as amended may 12 1964.: April 14, 1964.
WILLIAM H. GULLBORG, ADMINISTRATOR OF THE ESTATE OF BABY GULLBORG, DECEASED, ON BEHALF OF THE ESTATE OF BABY GULLBORG, DECEASED, ET AL.
FRANK J. RIZZO, JR., FERN HAZLETT BUTCHER AND RODOLF C. HERNANDEZ, FRANK J. RIZZO, JR., APPELLANTS.
Before McLAUGHLIN, KALODNER and GANEY, Circuit Judges.
KALODNER, Circuit Judge.
Is there right of recovery under the Pennsylvania Wrongful Death*fn1 and Survival Acts*fn2 for the wrongful death of a stillborn viable fetus?
That is the primary question presented by this appeal from the judgment of the District Court entered pursuant to a jury's verdict awarding damages to the plaintiffs. The District Court answered the question in the affirmative and this appeal followed*fn3 Jurisdiction is based on diversity and Pennsylvania law applies*fn4
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*fn5
The Pennsylvania Supreme Court has twice had occasion within the past quarter century to consider the issue as to whether an infant can maintain 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., 339 Pa. 547, 16 A.2d 28 and in 1960 it held to the contrary in Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93.
In Berlin the Court held, at page 549 of 339 Pa., at page 28 of 16 A.2d:
"* * * 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 401 Pa., at page 96 of 164 A.2d) that the viability or lack of viability of the infant at the time its injuries were received has "little to do with the basic right to recover, when the foetus is regarded as having existence as a separate creature from the moment of conception."*fn6 Viability is the stage at which the fetus is able to survive when separated from its mother. Schmidt, Attorneys' Dictionary of Medicine, p. 870 (1962) defines it as "the ability to survive outside the uterus." In the instant case it is undisputed that the fetus which was 6 1/2 months in being, weighed two pounds and two ounces and fully formed, was viable.
Sinkler has established that a child who is born alive may recover for pre-natal injuries even though it was a non-viable embryo at the time its injuries were sustained*fn7 Our task is to determine whether the Pennsylvania Supreme Court would hold that a cause of action accrues under its Wrongful Death and Survival statutes when a viable infant is stillborn as in the instant case.
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, 138 Mass. 14, 52 Am.Rep. 242, in which Justice Oliver Wendell Holmes, Jr., then a member of the Supreme Judicial Court of Massachusetts, categorically denied liability for damages in behalf of an infant for prenatal injuries*fn8
Due no doubt to the prestige of Justice Holmes, the doctrine of Dietrich prevailed for some sixty-five years*fn9
Bonbrest v. Kotz, 65 F.Supp. 138 (D.C.Cir. 1946), led a procession of decisions which departed from the holding in Dietrich and permitted actions to be maintained for prenatal injuries to a viable fetus which was born alive . An overwhelming majority of states now subscribe to the Bonbrest doctrine*fn10
Sharp division exists among the states as to whether, under wrongful death statutes, an action can be maintained for prenatal injuries suffered by a viable fetus which is stillborn .
Five state courts - Massachusetts, Nebraska, New York, Oklahoma, and Tennessee have disallowed such actions*fn11 Another, South Carolina, has indicated, in an obiter dicta expression, its accord with these five states*fn12
Nine state courts - Connecticut, Delaware, Kansas, Kentucky, Maryland, Minnesota, Mississippi, New Hampshire and Ohio have held to the contrary and allowed the actions*fn13 The Court of Appeals of Georgia has permitted a civil action for damages to be maintained for the "murder" of a non-viable fetus of 4 1/2 months holding that the test was whether the fetus was "quick" at the time*fn14 A federal district court in Iowa, in a diversity action, construed the wrongful death statute of that state to permit the action*fn15
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*fn16 Under the Pennsylvania decisions, damages in a survival action are based on the present value of the decedent's prospective earnings for the period of his life expectancy after reaching the age of 21, less his anticipated maintenance expense*fn17 In the instant case it was in evidence that the child's father was a college graduate who had earned and was likely to earn a substantial income; that the dead child was a fully formed female, and that until the accident the mother had experienced a normal pregnancy. In view of these circumstances it cannot be said that the jury's award of $5,000 was not in consonance with the stated Pennsylvania rule*fn18 In Pennsylvania a jury's award is deemed excessive when it shocks the conscience of the court*fn19 Recoveries in Pennsylvania in survival cases by the estates of deceased children have often reached and exceeded $10,000 without any manifest shocking of the judicial conscience*fn20 The court below expressly upheld the verdict. We are in accord.
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*fn21 Cases have already been cited to demonstrate that in a situation such as the one before us a verdict of $10,000 would not be ruled excessive*fn22 On this point likewise the court below decided against the defendant and again we find ourselves in accord.
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.