Appeal, No. 131, Jan. T., 1964, from judgment of Court of Common Pleas No. 1 of Philadelphia County, March T., 1963, No. 5407, in case of Kenneth Carroll, administrator of estate of Baby Carroll, deceased, v. David S. Skloff. Judgment affirmed.
Allen T. Newman, with him Benjamin Kuby, and Klovsky and Kuby, for appellant.
Francis E. Shields, with him Richard J. Van Roden, and Pepper, Hamilton and Scheetz, for appellee.
Before Bell, C.j., Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE EAGEN
The interesting question posed by this appeal may be stated as follows: Is there a right of recovery under the Pennsylvania Wrongful Death Act*fn1 and Survival Statute*fn2 by the administrator of an estate on behalf of an infant aborted, while en ventre sa mere, as the result of a direct trauma?
The issue came before the lower court on defendant's preliminary objections in the nature of a demurrer to plaintiff's complaint in trespass.
The pertinent allegations of the complaint may be summarized thusly:
The plaintiff, father of an unborn child, sued the defendant, a physician, claiming damages on behalf of the child's estate and as next of kin on the ground that the defendant had in the course of an operation on plaintiff's wife negligently destroyed the infant in utero, a "viable fetus" of ten weeks' gestation.
The lower court sustained the objections to the complaint and dismissed the action. The ruling was correct.
In Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960), this Court upheld a cause of action on behalf of an infant born alive, for damages resulting from injury tortiously inflicted during the infant's fetal existence. However, the present case is patently and materially different. The statutes, upon which the ...