# Justus v. Atchison

> California Supreme Court · June 8, 1977 · 19 Cal. 3d 564

URL: https://www.frixlaw.com/law-library/cases/9559557

## Case

- **Full name:** LINDA SUE JUSTUS Et Al., Plaintiffs and Appellants, v. JOSEPH ATCHISON Et Al., Defendants and Respondents; KAREN K. POWELL Et Al., Plaintiffs and Appellants, v. JOSEPH ATCHISON Et Al., Defendants and Respondents
- **Court:** California Supreme Court
- **Decided:** June 8, 1977
- **Citations:** 19 Cal. 3d 564; 139 Cal. Rptr. 97; 565 P.2d 122; 1977 Cal. LEXIS 150
- **Precedential status:** Published
- **Opinion:** Concurrence by Tobriner
- **Judges:** Mosk
- **Cited by:** 227 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Disapproved on other grounds by Ochoa v. Superior Court, 39 Cal. 3d 159 (1985).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9559557

## How later opinions describe it (automated extraction)

- holding that statute allowing for tort recovery for wrongful death (C.C.P. § 377) did not provide recovery for the death of a fetus; however, P.C. §§ 187 and 270 address death and injury to unborn child
- rejecting Mo- ragne’s logic because the California legislature had occupied the field of wrongful death actions leaving no room for common-law development
- noting that after prior holding that “human being” did not include a fetus, the California murder statute was amended to apply to the killing of “a human being, or a fetus”
- holding a wrongful death action may not be maintained for the death of an unborn child

## Opinion text

*586 TOBRINER, Acting C. J.
I concur in the result reached by the majority opinion and in the reasoning of part II of that opinion. But although I agree with the majority that we should not recognize a new cause of action for the wrongful death of a fetus, a wholly intangible injury to plaintiffs for which any monetary recovery can provide no real compensation (see Borer v. American Airlines (1977) ante, at pp. 446-448 [ 138 Cal.Rptr. 302 , 563 P.2d 858 ]), I cannot join the reasoning by which the majority reaches that conclusion.
Even if the common law as of 1862 did not recognize a general cause of action for wrongful death, our decision must rest on the common law of 1977. In Moragne v. States Marine Lines (1970) 398 U.S. 375 [ 26 L.Ed.2d 339 , 90 S.Ct. 1772 ], the United States Supreme Court pointed out that recovery for wrongful death is now authorized by statute in every Anglo-American jurisdiction, and that such a broad legislative policy may serve as a source of common law. (398 U.S. at pp. 389-392 [26 L.Ed.2d at pp. 350-352].)
In enacting the wrongful death statute, our Legislature probably initially conceived that it was creating a right of recovery unknown to the common law. But from this premise alone, I am unable to divine an affirmative legislative intent to preclude further judicial development. I find nothing in the statute or its history which anticipates and forbids the evolution of recovery for wrongful death into a universally recognized right of common law status. Judicial expansion and refinement of legal concepts characterizes the common law—any legislative intent to foreclose such traditional judicial activity should require positive expression.
We said that it was the intention of the Legislature in enacting those provisions of the Civil Code declarative of the common law to announce and formulate existing common law principles with a distinct view toward continuing judicial evolution. {Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 814 [ 119 Cal.Rptr. 858 , 532 P.2d 1226 , 78 A.L.R.3d 393 ].) Here we have the converse situation: what was originally thought a statutory right may now serve as a source of common law. Just as “a statute is not an alien intruder in the house of the common law” (Stone, The Common Law in the United States (1936) 50 Harv.L.Rev. 4, 15), so too the evolving common law should be a welcome guest to domains previously thought statutory.
In sum, since this court decided to reject the asserted cause of action for the wrongful death of a fetus—as I believe it should—it must rest that *587 decision on reasons of. policy similar to those discussed in Borer v. American Airlines, supra. (19 Cal.3d at pp. 446-448.) It cannot avoid those difficult policy choices by limiting its vision to the terms of Code of Civil Procedure section 377 and ignoring the evolving common law of today.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9559557. Public record. Not legal advice.