between the common law and statute, an action for wrongful death merits review under the “open courts” provision of article I, section 13 of the Texas Constitution. Labelling this action "statutory” rather than engaging in thoughtful analysis provides a convenient escape mechanism from the Houdini-defying task of reconciling this opinion with Nelson v. Krusen.
A cause of action for wrongful death is also in part constitutionally given. As initially adopted, the Texas Wrongful Death Act made no provision for exemplary damages. To correct this omission, the Texas Constitution of 1869 included a provision permitting recovery of exemplary damages for “homicide, through wilful act, or omission.” Tex.Const. art. XVI, § 26, interp. commentary (Vernon 1955). The provision was amended in 1879 to expand the grounds for recovery to include “gross neglect.” Id.; see also Demarest, The History of Punitive Damages in Texas, 28 S.Tex.L.J. 535, 540 (1987).
This constitutional right may not be legislatively abolished or restricted. In Morton Salt Co. v. Wells, 123 Tex. 151, 70 *364S.W.2d 409, 410 (1934), the issue presented was whether the plaintiffs in a death action covered by the worker’s compensation statute were first required to present a claim for exemplary damages to the Industrial Accident Board prior to recovery in court. This court stated:
We agree with the Court of Civil Appeals that the district court had original jurisdiction, without the presentation of the claim for exemplary damages to the Industrial Accident Board. The cause of action here asserted is one given by the Constitution, and the Legislature was without power to add to or take from the conditions under which, by virtue of the Constitution, it could be maintained, nor did it attempt to do so.
70 S.W.2d at 410. A similar unconditional analysis was employed in Hanks v. City of Port Arthur, 121 Tex. 202, 48 S.W.2d 944 (1932), a case cited with frequency in today’s opinion. Port Arthur’s attempt to preclude liability through its municipal charter by requiring it be notified of a defective condition prior to the occurrence of an injury was held unconstitutional under both the “open courts” provision, article I, section 13 of the Texas Constitution, and article I, section 17, guaranteeing just compensation for a taking of property for public use. 121 Tex. at 206, 48 S.W.2d at 945. In examining the question of whether the charter could condition the constitutional right to bring suit for compensation, this court stated:
The Constitution admits of no such limitation.
When a city violates the Constitution to the damage or injury of a complaining party, a constitutional cause of action arises, and the Legislature is powerless to make provision for a notice of the type here involved. The Constitution, sec. 17, art. 1, having fixed the method by which a city may take or damage private property without liability for tort, the constitutional method is exclusive, and the Legislature is without power to prescribe any other method to accomplish the same purpose.
121 Tex. at 208, 48 S.W.2d at 946 (emphasis supplied). The court is content to ignore this well-entrenched principle of constitutional law.12
An exercise in somnambulism, today’s opinion merely sleepwalks through the law, reciting the rule that there was no cause of action for death at common law but not engaging in conscious thought. Of the five cases cited as authority for the proposition that there was no action for death at common law, not one of them engages in any in-depth analysis. Only two reference the rule’s origin as dictum in Lord Ellenborough’s decision in Baker v. Bolton in England in 1808. Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 184 n. 4 (Tex.1968); Galveston, H. & S.A. Ry. v. Le Gierse, 51 Tex. 189, 198-99 (1879). One commentator has described the rule as “a magical intoned incantation recited by rote,” followed by courts without analysis of the validity of its historical origins or current applicability. S. Speiser, Recovery for Wrongful Death 2d §§ 1:1 and 1:5 (1975). That criticism accurately describes today’s opinion and the precedent it cites.
A hard look at this common-law prohibition reveals that it lacks any rational basis and should not be blindly followed by this court. The Baker v. Bolton case was a nisi prius case (i.e., a case tried in the local court before a single judge rather than en banc in the superior court at Westminster) without authority or supporting reasoning for its statement that the common law barred redress for a fatal injury. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 382-83, 90 S.Ct. 1772, 1778-79, 26 L.Ed.2d *365339 (1970).13 Contrary to the importance it later achieved, the decision in Baker v. Bolton went unnoticed by the English courts until 1873.14 See Malone, TKe Genesis of Wrongful Death, 17 Stan.L.Rev. 1043, 1059 (1965). In fact, the first court anywhere to treat it as precedent was an American one, Carey v. Berkshire R.R., 55 Mass. (1 Cush.) 475, 48 Am.Dec. 616 (1848), some 40 years after Baker v. Bolton was decided.15 During that interval, there was no reported opinion denying a wrongful death claim in this country, while several early decisions expressly recognized such a common-law action. Malone, The Genesis of Wrongful Death, supra, at 1066-67; Crofs v. Guthery, 2 Root 90, 1 Am.Dec. 61 (Conn.1794); Ford v. Monroe, 20 Wend. 210 (N.Y.Sup.Ct.1838); James v. Christy, 18 Mo. 162 (1853).
This historical timeline suggests that the English common-law prohibition was never truly part of the common law of Texas. In 1840, the Congress of the Republic of Texas enacted a law which adopted the common law of England to the extent consistent with the Constitution and laws of this state. This law has been interpreted by this court to mean the common law of England as “declared by the courts of the different states of the United States.” Grigsby v. Reib, 105 Tex. 597, 600, 153 S.W. 1124, 1125 (1913) (emphasis supplied). As discussed above, in 1840 the American courts recognized a common-law action for wrongful death.
Building on virtually universal commentary critical of the English common-law rule barring actions for wrongful death16 and the questionable historical basis for the rule’s adoption, the United States Supreme Court in the landmark Moragne decision recognized a common law action for wrongful death in maritime cases. Writing for the unanimous court, Justice Harlan engaged in a scholarly examination of the three asserted justifications of the common law prohibition and soundly rejected them all. The first, deemed the “sole substantial basis,” is the felony-merger doctrine:
According to this doctrine, the common law did not allow civil recovery for an act that constituted both a tort and a felony. The tort was treated as less important than the offense against the Crown, and was merged into, or pre-empted by, the felony. The doctrine found practical justification in the fact that the punishment for the felony was the death of the felon and the forfeiture of his property to the Crown; thus, after the crime had been punished, nothing remained of the felon or his property on which to base a civil action.
*366Moragne, 398 U.S. at 381, 90 S.Ct. at 1778 (citations omitted); see also Le Gierse, 51 Tex. at 198-99. The Moragne opinion rejected the applicability of this historical justification in the United States, noting that American law never recognized forfeiture of property as felony punishment. Moragne, 398 U.S. at 384, 90 S.Ct. at 1779. Texas law is in accord; the early laws of the Republic of Texas do not appear to recognize forfeiture, and this sanction was expressly barred by the Texas Constitution of 1876. Tex. Const, art. I, § 21.
The second basis for the rule reviewed in Moragne is the asserted difficulty of computing damages because of a “repugnance ... to setting a price upon human life.” Moragne, 398 U.S. at 385, 90 S.Ct. at 1779 (citations omitted). Recognizing that damages are regularly determined in statutory wrongful death actions and such calculation poses no greater difficulty than awarding damages for nonfatal injuries, the Court found this basis of the rule unpersuasive. The third basis is the ancient common-law rule that a personal cause of action did not survive the death of its possessor. The Court noted that rule applies only to the victim’s personal claims and has no bearing on whether a dependent should be permitted recovery for the injury he suffers because of the victim’s death. Id. at 385, 90 S.Ct. at 1779. The Court then concluded that:
The American courts never made the inquiry whether this particular English rule, bitterly criticized in England, “was applicable to their situation,” and it is difficult to imagine on what basis they might have concluded that it was.
Id. at 386, 90 S.Ct. at 1780.17
The Moragne decision noted the prevalence of statutes permitting recovery for wrongful death, adopted in all fifty states and by numerous federal statutes, and concluded:
These numerous and broadly applicable statutes, taken as a whole, make it clear that there is no present public policy against allowing recovery for wrongful death. The statutes evidence a wide rejection by the legislatures of whatever justifications may have once existed for a general refusal to allow such recovery. ... The policy thus established has become itself a part of our law, to be given its appropriate weight not only in matters of statutory construction but also those of decisional law.
398 U.S. at 390-91, 90 S.Ct. at 1782.18 Although this analysis in Moragne was employed in an opinion by Justice Spears to justify extending comparative causation to a products liability action, Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 427 (Tex.1984), today Moragne is curiously limited to its facts.
The facts of the case before us differ vastly from the stagecoach and railway accidents for which, over a century ago, the scope of the wrongful death statute was originally envisioned. We are in an age of more insidious, less obvious causes of death, many of which are simply not discoverable within the two-year limitations period. Thus, not simply the occasional family, but an entire class of families mil be deprived of their claims by the court’s decision. This deprivation cannot be justified on the traditional ground that these victims “slept on their rights,” because they could not have been aware of the basis of their cause of action until after their claims were barred. The opinion thus defies the very purpose of the discovery rule — to prevent legislation from merely affording “a delusive remedy.” Urie v. Thompson, 337 U.S. 163, 169, 69 S.Ct. 1018, 1024, 93 L.Ed. 1282 (1949).
*367The court’s opinion can rightly be recorded as one of the most anti-family decisions in recent memory. It says to a wife who has lost a husband, to a child who has lost its parents, to the parents whose lives have been tom apart by the death of a child, your rights are denied; the merits of your claim against a hidden killer will never be considered by a Texas judge and jury.19
The goose is fattened and the table set, compliments of today’s opinion. Pull up a chair, tortfeasors, and dine on paté de foie gras. You have been absolved from the infliction of lethal wounds, at least in the forum of the Texas courts. I dissent.
RAY and MAUZY, JJ., join in this dissent.
. Relying upon facts taken from the summary judgment record of the federal district court, rather than those certified by the Fifth Circuit, the court asserts at footnote 6 that even if the discovery rule were applied, the Petitioners’ wrongful death actions would still be barred by limitations. If that analysis were correct, the proper disposition of this case would be to return the certified questions to the Fifth Circuit unanswered. Further, the court ignores an affidavit stating that, although the ability to bring suit for medical malpractice against the doctors and the hospitals treating the infant children was investigated and found wanting, no investigation of the possibility of a link between the use of aspirin and Reye’s Syndrome (which would serve as a basis of a products liability action) was made at that time. Moreno Record 284-85; Sloan Record 62-63. The facts of this case Eire not similar to those in United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), as the opinion states. In Kubrick, the Court held that the statute of limitations began to run when the plaintiff had knowledge of the injury and its causative link to use of a particular drug.
. The opinion cites RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex.1985), for the proposition that rules of statutory construction may not be applied when a statute is unambiguous. That case stands in clear conflict with the dictates of the Code Construction Act, quoted above. Interkal, however, involved interpretation of a statute and not a code provision to which the Code Construction Act is applicable. 691 S.W.2d at 607 n. 1. Nor did the court in Cail v. Service Motors, Inc., 660 S.W.2d 814 (Tex.1983), consider the effect of the Code Construction Act.
. Further, "[t]his court has always endeavored to interpret the laws of Texas to avoid inequity.” Sanchez v. Schindler, 651 S.W.2d 249, 252 (Tex.1983) (opinion construing Wrongful Death Act by Spears, J.).
. That act provided: “The action shall be brought within one year after the death of the deceased.” Law of February 2, 1860, ch. 35, § 3, 1860 Tex.Gen.Laws 33. The limitations provision was subsequently moved from the wrongful death act to be included as part of a general limitations statute. Tex.Rev.Civ.Stat. Ann. art. 3202 (Vernon 1879) provided: “There shall be commenced and prosecuted within one year after the cause of action shall have accrued ...: 4. Actions for injuries done to the person of another where death ensued from such injuries: and the cause of action shall be considered as having accrued at the death of the party injured.” See also Tex.Rev.Civ.Stat.Ann. art. 3353 (same language). The time for bringing an action for death was later expanded to two years. Law of March 4, 1897, ch. 14, § 1, 1897 Tex.Gen.Laws 12. Other than replacing the plural "injuries" with the singular "injury,” the accrual language was unchanged. The statute was amended in 1979 to delete the two-year limitations period for actions for debts and accounts, but the limitations provision for a wrongful death action was not changed. Act of June 13, 1979, ch. 716, § 1, 1979 Tex.Gen.Laws 1768-69; see also Tex.Rev.Civ.Stat.Ann. art. 5526 (Vernon 1958) (repealed 1985). The statute was repealed and codified, with no substantive change intended, as part of the Texas Civil Practice and Remedies Code. Act of June 16, 1985, ch. 959, §§ 1 (new provision), 9 (repealer), and 10 (no substantive change intended).
The court asserts that this reenactment and codification after the decision of Stiles v. Union Carbide Corp., 520 F.Supp. 865 (S.D.Tex.1981), refusing to apply the discovery rule in a wrongful death action, worked a legislative adoption of that interpretation. While the legislature may indeed adopt a judicial interpretation by reenacting a statute, see Robinson v. Central Texas MHMR Center, 780 S.W.2d 169, 170-71 (Tex.1989), that interpretation must be by a court of last resort. See Texas Employer’s Ins. Ass’n v. Lightfoot, 139 Tex. 304, 162 S.W.2d 929 (1942). Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 51 (1931), cited in the opinion refers to an “interpretation which has been settled by the courts." The fact that this question has been certified to this court by the Fifth Circuit indicates that there is no well-settled interpretation by the Texas courts.
. This situation is fundamentally different from that presented to the court today in Dow Chemical Co. v. Alfaro, 786 S.W.2d 674 (Tex.1990). Unlike the discovery rule, the concept underlying the doctrine of forum non conveniens was in existence and being applied on the date the statute was enacted. That this old concept later acquired a new label — “forum non conveniens” —did not affect the original legislative action in abolishing it.
. The court miscomprehends this argument. The question is not whether the doctrine of fraudulent concealment applies to the facts of this case. Rather, the question is whether statutes of limitations labelled “absolute” are subject to common-law tolling principles such as the doctrine of fraudulent concealment and the discovery rule. Our decisions in Borderlon and Gay indicate that they are.
.See also Gaddis v. Smith, 417 S.W.2d 577, 581 (Tex.1967) (discovery of the "wrongful act" triggers limitations): Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex.1985) (discovery of the "wrong”). The cases cited in the court’s opinion addressed factual situations where the plaintiff was aware of both the injury and its cause. See, e.g., Coody v. A.H. Robins Co., 696 S.W.2d 154, 156 (Tex.App.—San Antonio 1985, no writ) (stating that plaintiff learned of injury and its cause simultaneously); Otis v. Scientific Atlanta, Inc., 612 S.W.2d 665, 666 (Tex.Civ.App.—Dallas 1981, writ refd n.r.e.) (plaintiffs do not assert that they did not know the cause of their injury).
. In Willis, we concluded that "any burden placed upon an attorney by application of the discovery rule is less onerous than the injustice of denying relief to unknowing victims.” 760 S.W.2d at 646. Yet the injury worked in that case was much less severe than the deaths that occurred here allegedly due to distributing a dangerous pharmaceutical product to the Texas public. Surely the burden placed upon the drug manufacturer is equally less onerous than the injustice of denying relief to unknowing families, like the Morenos and the Sloans, whose children have died.
. A similar result has been reached as to an Illinois statute requiring that actions be commenced within two years after death. See Eisenmann v. Cantor Brothers, Inc., 567 F.Supp. 1347 (N.D.Ill.1983) (to deny application of discovery rule would produce absurd result): Matter of Johns-Manville Asbestosis Cases, 511 F.Supp. 1235 (N.D.Ill.1981); Fure v. Sherman Hospital, 64 Ill.App.3d 259, 21 Ill.Dec. 50, 380 N.E.2d 1376 (1978); Praznik v. Sport Aero, Inc., 42 Ill.App.3d 330, 355 N.E.2d 686 (1976).
. A number of our sister states have recognized this hybridization to permit application of common-law principles in a wrongful death action. See, e.g., Summerfield v. Superior Court, 144 Ariz. 467, 698 P.2d 712, 718 (1985) (en banc) (the wrongful death "statute and precedent have combined to produce a cause of action with common law attributes"); Hanebuth v. Bell Helicopter Int'l, 694 P.2d 143, 146 (Alaska 1984) (wrongful death statute treated like other common law tort actions, finding discovery rule applies to "absolute” statute of limitations); O’Grady v. Brown, 654 S.W.2d 904, 908, 911 (Mo.1983) (en banc) (wrongful death statute “mends the fabric of the common law” and incorporates common law principles); Haakanson v. Wakefield Seafoods, Inc., 600 P.2d 1087, 1091-92 (Alaska 1979) (no legislative intent to treat wrongful death action different from other common law tort actions, thus limitations statute tolled for minors); Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222, 229-30 (1972) (declaring existence of common-law wrongful death action and tolling limitations provision for minors). See also Restatement (Second) of Torts § 925 comment k (1979) (noting trend to "allow ameliorating common-law principles to apply” to wrongful death actions).
. See, e.g., Clifton v. Southern Pacific Transp. Co., 709 S.W.2d 636, 640 (Tex.1986) (gross negligence standard of Burk Royalty applied to wrongful death action); Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 632-33 (Tex.1986) (loss of inheritance damages recoverable in wrongful death action); Sanchez v. Schindler, 651 S.W.2d 249, 252-54 (Tex.1983) (damages for loss of society and mental anguish recoverable). See generally Tex.Civ.Prac. & Rem.Code Ann. §§ 71.-001-011 (Vernon 1986 and 1989 Supp.) (extensive annotations).
. The majority dismisses the problem of a conflict with the constitutional right to exemplary damages in a wrongful death action on the grounds that no such damages are allowed to a parent for the death of a child. A similar argument in Hanks was found unpersuasive:
It is true that in the case before us the question of taking property in violation of the Constitution is not in issue, but the validity of the charter section may be raised, and, if void for any reason, it cannot be enforced in this case.
121 Tex. at 208-09, 48 S.W.2d at 947.
. One commentator has pointed out that Baker v. Bolton was not extensively argued, that the reported opinion is very brief and that the controversial rule was “laid down without either sustaining reasoning or supporting authority.” S. Speiser, Recovery for Wrongful Death 2d § 1:2 (1975); see also Smedley, Wrongful Death — Bases of the Common Law Rule, 13 Vand.L.Rev. 605 (1960) (concluding the case was wrongly decided as well as overbroad). Even Dean Prosser has condemned the trial judge in Baker v. Bolton, stating that Lord Ellen-borough’s "forte was never common sense.” W. Prosser, Law of Torts § 127 (4th ed. 1971).
. This rule never even made it as far as Scotland; that country recognized a common-law action for wrongful death. Moragne, supra, 398 U.S. at 398 n. 13, 90 S.Ct. at 1786 n. 13.
. The Carey case was subsequently overruled by the Massachusetts Supreme Court in Gau-dette v. Webb, 362 Mass. 60, 284 N.E.2d 222, 229 (1972).
.The common-law prohibition against maintaining an action for wrongful death has been universally denounced by commentators as having no logical or historical basis and as unfairly differentiating between wrongful conduct resulting in mere injury and that resulting in death. See, e.g., F. Pollock, Law of Torts 55 (Landon ed. 1951) (terming rule “barbarous”); Smedley, Wrongful Death — Bases of the Common Law Rules, 13 Vand.L.Rev. 605 (1960) (rule has outlived its usefulness); Holdsworth, The Origin Of the Rule in Baker v. Bolton, 12 Law Q.Rev. 431, 437 (1916) (rule cannot be justified on precedential or technical grounds); F. Tiffany, Death by Wrongful Act § 12 (2d ed. 1913) (“[n]o satisfactory reason for the rule has ever been suggested”); P. Keeton, Prosser and Keeton on Torts § 125 (5th ed. 1984) (criticizing rule on basis that "it was cheaper to kill a person than to injure him”).
. The compelling logic of Moragne has given rise to state court cases that recognize in some manner a common law action for wrongful death. See, e.g., Haakanson v. Wakefield Seafoods, Inc., 600 P.2d 1087, 1092, n. 11 (Alaska 1979); Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222, 229 (1972); see also Restatement (Second) of Torts § 925 comment k (1979).
. Accord Pound, Comments on Recent Important Admiralty Cases, 13 NACCA L.J. 188-89 (1954) ("[tjoday we should be thinking of the death statutes as part of the general law"); Panama Railroad Co. v. Rock, 266 U.S. 209, 216, 45 S.Ct. 58, 60, 69 L.Ed. 250 (1924) (Holmes, J., dissenting) (pervasive legislation indicates no public policy bar to common-law cause of action for wrongful death).
. We have not been asked by the Fifth Circuit to answer in this case the question of whether the statute of limitations for wrongful death, interpreted to bar application of the discovery rule, conflicts with our state constitutional due process provision, article I, section 19 of the Texas Constitution. This court in Nelson v. Kru-sen, while recognizing that the due process and "open courts” provision are not coterminous, specifically left that question unanswered. Nelson, 678 S.W.2d at 921. Another unexplored question is whether the legislative distinction between the quick and the dead passes muster under article I, section 3 of the Texas Constitution, our state guarantee of equal protection, or the federal equivalent, U.S. Const, amend. XTV, § 1.