dissenting.
I respectfully dissent.
While the Tennessee Wrongful Death Statute did, as the majority notes, change a rule of the common law, it does not follow that the statute must be strictly construed. See, e. g., Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 369, 355 S.W.2d 436 (1962). Statutes changing common-law rules may also be remedial, 82 C.J.S. Statutes § 388 (1953), and thus, entitled to a liberal construction so as to effectuate the purposes for which they were enacted.
“Death statutes have their roots in dissatisfaction with the archaisms of the [earlier] law . . . . It would be a misfortune if a narrow or grudging process of construction were to exemplify and perpetuate the very evils to be remedied. There are times when uncertain words are to be wrought into consistency and unity with a legislative policy which is itself a source of law, a new generative impulse transmitted to the legal system.” Van Beeck v. Sabine Towing Co., 300 U.S. 342, 350-51, 57 S.Ct. 452, 456, 81 L.Ed.2d 685 (1937) (Cardozo, J.).
In my opinion, resolution of the question of whether an unborn child is a “person” within the meaning of our Wrongful Death Act should effectuate the basic purposes of such legislation — “to afford redress in wrongful death cases where no redress was obtainable at common law, and to ameliorate the harsh rule which denied any recovery if an injured person died, while permitting an award of damages if the person lived.” 25A C.J.S. Death § 14 (1966) (emphasis added).
In Shousha v. Matthews Drivurself Serv., Inc., 210 Tenn. 384, 358 S.W.2d 471 (1962), parents were allowed to bring actions for the wrongful deaths of their triplet sons where each child was born alive and subsequently died as a result of injuries received prior to birth.
It is no less a loss to survivors where, as here, the child died before birth. It seems inconsistent to permit recovery for prenatal injuries to the child born alive but to deny recovery to a child whose prenatal injuries inflicted by the tortfeasor are severe enough to cause stillbirth. As the Maryland Supreme Court observed: “The cause of action arose at the time of the injury, and we see no more reason why it should be cut off because of the child’s death before birth, than if it died thereafter.” State ex rel. Odham v. Sherman, 234 Md. 179, 198 A.2d 71, 73 (1964).
Because this inconsistency is essentially the same as that addressed by the wrongful death statutes, I would hold that an unborn child is a “person” within the meaning of the Tennessee Wrongful Death Statute, thus permitting the parents to recover notwithstanding the death of the child. In my opinion it is clear that our Legislature intended that whatever loss there is should be compensated.
I am authorized to state that Mr. Chief Justice HENRY joins in this dissent.