dissenting.
I agree with Chief Justice Evans that, under the rule in Yandell v. Delgado, the birth and survival of a child is required to support a cause of action for prenatal injuries. Texas is not alone in this requirement. See generally Annot., 84 A.L.R.3d 411 (1978); Annot., 15 A.L.R.3d 992 (1967).
However, I disagree with his conclusion that Mrs. Witty’s cause of action is not barred by the Workers’ Compensation Act. Appellant argues that Texas should recognize a cause of action against an employer for the employee’s emotional distress resulting from the prenatal injuries and death of a fetus, despite the fact that the employee has received worker’s compensation benefits for her personal injuries incurred in the same incident.
The statute does not permit such a recovery. Appellant’s right of recovery against her employer for this injury, and the mental anguish, loss of familial relations and emotional distress caused by it, is limited to benefits under the Workers’ Compensation Act, which she claimed and received, it having been judicially admitted by all that she was an employee and that her injury occurred in the course and scope of employment. Tex.Rev.Civ.Stat.Ann. art. 8306, sec. 3(a) (Vernon Supp.1985). See also Hedgeman v. Berwind Railway Service Co., 512 S.W.2d 827 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref’d n.r.e.). In my opinion, the second point of error should be overruled.
In her third point of error, appellant asserts that the motion for summary judgment did not attack her claim for property damage resulting from the destruction of her property, to wit, the fetus. Appellee has not specifically mentioned the property damage claim in its brief and did not specifically mention the property damage claim in its motion for summary judgment.
The summary judgment motion stated: Defendant is entitled to summary judgment in its favor, because, as a matter of law, this uncontradicted summary judgment evidence establishes: 1) ... 2) the absence of the following element of plaintiff’s cause of action: that plaintiff, Baby Witty, was bom alive....
A cause of action exists for prenatal injuries sustained at any prenantal stage if and only if the child is born alive and survives. Leal v. C.C. Pitts Sand & Gravel Company, Inc., 419 S.W.2d 820 (Tex.1967); Yandell v. Delgado, 471 S.W.2d 569 (Tex.1971).
No summary judgment evidence was offered by appellant, and she has cited no authority supporting a claim for property damage in these circumstances. The undisputed summary judgment evidence was that the fetus was not alive when it was separated from appellant.
Yandell v. Delgado supports the District Court’s judgment that the appellant take nothing on her claim for property damage. The Supreme Court held that “a cause of action” exists for prenatal injuries provided the child is born alive and survives. 471 S.W.2d at 570. In the absence of live birth and survival, there is not merely no claim for personal injuries; there is no “cause of action”. Although appellant sought several different kinds of damages, she alleged only one cause of action, that arising from injuries to the fetus. Where there is no cause of action for prenatal injuries, as in the instant case, there can be no recovery of any kind of damages, including property damages. Therefore, I would overrule the third point of error.
*648Being convinced that the judgment should be affirmed, I respectfully dissent.