Before McLAUGHLIN, KALODNER and GANEY, Circuit Judges.
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 ...