ALBERT V. BRYAN, Circuit Judge:
An unborn child’s death as a result of a tortious injury to her mother does not give a cause of action under the wrongful death act of South Carolina,1 the District Court has held, if the child was not born alive, although the child was viable at the time of injury. The decision was made on motion of the defendant tortfeasor to dismiss the complaint of the administrator of the child’s estate. We reverse.
[76]*76On January 9, 1963 Baby Todd was a live and healthy unborn child of 8 months gestation. While a passenger in an automobile on that day, her mother was violently shaken and suffered serious injury in South Carolina when the front of the car plunged into an opening in a highway left unguarded through the neglect of the defendant-appellee, San-didge Construction Company. As an immediate result, the child died on January 10, 1963, and was delivered dead through a Caesarian section on January 14. These facts were confessed by the motion to dismiss.
Appellant and father of the child, Albert J. Todd, qualified in South Carolina as administrator of the estate of Baby Todd and brought this action under the State Act, reading as follows:
“Whenever the death of a person shall be caused by a wrongful act, neglect or default of another and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, although the death shall have been caused under such circumstances as make the killing in law a felony.”
The right of an administrator to sue for wrongful death in South Carolina depends upon whether the decedent could have sued for the injury had he survived. Price v. Richmond & Danville Railroad Co., 33 S.C. 556, 12 S.E. 413 (1890). We think resolution of the present question hinges on interpretation of the statute, supra, in respect to the meaning of “a person”.
South Carolina doctrine on the right of action of an unborn child has not been expressly expanded to comprehend the instant circumstances. In West v. McCoy, 233 S.C. 369, 105 S.E.2d 88 (1958), the Court held that an unborn child of 5% months pregnancy was not a person in being for whose death recovery could be made. There the child was not viable at the time of the injury, nor did it survive birth. In the first feature the ease differs from the present. But in Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960) the Supreme Court of South Carolina recognized a right of action for the death of a viable child resulting from a prenatal injury to its mother where after a premature birth the child lived for 4 hours. The only feature distinguishing that case from ours is the live birth.
Thus the South Carolina Court has accorded an action to an injured unborn, viable child living at birth. It has not been asked to go further and say whether the right vanished with lifeless birth. The District Judge felt compelled to that conclusion by the West case, supra, 105 S.E.2d 88. However, we do not believe the State Court intended to raise the bar to the point of disallowing a cause of action to a viable child injured en ventre sa mere when, as here, the injury was the very reason the child did not survive.
To begin with, the Supreme Court of South Carolina has treated an unborn but viable child as a person and personality. Justice Oxner enunciated this concept in Hall, supra, 236 S.C. 257, 113 S.E.2d 790, 793, in closely knitted and notable logic, saying:
“We have no difficulty in concluding that a foetus having reached that period of prenatal maturity where it is capable of independent life apart from its mother is a person and if such a child is injured, it may after birth maintain an action for such injuries. A few courts have gone further and held that such an action may be maintained even if the infant had not reached the state of a viable foetus at the time of the injury. [Citations omitted.] This question is not presented and we intimate no opinion thereabout. Our decision is limited to liability for prenatal injuries to a viable child born alive.” (Accent added.)
To balance the right of action upon whether the child, fatally injured by the [77]*77negligence of another, is born dead or alive seems not only an artificial demarcation but unjust as well. To illustrate, if the trauma is severe enough to kill the child, then there could be no recovery; but if less serious, allowing the child to survive, there might be recovery. Again, if the fatality was immediate, the suit could not prevail, but if the death was protracted by a few hours, even minutes, beyond birth, the claim could succeed. Practically, it would mean that the graver the harm the better the chance of immunity. Moreover, it allows the act of the tortfeasor to foreclose his own liability — the life of the action would be in his hands. These results have a sound cogency, quite aside from the general reasons justifying the death statutes, for the argument that those deprived of their own by death should not also be_deprived of all recompense by the death.
Once the viable foetus is accorded the status of a person in esse, logic would constitute its wrongful death a cause of action under the South Carolina statute, for “if death had not ensued”, to quote the law, the child would have been “entitled * * * to maintain an action and recover damages”. This is vouched in Hall v. Murphy, supra, 236 S.C. 257, 113 S.E.2d 790. The common law attributed an existence to a child prior to birth in respect to property rights, as Blackstone states, I Commentaries on the Law of England, p. 130:
“Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. # # •X’
“An infant in ventra sa mere, or in the mother’s womb, is supposed in law to be bom for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours.” [Annotations omitted.]
Semble, if his property may be preserved for him before birth, his life should be entitled to no less protection.
Our furtherance of the reasoning of the Supreme Court of South Carolina is precedented by the Court of Appeals of Maryland in State, Use of Odham v. Sherman (1964), 234 Md. 179, 198 A.2d 71. After searchingly examining the question, the Court directed recovery for the death of a stillborn child caused by a tortious pre-birth injury. A like conclusion was reached in Wendt v. Lillo, 182 F.Supp. 56, 61 (D.C.N.D.Iowa 1960), Judge Graven writing trenchantly under the law of Iowa.
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ALBERT V. BRYAN, Circuit Judge:
An unborn child’s death as a result of a tortious injury to her mother does not give a cause of action under the wrongful death act of South Carolina,1 the District Court has held, if the child was not born alive, although the child was viable at the time of injury. The decision was made on motion of the defendant tortfeasor to dismiss the complaint of the administrator of the child’s estate. We reverse.
[76]*76On January 9, 1963 Baby Todd was a live and healthy unborn child of 8 months gestation. While a passenger in an automobile on that day, her mother was violently shaken and suffered serious injury in South Carolina when the front of the car plunged into an opening in a highway left unguarded through the neglect of the defendant-appellee, San-didge Construction Company. As an immediate result, the child died on January 10, 1963, and was delivered dead through a Caesarian section on January 14. These facts were confessed by the motion to dismiss.
Appellant and father of the child, Albert J. Todd, qualified in South Carolina as administrator of the estate of Baby Todd and brought this action under the State Act, reading as follows:
“Whenever the death of a person shall be caused by a wrongful act, neglect or default of another and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, although the death shall have been caused under such circumstances as make the killing in law a felony.”
The right of an administrator to sue for wrongful death in South Carolina depends upon whether the decedent could have sued for the injury had he survived. Price v. Richmond & Danville Railroad Co., 33 S.C. 556, 12 S.E. 413 (1890). We think resolution of the present question hinges on interpretation of the statute, supra, in respect to the meaning of “a person”.
South Carolina doctrine on the right of action of an unborn child has not been expressly expanded to comprehend the instant circumstances. In West v. McCoy, 233 S.C. 369, 105 S.E.2d 88 (1958), the Court held that an unborn child of 5% months pregnancy was not a person in being for whose death recovery could be made. There the child was not viable at the time of the injury, nor did it survive birth. In the first feature the ease differs from the present. But in Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960) the Supreme Court of South Carolina recognized a right of action for the death of a viable child resulting from a prenatal injury to its mother where after a premature birth the child lived for 4 hours. The only feature distinguishing that case from ours is the live birth.
Thus the South Carolina Court has accorded an action to an injured unborn, viable child living at birth. It has not been asked to go further and say whether the right vanished with lifeless birth. The District Judge felt compelled to that conclusion by the West case, supra, 105 S.E.2d 88. However, we do not believe the State Court intended to raise the bar to the point of disallowing a cause of action to a viable child injured en ventre sa mere when, as here, the injury was the very reason the child did not survive.
To begin with, the Supreme Court of South Carolina has treated an unborn but viable child as a person and personality. Justice Oxner enunciated this concept in Hall, supra, 236 S.C. 257, 113 S.E.2d 790, 793, in closely knitted and notable logic, saying:
“We have no difficulty in concluding that a foetus having reached that period of prenatal maturity where it is capable of independent life apart from its mother is a person and if such a child is injured, it may after birth maintain an action for such injuries. A few courts have gone further and held that such an action may be maintained even if the infant had not reached the state of a viable foetus at the time of the injury. [Citations omitted.] This question is not presented and we intimate no opinion thereabout. Our decision is limited to liability for prenatal injuries to a viable child born alive.” (Accent added.)
To balance the right of action upon whether the child, fatally injured by the [77]*77negligence of another, is born dead or alive seems not only an artificial demarcation but unjust as well. To illustrate, if the trauma is severe enough to kill the child, then there could be no recovery; but if less serious, allowing the child to survive, there might be recovery. Again, if the fatality was immediate, the suit could not prevail, but if the death was protracted by a few hours, even minutes, beyond birth, the claim could succeed. Practically, it would mean that the graver the harm the better the chance of immunity. Moreover, it allows the act of the tortfeasor to foreclose his own liability — the life of the action would be in his hands. These results have a sound cogency, quite aside from the general reasons justifying the death statutes, for the argument that those deprived of their own by death should not also be_deprived of all recompense by the death.
Once the viable foetus is accorded the status of a person in esse, logic would constitute its wrongful death a cause of action under the South Carolina statute, for “if death had not ensued”, to quote the law, the child would have been “entitled * * * to maintain an action and recover damages”. This is vouched in Hall v. Murphy, supra, 236 S.C. 257, 113 S.E.2d 790. The common law attributed an existence to a child prior to birth in respect to property rights, as Blackstone states, I Commentaries on the Law of England, p. 130:
“Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. # # •X’
“An infant in ventra sa mere, or in the mother’s womb, is supposed in law to be bom for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours.” [Annotations omitted.]
Semble, if his property may be preserved for him before birth, his life should be entitled to no less protection.
Our furtherance of the reasoning of the Supreme Court of South Carolina is precedented by the Court of Appeals of Maryland in State, Use of Odham v. Sherman (1964), 234 Md. 179, 198 A.2d 71. After searchingly examining the question, the Court directed recovery for the death of a stillborn child caused by a tortious pre-birth injury. A like conclusion was reached in Wendt v. Lillo, 182 F.Supp. 56, 61 (D.C.N.D.Iowa 1960), Judge Graven writing trenchantly under the law of Iowa. Additional word from the Supreme Court of South Carolina would have been a welcome guide, but we believe we are pursuing its policy. As that court and the Maryland court have noted, opinion on the subject is divided. See too, Gullborg v. Rizzo (3 Cir. 1964), 331 F.2d 557; but see Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964). Unable to embellish the learning of these decisions, we rest our determination upon the statutory and decisional law of South Carolina. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Of course a rule fixing survival as the determinant, rather than viability with which the Supreme Court of South Carolina began its resolutions of the liability issue, has the appeal of simplicity. It might aid the judiciary but hardly justice.
It is suggested that compensation for the loss of the child can be recovered by the mother as part of her reimbursement for physical and mental suffering incident to the still or premature birth. But the South Carolina death statute is of wider purview. It encompasses loss by the parents of the companionship and affection of the child. § 10-1954, South Carolina Code of Laws (1962); Johnson v. Charleston & Western Carolina Ry., 234 S.C. 448, 108 S.E.2d 777 (1959); Mishoe v. Atlantic Coast Line R.R., 186 S.C. 402, 197 S.E. 97 (1938). Pecuniary [78]*78damages to the mother in her action for injuries to herself would not seem to include this intangible item, and certainly not the father’s anguish. The weight to be given to these items, however, is for the trier of the case on the merits, not a factor in the right to maintain the action.
The complaint of the appellant-administrator of Baby Todd stated a cause of action, and it should not have been dismissed as insufficient in law. The action will be remanded for trial.
Reversed and remanded.