Carroll v. Skloff
| Court | United States State Supreme Court of Pennsylvania |
| Writing for the Court | Before BELL; EAGEN; Further, there are sound and persuasive reasons for allowing recovery where the child is born alive suffering from injuries received during the gestation period, which do not exist under the present circumstances. If the infant is |
| Citation | 202 A.2d 9,415 Pa. 47 |
| Parties | Kenneth CARROLL, Administrator of the Estate of Baby Carroll, Deceased, Appellant, v. David S. SKLOFF, Appellee. |
| Decision Date | 01 July 1964 |
Page 9
Carroll, Deceased, Appellant,
v.
David S. SKLOFF, Appellee.
Page 10
Allen T. Newman, Benjamin Kuby, Klovsky & Kuby, Philadelphia, for appellant.
Richard J. Van Roden, Frnacis E. Shields, Philadelphia, Pepper, Hamilton & Scheetz, Philadelphia, of counsel, for appellee.
Before BELL, C. J., and JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
EAGEN, Justice.
The interesting question posed by this appeal may be stated as follows: Is there a right of recovery under the Pennsylvania Wrongful Death Act 1 and Survival Statute 2 by the administrator of an estate on behalf of an infant aborted, while en ventre sa mere, as the result of a direct trauma?
[415 Pa. 48] 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 present complaint is based, do not provide recovery for injuries to a stillborn fetus.
The cause of action created by the survival statute is strictly derivative. It is, as it is named, a surviving action. It is grounded upon an existing personal cause
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of action which the deceased could have but did not institute during his or her lifetime. It, therefore, necessarily follows that there must have been an independent life in being which could have instituted the action prior to death. Such, quite obviously, is not the case here.The death action technically is a new cause of action, however, it too is basically derivative. Moreover, it is clear that in enacting the Wrongful Death Act, the legislature never intended to...
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