266 F2d 572 Turnknett v. H G Keaton

266 F.2d 572

H. H. TURNKNETT, suing as next friend for -is minor
daughter, Tresa Lynn Turknett, Appellant,
v.
H. G. KEATON and Grady Acuff, d/b/a Three League Gin Company
of Lamesa, Texas, Appellees.

No. 17535.

United States Court of Appeals Fifth Circuit.

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.

PER CURIAM.

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1

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.

2

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.

3

The judgment is affirmed.