Is there right of recovery under the Pennsylvania Wrongful Death
The issue is novel in the sense that the precise question has never been decided by the appellate courts of Pennsylvania and that being so we are required to consider such approach to the problem as may be indicated by the Pennsylvania cases in the general field and to resort to general applicable principles to reach a conclusion consistent with Pennsylvania law. In sum, it is incumbent on us to make our own determination of what the Pennsylvania Supreme Court would probably rule in a similar case.
The Pennsylvania Supreme Court has twice had occasion within the past quarter century to consider the issue as to whether an infant eammaintain an action for injuries sustained prior to birth. In 1940 it held that it could not do so in Berlin v. J. C. Penney Company, Inc.,
In Berlin the Court held, at page 549 of
“ * * * there is no warrant for holding, independent of a statute, that a cause of action for pre-natal injuries to a child accrues at birth. 4 Restatement, Torts, Sec. 869.”
In Sinkler, in a penetrating analysis of the many decisions then extant, the late Justice Bok, speaking for the Court, pointed out that the majority view in the United States, which had denied recovery at the time of Berlin has since veered in the opposite direction.
In doing so, Justice Bok said (p. 269 of 401 Pa., p. 97 of 164 A.2d) :
“By now all four jurisdictions on which Berlin relied have reversed themselves and at present uphold the right of action when the child is born alive: Woods v. Lancet, 1951,303 N.Y. 349 ,102 N.E.2d 691 ,27 A.L.R. 2d 1250 ; Amann v. Faidy, 1953,415 Ill. 422 ,114 N.E.2d 412 ; Smith v. Brennan and Gailbraiths, 1960,31 N.J. 353 ,157 A.2d 497 ; and Keyes v. Construction Service, Inc.,340 Mass. 633 , 1960,165 N.E.2d 912 .”
It should be noted that in Sinkler the mother was one month pregnant with the infant plaintiff at the time of the accident which caused it to be born Mongoloid. The Court evidently deemed the fact that the fetus was not viable as unimportant, and expressed the view (at page 273 of
Sinkler has established that a child who is born alive may recover for prenatal injuries even though it was a nonviable embryo at the time its injuries were sustained.
We think we are justified in stating that Sinkler has demonstrated a tendency on the part of the Pennsylvania Supreme Court to move in the direction of the liberality evidenced,in the general field in other jurisdictions.
The first case decided by the highest court of any state was the 1884 one of Dietrich v. Inhabitants of Northampton,
Due no doubt to the prestige of Justice Holmes, the doctrine of Dietrich prevailed for some sixty-five years.
Bonbrest v. Kotz,
Five state courts — Massachusetts, Nebraska, New York, Oklahoma, and Tennessee have disallowed such actions.
Nine state courts — Connecticut, Delaware, Kansas, Kentucky, Maryland, Minnesota, Mississippi, New Hampshire and Ohio have held to the contrary and allowed the actions.
The weight of authority evidenced by the foregoing is that an action may be maintained under wrongful death statutes for pre-natal injuries sustained by a viable fetus which is stillborn and we think that Sinkler has indicated that Pennsylvania would align itself with the preponderant view.
Two questions remain. Neither warrants extended discussion.
First is whether the verdict of $5,000 for the death of an unborn infant was excessive.
The question remaining is whether, in view of the actual verdict, the allegation of damages in excess of the jurisdictional level sufficed to confer jurisdiction. The test is applied in limine; only when it appears with legal certainty that the claim cannot possibly reach the requisite level will the action be dismissed; the mere fact that the jury ultimately returns a smaller verdict does not defeat the original jurisdiction.
For the reason stated the judgment of the District Court entered pursuant to the jury’s verdict in favor of the plaintiffs will be affirmed.
Notes
. 12 P.S. §§ 1601, 1602.
. 20 P.S. §§ 320.601-602-603.
. In substance, these are the facts: On a summer morning in 1960 two automobiles collided in Westmoreland County, Pennsylvania. In one were members of the family of William H. Gullborg, including his wife, then some six months pregnant. The collision caused the stillbirth of a fully formed female infant weighing two pounds, two ounces, and described by the attending physician as capable of living apart from the mother’s body. The father as administrator of the dead child’s estate, and in his own right, together with the mother and several living children, filed suit in trespass against Prank J. Rizzo, Jr. and others. The complaint alleged the amount in controversy to be in excess of $10,000, and diversity of citizenship existed. The jury awarded $5,000 in favor of the stillborn child’s estate and the amount of the funeral bill, $158.00 to the next of kin. Dismissing motions of defendant Rizzo for judgment N.O.V. and for new trial, the court below entered judgment on the verdict. Thereupon that defendant filed the pending appeal.
. Erie R. Co. v. Tompkins,
. Gerr v. Emrick,
. In Carroll v. Skloff, C.P. No. 1, Phila. Co. March Term, 1963, No. 5407, decided February 14, 1964, Judge Sporkin did not construe Sinkler as permitting recovery lor injuries sustained by a nonviable fetus and explicitly held that a cause of action did not accrue when a non-viable 10-week fetus was removed from its mother by surgical means.
. In Simmons v. Weisenthal, 29 Pa.Dist. & Co.R.2d 54 (1962), Judge Griffith followed Sinkler in his implicit holding, in limine, that a non-viable fetus at the age of 4% months could after Mrth maintain an action for its pre-natal injuries. In doing so he construed Sinkler as allowing recovery for injuries sustained by a fetus at any time after conception without regard to viability. In that respect Simmons differed with Carroll, cited in Note 6, in which Judge Sporkin specifically stated that he did not so construe Sinkler.
. The mother in that case was between four and five months pregnant; she fell on a defective highway and miscarried; the child lived for ten or fifteen minutes and then died; the child’s administrator sued under a statute permitting recovery for death caused by wrongful act. The court ruled that the unborn child was merely a part of the mother at the time of the injury, and was not a “person” within the meaning of the statute'.
. The cases which subscribed to the Dietrich doctrine are collated in Verkennes v. Corniea,
. It is unnecessary to encumber this discussion with detailed citations; they appear fully in Justice Bok’s opinion in Sinkler v. Kneale. As that opinion points out, in 1960 some eighteen states allowed recovery, eight denied it; since 1949 seven states among the eighteen had overruled former decisions refusing damages; among the eight in the contrary group, two, said Justice Bok, indicated a likelihood of reversal and two others expressly refrained from determining the
. Keyes v. Construction Service, Inc.,
. West v. McCoy,
. Gorke v. LeClerc, 23 Conn.Super. 256,
. Porter v. Lassiter,
. Wendt v. Lillo,
. There were other awards to other parties plaintiff, which are not involved in this question. Judgment was also entered against a codefendant of the appellant Rizzo, but only he appealed. The jury absolved a third defendant.
. Swartz v. Smokowitz,
. At birth a female infant has a life expectancy of 74.1 years; 1963 Life Insurance Fact Book, p. 109. Under the Pennsylvania formula she would have in anticipation 53 years of adulthood in which to accumulate the requisite sum.
. DeSimone v. City of Philadelphia,
. See Milicevich v. Paterline,
. St. Paul Mercury Indemnity Co. v. Red Cab Co.,
. See Note 20, supra.