Appeal from judgment of Court of Common Pleas No. 7 of Philadelphia County, Sept. T., 1964, No. 4162, in case of John J. Marko, Jr., administrator of estate of Joan Marko, deceased v. Philadelphia Transportation Company.
Edwin E. Naythons, with him Freedman, Borowsky and Lorry, for appellant.
Harry A. Takiff, with him Martin Greitzer, and Takiff & Bolger, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Roberts concurs in the result. Mr. Justice Musmanno dissents. Concurring Opinion by Mr. Chief Justice Bell.
The plaintiff in an action of trespass appeals from the decision of the court below, sustaining preliminary objections to the complaint in the nature of a demurrer.
The single question for decision may be stated thusly: 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 a viable fetus that is stillborn?
The facts pleaded in the complaint are briefly these: Shirley Marko, six months' pregnant with a "viable child", was a passenger in a trackless trolley owned and operated by the defendant-corporation; that as a result of negligence on the part of the defendant, electricity passed through the body of Shirley Marko, which resulted in the death of the infant, Joan Marko, plaintiff's decedent, while en ventre sa mere, and caused her to be delivered stillborn.
The issue is controlled by our recent decision in Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964). The plaintiff argues that Carroll is distinguishable in that therein the infant involved was of only ten weeks' gestation, and hence, obviously, was not viable. The contention is without merit.
Carroll came before us on the pleadings only. The complaint alleged that the infant was a "viable fetus". The issue for decision was whether or not the complaint set forth a cause of action. We necessarily accepted the facts as pleaded, and considered the case as one involving a "viable fetus". Moreover, it was our conclusion
that, under the circumstances, the fact of viability was incidental and not controlling.
The plaintiff also maintains that our decision in Carroll is not in accord with Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960). To this, we cannot subscribe. The situations presented are vastly dissimilar. In Sinkler, we ruled that a child born alive could recover for prenatal injury (whether viable or not at the time of the injury) suffered through the wrongful act of another. In such a case, as contrasted with the one now before us, the problems of proof of causation and pecuniary loss are reduced, and a just result is reasonably attainable. Additionally, the real basis for the decision in Sinkler and kindred cases is to permit the child to recover just compensation from the wrongdoer for injuries and for the loss the child itself has and will suffer. In the present case, the real objective is to compensate the survivors, particularly the parents, for their emotional distress. Neither ...