Summary
stating that in diversity case, federal courts cannot alter settled law of forum state regardless of modern trend in other jurisdictions
Summary of this case from Karl Rove & Co. v. ThornburghOpinion
No. 17535.
April 23, 1959.
Thomas A. Sneed, John J. Watts, Odessa, Tex., for appellant.
Jack Little, James Little, Elton Gilliland, Big Spring, Tex., Little Gilliland, Big Spring, Tex., of counsel, for appellees.
Before TUTTLE, CAMERON and WISDOM, Circuit Judges.
This appeal presents the single question whether the trial court correctly held that no cause of action arises under Texas law for injuries to an unborn child.
Appellant concedes that the only Texas decisions, Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347, 78 S.W.2d 944, 97 A.L.R. 1513, and Lewis v. Steves Sash Door Company, Tex. Civ.App., 177 S.W.2d 350 (writ refused), have held that no such cause of action arises. Contending that the trend of modern decisions in other jurisdictions is towards a more liberal rule, appellant asks us to hold that the Texas Court would today adopt a different rule. Under the principle of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, we cannot do this. In a diversity case we are bound to apply to local law on substantive matters. See Polk County, Ga. v. Lincoln Nat. Life Insurance Society, 5 Cir., 262 F.2d 486.
The judgment is affirmed.