POPE, Chief Justice, dissenting.

I respectfully dissent because I believe the court should not overturn its long-standing decisions and reinterpret the Texas Wrongful Death Statute to authorize recovery for mental anguish. In 1877, this court ruled that since the Texas Wrongful Death Statute was borrowed from Lord Campbell's Act, the measure of damages under the Texas statute was the same as the English act — pecuniary loss only. March v. Walker, 48 Tex. 372, 375 (1877). Texas courts have consistently followed the pecuniary loss rule. E.g., J.A. Robinson Sons, Inc. v. Wigart, 431 S.W.2d 327 (Tex. 1968); International G.N. Ry. v. McVey, 99 Tex. 28, 87 S.W. 328 (1905).

The majority reverses this well-established rule. If we were dealing with the common law rather than the statute, I might be persuaded by the majority's reasoning. There is strong evidence, however, that the Texas Legislature intended to limit recovery to pecuniary losses when it enacted the Texas Wrongful Death Statute. The Texas statute was patterned after the English statute. Both statutes provided that "the jury may give such damages as they may think proportioned to the injury resulting from such death . . ." The Fatal Accident Act, 9 10 Vict., ch. 93, § 2 (1846); 1860 Tex.Gen Laws, ch. 35, at 32, 4 H. Gammel, Laws of Texas 1394 (1898). When the Texas Legislature adopted the statute in 1860, the English statute and every American statute patterned after it had already been interpreted to limit recovery to pecuniary losses. See G. Field, The Law of Damages § 630 (1878). The majority does not dispute that the Texas Legislature at the inception of the statute intended to apply the pecuniary loss rule to the Texas statute. The continued use of the same language for more than a century while the courts have time and again consistently held that mental anguish may not be recovered shows that the courts' construction is in accord with the legislature's intent. E. Crawford, Construction of Statutes, § 224 (1940).

There are times when we have properly stuffed new meaning into old words of some statute. We should proceed modestly, however, when the Texas Legislature has addressed the provisions of this specific statute many times since we handed down March v. Walker, 48 Tex. 372 (1877). The Texas Wrongful Death Statute has been codified and recodified on four occasions since our decision in March. Article 4671 of the act, which authorizes the cause of action, has been amended five times. The Sixty-Third Legislature addressed the specific matter of damages under the statute and enacted article 4675a to permit proof of remarriage of the surviving spouse as evidence of reduced damages. See Exxon Corp. v. Brecheen, 526 S.W.2d 519, 525 (Tex. 1975). Four bills introduced in the Sixty-Sixth Legislature and three bills introduced in the Sixty-Seventh Legislature would have expanded recovery to include mental anguish. None of these bills passed. This summary of legislative consideration of damages under the Texas Wrongful Death Statute shows that the legislature has accepted some and rejected other proposals to change decisions about damages under the statute.

The Texas Legislature now has under consideration Senate Bill 30 and House Bills 255 and 800. Those bills, if enacted, would permit parents to recover damages for mental anguish, loss of society, and loss of companionship resulting from the death of a child. House Bill 800 has been reported favorably from a House committee. While the majority may be impatient with what they consider a less desirable statutory policy, I would adhere to settled principles of statutory construction. There is, for example, a presumption that the legislature acts "with full knowledge of all decisions on the subject matter of the legislation rendered before its enactment." Craft v. Craft, 579 S.W.2d 506, 508 (Tex.Civ.App.-Dallas), writ ref'd per curiam, 580 S.W.2d 814 (Tex. 1979).

The Texas Wrongful Death Statute created a right that did not exist at common law. We are now dealing with that statute — not the common law. The force of prior judicial construction of statutes has been expressed by this court in a number of thoughtful opinions. Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex. 1968); Moss v. Gibbs, 370 S.W.2d 452, 458 (Tex. 1963). See 20 Am.Jur.2d, Courts, § 198 (1965). In Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46, 51 (1931), we announced a principle of statutory construction that we have respected:

Nothing is better settled than that the Legislature must be regarded as intending statutes, when repeatedly re-enacted, as is the case here, to be given that interpretation which has been settled by the courts. Love v. Wilcox (Tex.Sup.) [ 119 Tex. 256] 28 S.W.2d 515, 524; Pearson v. West, 97 Tex. [238] 239, 77 S.W. 944.

Upon these principles this court refused to overturn a long-standing interpretation that the Texas Wrongful Death Statute did not have extra-territorial force. Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex. 1968). In Marmon, the petitioner argued that the doctrine that the state had no power to give extra-territorial effect had become outmoded by force of the most significant contacts doctrine. This court, while accepting the doctrine in other contexts, rejected that approach, saying:

If this proposition be accepted as sound, it does not necessarily follow that we should now hold that Article 4671 has extra-territorial thrust. It would be far-reaching, to say the least, for us to say that an enactment of the Legislature adopted over a hundred years ago now has a different meaning and a more far-reaching thrust than it did when construed by this court in 1884.

Id. at 185-86. The legislature subsequently amended the statute to give it extra-territorial force. 1975 Tex.Gen Laws, ch. 530, § 2, at 1382; Tex.Rev.Civ.Stat.Ann. art. 4678.

The majority announces a novel rule of statutory construction. It first appeared in the jurisprudence of Texas in a concurring opinion three years ago. Bedgood v. Madalin, 600 S.W.2d 773 (Tex. 1980) (Spears, J., concurring). That new rule is that a legislature's inaction is a signal that courts are free to move into legislative policy matters. The majority opinion states that legislative inaction should no longer thwart what they consider a better policy. It then imposes that policy judicially.

This rule assumes that repeated unfruitful efforts to amend the Texas Wrongful Death Statute concerning damages are proof of inaction. The legislature has in fact often acted. An effective way of defeating a weak or bad bill is to avoid voting on it. The legislature's refusal to vote on the many proposals to change the measure of damages is an opinion of that branch of government that there is no pressing need to change the present law. Legislatures act affirmatively and negatively; but in either instance, the legislative will is expressed. For us to ignore defeated legislation is as misleading as it would be for a court to reject from our common law decisions those cases which hold for the defendant. See 2 A. Sutherland, Statutory Construction, § 45.10 (4th ed. 1973). When we refuse the claims of plaintiffs and hold for defendants, we are still handing down legal opinions and guidelines, just as the legislature makes a statement of its intent by defeating legislation.

The judiciary should exercise caution before substituting its subjective notions for legislative materials. The new rule authorizes judicial resolution of policy matters of great public import without benefit of or compliance with ordinary checks and balances, open meetings limitations, public hearings, democratic legislative debate, a bicameral consideration, an executive veto, or other legislative safeguards. It is one thing for a court to decide that an interpretation of a statute is erroneous; it is quite another and more serious matter for a court to decide that a statute is unwise. I would respect the separation of powers and exercise judicial restraint before entering a policy field where our judgment is at best a minority subjective decision.

A second reading of the majority opinion shows that the many cases cited in support of its proposed new rule relate to loss of society, which is not here involved. It is not until we reach the penultimate paragraph of the majority opinion that we are told that the majority's new rule is actually supported only by "several states." According to the majority, three states allow recovery for mental anguish under statutes similar to Texas' statute: Arizona, South Carolina, and Washington.

The Washington Supreme Court quite properly applied the Washington Legislature's 1967 amended statute that provided for a parent's recovery. Wilson v. Lund, 80 Wn.2d 91, 491 P.2d 1287 (1971). We do not have a statute, as Washington does, that says:

damages may be recovered for the loss of love and companionship of the child and for injury to or destruction of the parent-child relationship . . .

Wash.Rev Code § 4.24.010. The Arizona Supreme Court abandoned the pecuniary loss rule as a result of a 1956 amendment which authorized

such damages as it [the jury] deems fair and just with reference to the injury resulting from the death to the surviving parties who may be entitled to recover . . .

Ariz. Rev. Stat. Ann. § 12-613. See Boise v. Cole, 99 Ariz. 198, 407 P.2d 917, 920 (1965). The South Carolina Supreme Court has always construed its statute to permit mental anguish damages. See Norhden v. Northeastern Railroad Co., 59 S.C. 87, 87 S.E. 228, 239 (1900). The important distinction is that none of these courts had to overturn an established statutory construction. The majority does not cite a single case in which a court has authorized damages for mental anguish by overruling a longstanding statutory construction that has been ratified by legislative re-enactment of the existing statute and ratified by legislative rejection of amendments authorizing mental anguish damages. Yet that is what the majority does today.

Other states that have achieved the result sought by the majority have waited until the statutory policy was changed by the legislature's amendment of the statute. A minority of eleven jurisdictions permit recovery for mental anguish, and ten of those jurisdictions declared their policy by amending their statutes. The majority can muster no substantial precedent for its in-house change of legislative policy.

The majority opinion does not clearly delineate the proof required to recover its newly created damages for mental anguish. Some of the language in the opinion suggests that any mental anguish, however slight, is compensable. The established threshold for recovering mental anguish damages requires proof of willful tort, gross negligence, willful and wanton disregard, or physical injury resulting from the mental anguish. This threshold is universally applied in the common law and statutory law of this state. E.g., Farmers Merchants State Bank of Krum v. Ferguson, 617 S.W.2d 918, 921 (Tex. 1981) (Uniform Commercial Code); Duncan v. Luke Johnson Ford, Inc., 603 S.W.2d 777, 779 (Tex. 1980) (deceptive trade practices); Billings v. Atkinson, 489 S.W.2d 858, 861 (Tex. 1973) (invasion of privacy); Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 630 (Tex. 1967) (assault and battery).

The Texas Deceptive Trade Practices Act, like the Texas Wrongful Death Statute, authorizes the recovery of "actual damages." Tex.Bus. Com Code Ann. § 17.50(b)(1); Tex.Rev.Civ.Stat.Ann. art. 4671. We have repeatedly held that "actual damages" under the Deceptive Trade Practices Act means those damages recoverable at common law and that damages for mental anguish require proof of physical injury or conduct worse than negligence. Speier v. Webster College, 616 S.W.2d 617, 618 (Tex. 1981), aff'g in part, 605 S.W.2d 712, 713-14 (Tex.Civ.App.-Eastland 1980); Brown v. American Transfer Storage Co., 601 S.W.2d 931, 939 (Tex. 1980). In this case, Mrs. Sanchez has satisfied the threshold for recovering mental anguish damages by proving a resulting physical injury. In future cases, we should continue to adhere to the universally established standard for mental anguish damages.

The decisions of this court have made the Wrongful Death Statute certain, and to that extent our decisions are a part of the statute. To change our decisions is to change the statute when the evidence is that the legislature has not seen any need to make the change. For this court to do so is to intrude upon the legislative policy arena. Horack, Jr., Congressional Silence: A Tool of Judicial Supremacy, 25 Tex.L.Rev. 247, 261 (1947).

I would affirm the judgments of the courts below.

McGEE and BARROW, JJ., join in this dissenting opinion.

RAY, Justice, concurring.

ON MOTION FOR REHEARING

I concur with the majority in overruling the Schindlers' motion for rehearing. I further concur with the majority of the Court in rejecting the pecuniary loss limitation in actions for the wrongful death of a child. In doing so, we join the modern trend in allowing recovery for loss of companionship, society, emotional support, love and felicity.

The opinion speaks only to recovery by a parent for the death of a minor child. Legal symmetry mandates that the class of beneficiaries affected by this decision not be limited to parents of minor children. The majority has aptly noted that "injuries to the familial relationship are significant injuries and are worthy of compensation." In future cases brought under the Texas Wrongful Death Act, I would permit recovery for the social losses and emotional injuries inflicted upon any beneficiary designated by statute. Tex.Rev.Civ.Stat.Ann. art. 4675.

We have permitted Mrs. Sanchez to recover damages for mental anguish, recognizing that "[a] plaintiff should be permitted to prove the damage resulting from a tortfeasor's negligent infliction of emotional trauma." Mrs. Sanchez introduced evidence that she is suffering from traumatic depressive neurosis and as a result must seek medical care for physical pains associated with her neurosis. While the majority opinion does not address the issue, I do not believe that proof of such physical manifestations should be a necessary predicate for recovery for mental anguish. Connell v. Steel Haulers, Inc., 455 F.2d 688, 691 (8th Cir. 1972).

Mr. Chief Justice Pope, in his dissent to the majority opinion, states that "[s]ome of that language in the opinion suggests that any mental anguish, however slight, is compensable." While I agree with his observation, I disagree with his objection. The focus should be on compensating the bereaved for their harrowing experience resulting from the untimely, preventable and otherwise unnecessary death of one with whom they have shared a special emotional relationship. See 1 Speiser, Recovery for Wrongful Death 2d, § 3:52. To this extent, I would overrule such cases as Speier v. Webster College, 616 S.W.2d 617, 618 (Tex. 1981); Brown v. American Transfer Storage Co., 601 S.W.2d 931, 939 (Tex. 1980); and Harned v. E-Z Finance Co., 151 Tex. 641, 254 S.W.2d 81 (1953). Justice and public policy should permit an award for the grief, sorrow and mental distress suffered by a decedent's survivors. See Scoville v. Missouri Pacific Railroad Co., 458 F.2d 639, 649 (8th Cir. 1972); Connell v. Steel Haulers, Inc., 455 F.2d at 691; see also, 1 2 Speiser, supra, §§ 3:53, 15:11.

The concurring opinion in Bedgood v. Madalin, 600 S.W.2d 773, 776-80 (Tex. 1980) (Spears, J.), was the harbinger of the present majority opinion. Mr. Justice Spears concluded his concurrence by stating: "It is time for Texas to take this step into the 20th Century." The majority has initiated that step; we should now complete the evolution.

KILGARLIN, J., joins in this concurring opinion.