*1 controlling claims are the factors in the Transport case. Motor Southwestern Co. EXXON Appellant, CORPORATION, Weathermakers, Valley supra, pp. v. 604-5. v. cross-point attorney’s fees is
Johnston’s Sue BRECHEEN, Appellee. denied. No. 16407. trial in en- court erred hold that the We Appeals Texas, Court of Civil of tering judgment Johnston (1st Dist.). Houston damages for the $10,000.00,as amount jury’s of Meadow’s foal Jan. loss 1975. $22,500.00 damages for Mead- as award Rehearing Denied Feb. 1975. ability produce sound ow’s diminished ' in the healthy is excessive foals therefore, We, re- $4,500.00. amount of judg- trial court’s
verse and remand
ment; appellee if provided, that shall remit $14,500.00 within aggregate sum
said hereof, date the trial days
ten from the be reformed so as to judgment will
court’s shall awarded the appellee
provide $18,274.00 in the event such re-
sum of filed, judgment timely
mittitur is affirmed. Rule court will be
trial If such Procedure.
Texas Rules Civil period within said is not filed
remittitur
time, reversed and re- the cause is ordered trial.
manded for new OF REMITTITUR
ON FILING December opinion
In our filed of the trial court judgment
we ordered the provided that if the
reversed and remanded aggre-
appellee file remittitur days
gate $14,500.00 within ten sum of date, trial judgment
from said court’s provide reformed so as to ordered appellee awarded the sum of should be
$18,274.00, judg- reformed the and as so
ment of trial would be affirmed. court
Appellee suggested remittitur has filed $14,500.00 provided. the time within accordingly judg-
It is ordered that the
ment of is reformed so as to the trial court $14,500.00 ag-
deduct said sum from the
gregate appellee amount awarded said
judgment and so the total amount judgment, under said appellee
awarded to $18,274.00and, reformed,
as is the sum reformed, judgment of the trial so
court is affirmed. *3 Houston, Zapata, McGee, D.
Eino Robert appellant; Fulbright Jaworski, for David & Beck, Houston, appeal only. on J. Glenn, Houston, Stovall, Allen Frank Abilene, appellee. for COLEMAN, Chief Justice. damages This is an action Statute, Article Vernon’s Survival Statutes, with a combined Annotated Civil Act, Arti- Wrongful Death suit under entered seq. judgment was et A cle 4671 verdict. on a based plaintiff for the Bre- William D. March On his em- tank truck cheen, Jr., driving Company, arrived Transport ployer, Oil Baytown refinery. 5 of Humble’s Gate No. driver for tank truck had worked as He in Ab- headquartered years. many He cargo was Ordinarily his ilene, Texas. trips previous two made He gasoline. had Baytown refinery. entering Baytown After the first premises trip regulations were changed and he requested. Eighteen information sign sign out. signatures different appear in Column 1. . premises entering in,
Before this oc- After signing Mr. Brecheen drove stopped at casion Mr. rack, loading truck positioned it for pro- gate printed signed form in. The loading loading and climbed stairs onto the signing in was headed “General vided loading approximately rack. The rack was Acknowledgment Regarding Release and to six long, high feet 15 feet five Traffic and General Instructions.” This feet There wide with stairs at both ends. printed heavy type in red in were telescopic un- loading six each chutes on printed large derlined. Also in red and in loading side of the A loading rack. chute heading letters immediately below the was: is a 3-inch tele- pipe aluminum *4 scope. rack, standing While on the permission “In consideration of engaged an- in conversation with granted Refining me Humble Oil & driver, other truck at that a load- and time Company, Company, and N. Chemical J. ing rail- nearby chute a came loose from Company, Engineering Esso Research & began spray road to tank car hatch and request, Baytown my their to enter companion decedent and his with oil. in premises at time shown plants or I, by below, my signature 6 column by deposition testified Mr. Brecheen below, hereby and do release 1 column prior taken his death. He testified to Refining Com- & discharge Oil Humble and in the face the oil hit him flush and Esso Company pany, N. Chemical J. rail down against him and knocked Company, their Engineering & Research back was knocked He onto the walk. liability employees, and from all officers his and down to against rail the safety me, my legal representatives heirs and to filled eyes were His hands and knees. loss, injury, death to damage, or for all his explosion in like an with oil and felt or in my property caused in whole me or loading charge head. man Humble said negligence part platform them the shower took room Company, Refining Oil & N. Chemical J. clean He had be led because he off. Company, Engineering Esso Research & then couldn’t He was taken to see. Company, employees, agents their or eyes his and dispensary they washed where plant premises. I at said or while am eyes. drops ears some put and re- He truck was loaded. Meantime the below, “By my I signature column truck, weigh- it to the drove turned to the receipt copy acknowledge also signed he where then to exit ers and companies’ and Traffic above named inci- reported had called out. He 541-0015 Form No. Instructions General employer instructed him dent to his who read and hereby I have state day. to a not to He then drove drive instructions.” understand said had night. The doctor spent motel and numbered black six printed in are Below headache, but capsules given two for him “Sig- legend 1 bears the Column columns. eyes night. them that His he didn’t take plants entering Baytown nature ringing. were and his ears bothered him legend premises.” bears Column morning “Company Employer Represented.” he drove Comanche The next 3, On Number”; the headache tablets. took Column "Vehicle License where he he 4, to Abilene Number”; Comanche Col- the drive from Column “M. D. Order 5, “Entry 6, by”; anything. umn Authorized didn’t remember That he night Column 7, Date”; “Depar- “Entry completely went Time Column out head and hold called Below the column head- wife couldn’t him down. She ture Time Date”. eighteen signature help. trying her for was ings are lines for the brother He put Jr., go contrary on his clothes to to work. He fell T. Brecheen to act to his own will; off the bed time free or two. next the release was executed Sibley. he morning employment op- went to Dr. Thereaf- circumstances of pression, ter bargaining position he visited several inequality medical doctors who complete physical parties, found his medical between the no cause for economic problems. disparity parties. began visit- between the further On She June Summers, ing family practitioner, alleged Dr. supported release was not who psychiatry adequate had trained in as a reasonable consideration; resident physician had fourteen months. He deceased was at all times material acting agent devoted ten as an employee about of his time for of Oil 25% years Transport patients psychiatric prob- having Company, any and that consid- every lems. Dr. him eration passed Summers saw two for such release to his em- ployer weeks awhile and not weekly. and then to the defendant. The On plaintiff December alleged ten further months the release after the accident, public policy. Mr. Brecheen void for reasons admitted Psychiatric Timberlawn Hospital where Prior voir dire examination of discharged January treated and panel and before evidence diagnosed He was as having 1971. a re- presented been plaintiff moved type schizophrenia. sidual February On defendant court to instruct counsel given follow-up 1971 he was exami- stating and their witnesses to refrain *5 Peden, nation by treating Dr. Timber- or bringing to the attention jury psychiatrist. lawn Dr. Peden found that at any way the fact that William D. Bre- this time Mr. Brecheen was free from cheen, attempted had entered into or to symptoms acute schizophrenia. of Jr. Dr. Pe- enter any into release with the defendant den felt Mr. Brecheen had recovered from purport- which the deceased released or schizophrenic acute episode and recom- any ed to release the defendant from liabil- mended that he return Au- to work. On ity legal neg- damages arising out of its gust this suit was filed Mr. ligent while he was on acts or omissions 19, 1972, Brecheen. On December property of said defendant. premises accident, months after the Mr. Brecheen trial counsel During the course of the wrote a coherent wife, suicide note to his requested per- defendant trial court to went garage into the with a rifle and took present mit him to matters certain his life. jury. After court in the absence February On a suggestion jury of he then stated had been removed death was filed and Sue Brecheen into moved tender to the court that he desired to that the suit be continued in her in- name concerning the release testimony evidence dividually community as produced survivor and as liability. After evidence of representative and all beneficiaries execution establishing the the court before Wrongful of the deceased under the Death Brecheen, the of the release Mr. release petition Act. An amended was thereafter was marked and offered into as an exhibit filed in the name of Sue Brecheen as bill It admitted on the evidence. was then plaintiff. The defendant filed an answer Defendant exceptions of the defendant. which plea contained a that Mr. Brecheen purposes again for all exhibit offered the company by released the signing the to the be exhibited except that it not instrument, previously described, when he in their any proceedings nor referred to plant. plaintiff entered the filed is it then stated presence. The court supplemental alleging answer that the writ- in limine. per motion as admitted ten release was executed that time under circum- heard at testimony was No duress, stances of in exclud- coercion and action support both mental the court’s would physical, causing deceased, ing the release. William employer only reflects that the is there no evidence as to the actual record relationship Transport, Bre- knowledge Brecheen has a of Oil Mr. business employer, requirements impor- with the defendant of cheen’s as to the considerable plant, employer. matter of into the there is no tance to said It entrance knowledge Transport Company is a evidence that Oil common defendant employment large entity, required driv- and successful business condition of its trip Baytown ers make refin- might be inferred that is a substan- to the there disparity power ery. tial in the bargaining defendant, Brecheen, Bre- and Mr. trespasser A on land is a employer. It matter cheen’s also land, who, title having without knowledge premises common that the owner, entry consent of the true makes process- which are located facilities Trespass, Tex.Jur.2d, thereon. 56 Vol. petroleum products are ing storage of p. right the defendant had the 11. Since extremely as- potentially This dangerous. Transport deny employees and its Oil pect fully of the case has not been devel- entry premises, appear into its it would oped evidence, is evidence but there company right have the also spills regularity. occur with oil some its to condition invitation enter by eigh- Exhibit 1 signed Defendant’s premises those a release willing sign teen representing drivers differ- seventeen liability unless such action would companies. ent with the together This fact contrary to public policy of considered supports the
testimony of Mr. Brecheen this state. that all non-employee conclusion drivers premises entering motor vehicles were Allright, Roy
required In Inc. v. El sign The nature Lee release. Jr., ledge, Supreme relationship S.W.2d the business between Mr. employer Court stated: Brecheen’s and the defendant fully developed
was not in the evidence. may agree “Parties to limit the liabili- *6 ty for of one future negligence unless testimony is no While there direct on agreement violates the constitution matter, appears potential that it due to the public policy statutes or . bodily in the injury inherent serious operation, matter of the defendant as a “In whether a contractual determining adopted policy has de- judgment a business agreement limiting against liability is exposure liability by to reduce its to signed relationship public policy we look to signing of liabili- requiring the releases of parties. of this between the If because ty to a its business invitees as condition of disparity relationship there exists a premises. is their admittance to There bargaining power, agreement will required evidence that Mr. Brecheen was Housing Dallas be Crowell enforced. v. one sign in and at least sign out on 1973). (Tex. Authority, 495 887 S.W.2d prior trip that Oil other drivers for disparity power exists bargaining A of Bay- Transport cargoes also loaded ac- party in one has no real choice when refinery. There no evidence town is the liabili- cepting agreement limiting an read or that ” Brecheen had the release party ty the other . . . of he he instrument signing knew further stated: The court liability its released the defendant from in- negligence. heading own The specifies that question certified “The strument, Acknowl- “General Release and is in ‘a written liability the limitation edgment Regarding and General Traffic by the owner entered into’ agreement Instructions,” a might indicate to well the au- lot the owner of parking truck driver instrument referred is agreement If the written tomobile. is no bailor, if there signed by traffic Not conditions and accidents. deprive Transport Company. him of Oil
circumstance that would
of its busi-
90%
transportation
.
.
.
see no
ness
petroleum
a freedom of choice
we
products produced
avoiding
the terms
defendant.
It
satisfactory cause for
would be
of the contract.”
unreasonable
assume
Oil
Transport
willingly terminate this
would
Cavett,
Tex.
In McAshan v.
relationship
business
with the defendant
(1950), an
bail-
automobile
S.W.2d
requires
because
defendant
its em-
case,
ment
the court said:
ployees
sign
liability
a
for the
release
negligence resulting
injury
defendant’s
by Mrs.
sign
seen
“But the
was not
employee
to such
on the defendant’s
while
to her atten-
Cavett and it was not called
premises.
conclude that the evidence
We
read the identification
tion. She did not
in the record before us
sufficient
check,
directed
and her
was not
attention
relationship
show such a
between Mr. Bre-
general
printed
to what
it.
cheen,
employer, and
the defendant as
rule,
more re-
especially that of the
disparity
bargaining
to create such
a
decisions,
limitations of the
cent
is that
power
agreement
should
en-
signs
responsibility expressed on
bailee’s
relationship
forced. While the
between
not be-
printed
on claim checks do
Transport
is not de-
defendant
Oil
bailment
parts
the contract of
come
veloped fully,
knew that
and do not bind the bailor unless
”
employer’s
business was with
.
his attention .
.
are called to
90%
Humble, and, even if we assume
Authority of the
Housing
In Crowell v.
agreement
knew the nature of the
1973),
City Dallas,
(Tex.
Wrongful Statute (cid:127) . Suicide is an independent spray oil jury that the finding agency no that breaks the causal connection cause proximate incident was between the injury and the death if the defend- Brecheen. death of William mental condition victim, though no there fact that points disordered, ant to the is such that the suicide is the did that Mr. finding by jury result of voluntary choice; willful nature understand the but know if the insanity is so violent as to his he took when act consequences cause him to take his life through uncon- acting un- at that time or that he was life impulse trollable or in a delirium or by the impulse caused uncontrollable frenzy, der an there is a direct and unbroken suf- there spray incident and that oil connection between the injury and the findings support such ficient evidence death.” jury. submitted to the issues been
had the The court stated they did not find in the testimony “evidence tending prove a de- nothing in the reflect There is record to rangement or an insanity of such violence not the acci- issue as to whether or an as to cause to take his through life Jones question proximately caused the dent in impulse uncontrollable or without con- No requested. death of Mr. Brecheen was scious . volition. . . The evidence such issue was submitted. There was no conclusively proves that he poi- drank the objection charge by reason of the son purpose for the taking his life and failure to include such an issue. The de- thus put an end to his suffering, and Special fendant disregard filed a motion to that he deliberately, did so voluntarily and Issue judgment No. 6 and for a ob- non willfully.” stante veredicto in so far judgment as the recovery awarded Wrongful There was testimony medical in the Death Statute. This motion was denied. case and the court in discussing it Jones support In position appellant of its cites stated: v. Traders & General Insurance Jones Company, 140 Tex. 169 S.W.2d “Dr. Collins testified to his belief that (1943). compensa- This was a workmen’s deranged was insane or ‘out of Jones tion case in which the found that mind’ at the time when he took Tom injury suffered an Jones poison, expressed opinion as to no course employment, which was a is, derangement, extent of producing death; cause of his insanity such vio- whether his was of injury mentally caused to become un- Jones power con- destroy his to act lence as to balanced extent that he did not un- voluntarily. The doctor sciously and *8 consequences derstand the of his act in tes- and would not stated that he did not life; taking his own that such mental con- the rational at tify that was not Jones clearly death; dition was producing a cause of his the testi- from appears It time. taking and poison by that the of was the Jones that he reached mony of Dr. Collins caused his wilful and at- intention or ‘out insane that was conclusion Jones tempt injure himself. The court stated his belief of solely because mind’ of his question the for decision as being whether suicide commit anyone that who expert probative there is evidence of is not opinion value to balance’. Such ‘off facts on based probative sustain value foregoing opinion findings jury, of the of 30, 1970, to the on the recommendation relevant of Dr. proven and or assumed Summers, expres- Mr. merely Brecheen was admitted It issue. matter Psychiatric gen- so Timberlawn where he witness, Center the belief of sion of Peden, na- conjectural its was treated a eral, and Dr. certi- speculative James appreciable psychiatrist aid give no fied and the medical director it that could ture hospital, specialized submitted to of the in the jury on the issues who to the opinion practice psychiatry. The same is true of of In his treatment . expressed Launey, the substance and Dr. Pe- by Dr. examination of Mr. Brecheen “ opin- given. Neither den found . of which has been . . The content of his particular it, thinking paranoid a answering ion is of aid had tenor to but is, turns, primarily ruminations, case inquiry up which the it was made on of derangement at changes vision, victim’s about body, in his extent his dif- poison.” vision, fusion when he drank of migrating type the time his of headaches, appeared and other what to be Dr. Col- testimony of case In Jones image distortions of his of He himself.” opinion that that he was of lins was stated that Mr. Brecheen at that time did injury in an resulted accident the industrial capacity not have the adequately differ- pain intense such which caused Jones entiate was real between which and destroy time as to period of a over Jones’ interpretation what his was what was of of as a result and that sense of reason going gave impression his on. He mentally deranged. suffering was such he patient schizophrenia, suffering from symp- showed Brecheen changes In our case Mr. by certain which is “characterized day follow- individual, mental trouble toms of certain feeling mental Indications ing accident. things changes way they associate up remissions they with some other, way trouble changes in the with continued each taking approximate time until the suffering from make decisions.” Those history no Brecheen his own life. this illness are a ambivalent “have mental, psychotic, psychiatric previous tendency toward the or invest- withdrawal prior problems injury. or nervous themselves, ment of their within feelings Dr. Summers admitted Mr. Brecheen primarily, sort living in a dream world he where the West Texas Medical Center fantasy major- world.” He felt that the hospitalized September 16 from ity symptoms that Mr. Brecheen During pe- this through October 1970. paranoid presented paranoid had a tenor diagnosed deceased’s condition riod he gave opinion flavor them. He “ reaction being a. conversion relationship between there was a causal schizophrenic reaction.” underlying with an in Mr. Bre- schizophrenia that he observed schizophrenic “a reac- He defined the term spraying incident the oil cheen and being split mind in that one tion” as a in March of 1970. occurred appropriate in some could be realistic and life, aspects discharged Mr.
aspects in other When diagnosis discharge “very gave hospital be unrealistic such could type, which residual unlogical schizophrenia sick.” unappropriate continued there psycho- simply stated that this condition was He means functioning perhaps defective sis and it as follows: defined evidence of evidence showed He personality. “Well, psychosis, people, . in a manifest without disorders personality realistic, they react to are His incapacitating. were symptoms illogical manner.” things in bizarre and long favorable, “short prognosis term— guard- “long By guarded.” psycho- term— such a persons He stated that with term— prognosis long term *9 meant he dis- ed” reality from and are sis are removed when that testified He unpredictable. was thinking. December in their On oriented he psychosis first saw Mr. he considered Brecheen or schizophrenia from an event psychotic him to he necessarily be which means that not dependent upon the de- capacity reality gree had lost testing trauma, depends and that it rather capacity did not vulnerability have on the determine of the individual. going whether what’s on either him inside Mr. discharged by After Brecheen was
or around him was real. He considered Dr. Peden he continued to be treated from discharge psy- that at the time his time to time Dr. Summers. Both doc- aspect chotic of his illness had An cleared. prescribed tors had medications Mr. may be psychotic times, individual at and prescribed Brecheen. Dr. Summers vari- may at other times not be. drugs purpose ous combatting Dr. any history psychotic Peden could not his depression: elicit tendencies and his that any deposition Mr. Brecheen In laboring was his taken before death of form psychosis Brecheen, before incident Mr. Dr. testified that Summers the oil spray. got impres- suffering However Mr. Brecheen he was from a schizo- reaction, sion that phrenic depressive there was some evidence of conversion some feeling during disturbed spraying that time. He tes- that it into was caused the oil tified that Mr. Brecheen feared his brain August his face. On after was damaged and eyes feared that his gave anoth- Brecheen’s death Dr. Summers were damaged. He this believed to be true deposition. er last time Dr. Summers accept and could the reassurances on saw Mr. Brecheen was December his doctors that were things these not true. Mr. Brecheen informed 1972. At that time experienced great anxiety. He a deal of extremely he nervous him that was great He suffered a deal of discomfort walking he the floor tense and had been the form of He showed evi- headaches. that his stomach was with headaches being complained dence of tense and easy upset. he He said that had had stomach and distress in and it his stomach it and but couldn’t do job County with the opinion of the doctor that he felt him de- found quit. The doctor had to opin- what describing. he was was the It produc- spondent inability to about his be ion of the that these conditions doctor that felt that tively employed. At time he primarily were ideas that he had. same was the condition Mr. Brecheen’s things way These were were that past bothering him for been that had he saw at that He himself time. testified reac- schizophrenic years, is, that two discharged time that he him from reaction. It converted conversion tion and hospital some basic defects were symp- physical into tensions emotional present still and that his future condition vomiting, etc.” toms of “headaches depended entirely on kind of what stresses im- had not that condition He felt might subjected he be to. He further tes- February 8, He proved that 1972. on although tified might that Mr. Brecheen had that he during the time found stress, subjected thing not be any “the condi- treating that his been Mr. Brecheen may just come back at time.” He felt He stated: tion “waxed waned.” “ sprayed normal, getting oil face with just thought it was . . .1 production was a contributing factor to the usual, wane, peri- or and usual and low psychosis of a in Mr. Brecheen because through.” Dr. Sum- going od he was experienced. “The intense fear he when mers testified probably perhaps stress was related committed suicide December on die, schizophrenic going laboring fear that he was the fear under this was still blind, was going that he psychotic fear state that he had found going damaged.” to be brain He testified 12. He schiz- December testified that this person develops ophrenic whether state same condition *10 “Well, laboring just
the man had been under since it’s not—it’s just not— 10, opinion good your doesn’t It was based make sense to take March 1970. probability something that own life. And that not we on medical reasonable if relationship straight would do could think was a causal between we there Refinery improve could at visualize how we could incident the Humble Oil on 10, happy productive ourselves and be March and the suicide death of or individual.” Brecheen December 1972. He on that the accident at testified Houston “yes” following He then answered “a straw broke the camel’s so-called that question: He that if the incident at back.” testified Refinery had occurred Humble Oil not “Doctor, would characterized probability the reasonable medical is that thinking inability grasp disoriented he would have been laboring under the illusionary reality distinguished from schizophrenic condition on December type thinking ?” He that if 1972. further testified Mr. Bre- opinion Finally gave the based rea- he on laboring had cheen been under the probability that inci- sonable medical schizophrenic on condition December occuring Refinery dent at the Humble Oil opinion, 1972 in his reasonable based on proximate on was a cause March probability, medical would not there have Brecheen, stating: of the suicide of Mr. taking been a suicide of his life own Mr. Brecheen on He December 1972. “Yes, directly.” I think it was related testified that it him that was foreseeable to might ultimately take his Mr. Brecheen the time Bre- He stated that at of Mr. consequences own life as one he cheen’s last visit he never dreamed that schizophrenic condition. be suicidal his—he would would “because just seeming upset come in so I never that question relating to an In answer to a talked —he never had about suicide pro- explanation Mr. Brecheen’s mental But, visit, like last he anything that. laboring schizo- when under the cesses despondent time about not phrenic he committed condition at the time but, any more being job, he wasn’t suicide, the doctor testified: many, despondent I seen him than “ such like he was . He . . felt many times before.” always wife, on his burden way instead of in her around house that her husband Brecheen testified Mrs. think- earning money, and sick being out never talked spoke of suicide and never taking the he was ing process, thought as such. She testified about death by get- help them best course that would no there was days just before his death ting rid of himself.” that she change in condition sudden see; so far his mental condition could question as to In answer to a whether normal for him. She could tell was as she in- acting as a sane or Brecheen was get better his condition would testified that sui- person he committed sane at the time no reason. suddenly worse for get cide, testified: the doctor testimony from Mrs. Brecheen There was they family members and other things they debate “That is one of the any signs of mental had never noticed but, about, my feeling that a it is own prior part of Mr. trouble on their is insane when take ac- Baytown. After the to the accident at life.” own mental signs of there were constant cident his trouble although He the extent stated that the term insane he trouble vary time to time. meant: *11 pain After Mrs. him lieved discovered of the intense he suffering, was Brecheen. dead, she found a note the kitchen ta- and that he rational immediately was be- poison immediately This read: ble. note fore took and after poison. he took you I hate “Dearest Sue. know me. 455 Restatement 2d Section of Torts I I will get don’t know how better. You provides: will be better without me. Tell Pam and David, Daddy them and I love Mother “If negligent actor’s so conduct very help It if let might you much. brings insanity about the delirium of boat, and pickup have the sell bank as to another make the actor liable the house and move to town. Let David it, the actor is also liable for harm done Daddy my guns. have tools Let by the other himself while or delirious gun have his double barrel back. I am insane, insanity if his delirium or sorry, you May love so I so much. Sue. “(a) prevents him from realizing the you forgive you, me. I love God certainty nature of his act or Sue. therein, risk of harm involved Bill” /s/ quoted, The evidence and other evidence “(b) it impossible makes for him to record, in clearly support finding a impulse by resist an caused his insani- that as a result of accident of March ty capacity deprives which him of his Mr. Brecheen suffered ill- mental govern his conduct in accordance persisted ness which date with reason.” testimony death. Dr. Summers’ (b) the Restate- In a comment on clause the resulting accident and mental illness paragraph ment states: (c) taking was a cause of his his is weak- life testimony his ened somewhat further applies where the other’s “This clause right that no man his mind take deprive him of ca- insanity does not his testimony, however, his own life. This nature or conse- pacity to realize the given professional opinion as of a forming pur- his or from quence of act training psychia- medical man who had to himself and pose to kill cause harm try a resident for as 14 months appropriate to accom- means selecting spent subsequently approximately 25% un- purpose, his act is done plish his practice psychiatric his line” “along irresisti- impulse which is der insane years. ten He stated that there was about insanity prevented his has ble because opinion among medical men difference controlling his actions. his reason from as to whether one who takes his own life therefore, It, includes acts done degree mentally is to some unbalanced. sufficiently if are insane delusions Dr. We do not construe testimo- Summers’ preclude strong resistance such only ny being to the effect that the rea- per- insanity leaves to as the reason in- that Mr. son considered Brecheen’s laboring under them.” son sanity or cause of mental condition upon committing his rests his belief suicide provides: (d) Comment anyone who would commit suicide hand, other the fact that “On the mentally the de- unbalanced. In Jones to anoth- negligence causes harm mentally actor’s did not become unbalanced ceased at- subjects him recurrent er which made the result the accident as a direct does tacks of extreme melancholia case, mentally de- but became basis of the or other actor liable for death make the intense suffer- ranged as result deliberately in- the other his in- harm which sleep resulting from ing and loss inter- during a lucid upon himself flicts evidence that jury. is considerable There his life be- to terminate an effort to be re- val life in order took his Mr. Jones increasingly appropriate accomplish pur- of his dread of the means cause frequent pose. appears This of these attacks.” be established recurrence the contents of the suicide How- note. should be Section 455 Restatement ever, accept testimony, if Dr. we Summers’ following with the read connection sec- impulse the act was done under an insane provides: tion. Section insanity was irresistible because prevented his controlling reason “If the negligent actor’s conduct has *12 actions. any bodily so caused harm to another as it, make him liable for the actor is evidence does not establish that Mr. subject also liability for a during Brecheen took his life lucid inter- val, by his or that his action was caused “(a) shock, fright, or other emotional pain. may gath- to be It be desire free resulting bodily disturbance from the Bre- ered from the suicide that Mr. note
harm or from the conduct which caus-
despondent
cheen was
over
condition
it,
es
off
be better
and felt that his wife would
“(b)
bodily
resulting
further
harm
might
reasoning
well be
without him. This
from such emotional disturbance.”
product
mind. The ev-
the
disordered
a
get
that Mr. Brecheen did
idence reflects
(f)
provides:
Comment
under this section
psychiatric
interview.
better after
each
the tortious
“Where
conduct results in
physical symp-
that his
Dr. Peden testified
harm,
bodily
the
liable
makes
actor
toms,
pain,
from his ina-
resulted
it,
may
recovery
there
be
accept
assurances of his doc-
bility
bodily
resulting
further
harm
from the
eye
damage.
or brain
tors that he had no
emotional
Thus where a
disturbance.
testimony to cast
no medical
There is
pregnant
by
negli-
is
woman
struck
a
testimony of Dr.
upon the
Summers
doubt
gently
injured,
driven automobile and
Bre-
was caused
suicide
may
damages
she
recover
a miscar-
testimony that
mental illness.
cheen’s
shock,
riage resulting
fright
from her
or
with
overly preoccupied
he had never been
though
even
the medical evidence is that
suicide, or
death
had never discussed
solely
her men-
brought about
indi-
suicidal
tendencies
other
exhibited
injury,
tal reaction to the
and not
impulsive-
was made
cates
decision
injury itself.”
ly.
fright
testified that
Dr. Summers
recognized that
It
must
suffered as
which
a result
v. Trad
Supreme
Texas in
Court of
Jones
precipitated
the accident of March
Co.,
held that su
supra,
&
Ins.
ers General
as
a mental condition
result of which
a
breaks
agency that
independent
icide is
Mr. Brecheen
to think in
was unable
injury
between
connection
the causal
manner that
normal
would. This
condition
mental
if the
and the death
inability to
in a normal manner led
reason
disordered,
is such
victim, though
accept
him
a solution to his
suicide as
voluntary and
result of
is the
the suicide
result-
problems. There is tortious conduct
noted
previously
has been
It
wilful choice.
bodily
bodily
harm
ing in
harm
further
case that
this
is evidence
that there
resulting from emotional disturbance.
voluntary and
result of
was the
suicide
evidence
also
There
physical symptoms re- wilful choice.
Mr. Brecheen’s
voluntary and wilful
was not
solely
the suicide
mental condition in
sulted
insta
of mental
product
it was the
experts.
opinion
the medical
His
because
in
mental
requires that
deprive
bility.
problem did not
him of his
mental
Jones
de
as to cause
stability be so “violent”
capacity to realize the nature or conse-
through uncontrolla
life
take his
act,
ceased to
quence
purpose
or to form
word
himself,
impulse. We consider
ble
kill or cause harm to
to select
4675, supra,
to the rule.
If one’s
Tex-
“violent” adds little
amendment to Article
Act,
insanity
provided
life through
Wrongful
causes him take his
Death
impulse,
obviously
an uncontrollable
act
that evidence of the actual ceremonial re-
voluntary
marriage
surviving spouse
is not the result
and wilful
admis-
brought
Wrong-
choice. The decided cases do not establish
in actions
under the
sible
impulse”
the words “uncontrollable
ful Death Act.
any peculiar
legal
significance.
have
Article
16 of the Texas
Section
Dictionary,
Collegiate
2d
Webster’s New
Constitution,
Ann.St.,
Vernon’s
forbids the
ed.,
impulse as “a sudden incite
defines
application
legislative
retroactive
enact
action,
etc.;
spontaneous
insight,
ment to
ments,
relating
procedure
statutes
inclination; as,
impulse.”
to act on
Para
remedies do not fall within this constitu
graph
of Section 455 of the Restate
(b)
prohibition. Regal Properties
tional
v.
previously
appears
quoted
ment
to be
Donovitz,
(Tex.Civ.App.
S.W.2d
legal definition
An
sound
of the term.
act
*13
1972,
—Dallas
writ ref. n. r.
v.
e.); Holt
product
impulse
an
is the
of
irresistible
if
Wheeler,
(Tex.Civ.App.—
Appellee states that the Texas refusing trial Wrongful wholly court erred Death is a crea Statute The law, thus, jury testimony integral admit before ture of the is an Brecheen, appellee, part that she was cere of substantive law of this state. Sue monially Aviation, Inc., Mustang remarried after the death of Wil Marmon v. S. Brecheen, (Tex.1968). liam she was so contends that D. W.2d 182 She Jr. amendment, 4675a, supra, married at the After the mate time the trial. Article Brecheen, prior rially impairs death of Mr. and diminishes vested case, legislature to re right trial of this widow of the deceased 4675a, damages wrongful legal of Texas for the State enacted Article Ver cover full Statutes, her husband. con- non’s Annotated Civil as an deceased She death pro following operate sider “the the statute must elements and none eludes that care, and, therefore, other; maintenance, apply spectively support, serv- ices, advice, wrongful death which had counsel and contributions of action pecuniary prior to the effective date value that Brecheen would occurred Sue probability ra further submits that the statute. She reasonable have received Brecheen, Supreme during tionale of the Texas Court from William D. Jr. Copes, 155 Tex. lifetime had he re- California v. S. lived.” evidence (1958), applicable injury here. flects that of March after W.2d Supreme frequently confronted There the Court was Mr. Brecheen was in a alone, question depression, state preferring with the of whether California to be wife, uncommunicative, statutory being brought suspicious in Texas lawsuit Texas was controlled the California or and that on occasion threatened her one Supreme pistol. statutes of limitation. The Court with a record also reflects portion during stated: substantial time however, jury, work. The unable to right creates a “Where statute evidently except in- concluded that for the incorporates upon also limitation instability resulting mental suit to be time within which the marriage death would have continued qualifies right brought, the limitation and Mr. would have contributed part so that it becomes a substan- care, substantially regard wife procedural law rather tive than ...” maintenance, services, advice, support, concerning the re- counsel. The evidence *14 question, relating in to The statute lationship plaintiff her between the de- evidence, procedural and admissibility of prior ceased husband to the incident result- nature, all tak proceedings remedial in ing fully supports finding in this suit the pending litigation in were thereafter en say, by jury. the cannot there- made We thereby. Phil v. governed H. Pierce Co. fore, merely that because Mrs. Brecheen Watkins, supra. longer no had remarried and had need advice, counsel, support of the services and stat by a right given of action A husband, they re- her former would have time, away even may taken ute be The the of the award. duced amount have proceedings it accrued and after has may provides jury that death statute the it. enforce National to been commenced they damages propor- give such think Ex Corp. Phoenix-El Paso Carloading v. injury resulting from the tionate to the 564 141, press, 142 Tex. 176 S.W.2d recovery pe- is the The measure death. of by right of created (1944). action If by of the cuniary loss reason sustained by re terminated act can be legislative monetary death, is, present value the that filed a case has been peal act after of that plaintiff had a rea- of that the benefits the created, it rights so seeking to enforce the expectation from the of receiving sonable could plain legislature the would seem in- deceased, This had he not killed. been creating right of action the the amend act money everything that only not cludes it as accruing to limit the benefits Tex.Jur.2d, money. in 17 can valued testimony oth by making admissible which 586; 43, Act, p. by Wrongful Death § been admissible. erwise would have Co., R. & v. International N. McGown G. (1892). 80 Tex. 20 S.W. 85 trial in The error of the court testimony refusing admit the establish in December died time plaintiff’s marital at the ing the status January 1974. wife remarried require of a reversal of trial does not the had the say that prepared We are plaintiff’s damages accrued this case. The remarried Mrs. Brecheen jury known trial the of The death her husband. her hus- of year the death they after jury the could con- about one charged court
1 «5 4675a, band, probably supra, change the the it would have reduced intended estab- of damages awarded to her. We lished rule for ascertainment amount say damage by plaintiff trial in a cannot error of the court suffered probably wrongful to and did cause death action. Under evi- was calculated improper judgment. dence in this case the fact of the remar- the rendition an
riage properly Mrs. Brecheen could not by jury in miti- have been considered by required This conclusion gation damage of the suffered her. well rule in this state that established Railway Younger, Co. v. Tex. remarriage surviving spouse, of a or the presume (1897). thereof, S.W. 1121 We cannot possibility not affect does jury would have been influenced wrongful damages recoverable process deter- this evidence spouse. As a corol death the deceased mining damages, the amount of lary (prior this rule enactment of showing jury was un- 4675a, absence of a sur supra), Article of the evidence sympathy duly for a be- influenced remarriage viving spouse’s was not admis widow, reaved we are unable to determine only it for the sible where was offered testimony that the exclusion of purpose Rob damages. A. mitigating J. jury. have affected the verdict of the Sons, Ellis, inson Inc. v. 412 S.W.2d (Tex.Civ.App.—Amarillo writ ref. n. e.). r. find two cases which evi We appellant jury found that the remarriage surviving dence proper inspection failed make spouse was admitted. In each of these rope spout to tie the used cases the trial court instructed the person using tank hatch as a railroad car they consider, in mitigation should not done, ordinary would have and that care damages might allow to proximate failure was a cause of such plaintiff, remarriage. the fact of her question. appellant con occurrence Ry. Stewart, Texas Electric v. 217 S.W. is insufficient tends that the evidence (Tex.Civ.App.—Dallas writ findings. There was evi support these ref.); Corp. Dixie Motor v. Shiv Coach Daniello, employee Michael dence that
ers,
(Tex.Civ.App.—Fort
rope prior tied to the accident INSURANCE MUTUAL MOBILE COUNTY al., Appellants, any “exceptional inspec- et did not make COMPANY rope. inspected the He No one else tion.” v. rope broke not know whether did CORPORATION, AGENT SOUTHERN merely testified came loose. He whether Appellee. way only rope tested No. 1111. yank There is no evidence it. rope subjected to unusual strain Texas, Appeals of of Civil Court prior question. incident in stress Dist.). (14th Houston well have concluded jury might Jan. 1975. inspection rope would have proper aor a weakened condition shown either Rehearing 1975. Denied Feb. is sufficient loose The evidence knot. issues support jury’s findings to the
question. judgment is affirmed.
EVANS, concurring. J.,
EVANS, (concurring). Justice majority opinion and with the
I concur brief addendum to voice
make this Coulson,
view, expressed earlier Justice Employer’s Insurance concurring Texas Saunders,
Association v. 516 S.W.2d
Tex.Civ.App. (14th) — Houston & rule v. Traders announced Jones Co., supra, should be Insurance General light today’s under
considered in the
standing of human behavior. distinguished from the
As factual situa- Jones, is evidence in case
tion there this *16 irrationally and “with-
the Brecheen acted taking volition” in his own
out conscious produce A may per- in a
life. tortious act depressive
son a mind to the de- state of
gree perceive is unable to reality
with a the value life sense of Thus,
to himself and to others. without so, may
rational basis for decide doing
there is no benefit the continuation of my destroy
his life and act In himself.
opinion there was sufficient evidence in
this case that Brecheen’s de- state mind
prived “capacity him of his govern
conduct accordance with reason.” Re- 2d,
statement of Torts 455(b). Section