*1 Appellant of the incapacity. knew Ground Error Two is overruled.
The conviction is affirmed. COMPANY,
GULF STATES UTILITIES al., Appellants,
et REED, al., Appellees. et
No. A14-82-813CV. Texas,
Court of Appeals of (14th Dist.).
Houston
Aug. 1983.
Rehearing Sept. Denied 1983. *2 jury awarded Johnson, Jr. in
future contributions Vernon
have made to
probability
age
his mother
reached the
after he
David Kreager, Orgain,
Tucker,
Bell &
eighteen,
$10,000 for
the conscious
Crawford, Jr., Wells,
Walter J.
Peyton,
anguish he suf-
physical pain and mental
*3
Beard,
Hung Crawford,
Greenberg,
&
Beau-
fered
occurrence. The
as a result of the
Billeaud, Houston,
mont,
Richard D.
$500,000
for the
appellee
also awarded
appellants.
loss of the
son and
society of her
Additionally,
for her mental
Joseph
Steele,
Provost,
R.
Umphrey,
' awarded her
future medical ex-
Doyle
McPherson,
past and
&
Arthur,
Port
penses
$45,000,
lost
past
earnings
appellees.
$15,000,
the incident.
resulting from
BROWN, C.J.,
Before J. CURTISS
twelve,
In points
through
of error one
ELLIS,
DRAUGHN and
JJ.
appellants
trial court erred in
assert
the
allowing
submission and
pleadings, proof,
ELLIS, Justice.
recovery
appellee’s
of damages
personal
injuries,
not in
because she was
the zone of
Appeal is taken from a judgment award-
danger at the time of the accident. Appel-
ing damages to appellee,
Reed,
Paula
based
damage awards,
lants contend the
on
which
a jury verdict and denial of appellants’
appellee’s
anguish,
include
mental
motion for judgment N.O.V. We affirm in
future
hospital
medical
expenses,
lost
part, and reverse and render in part.
earnings, and
earning capacity,
loss of
are
Appellee,
Reed,
mother of the de-
not recoverable as a matter of law.
minor,
ceased
Jr.,
Vernon Lee Johnson
Further,
error
thirteen
brought suit
the
under
Wrongful Death
through twenty-one, appellants argue that
Act, TEX.REV.CIV.STAT.ANN. art. 4671
the trial
permitting plead-
court erred in
(Vernon Supp. 1982-83) and the Survival
ings, evidence, and
of damage
submission
Statute, TEX.REV.CIV.STAT.ANN.
art.
society,
issues for
this award is
(Vernon
1958).
father,
not recoverable
for the death
by parent
Lee Johnson, Sr., intervened in the suit.
a child
wrongful
under the
death statute.
Defendant-appellants, Gulf States Utilities
Although
Wrongful
Death
Texas
Act
Company and
Telephone
Southwestern Bell
does not expressly
recovery
pecuni-
limit
Co.,
stipulation
entered into a
and waiver of
loss,
ary
i.e. the
value of the
pecuniary
proof of their
but
negligence,
reserved the
contributions,
child’s services and financial
right to contest damages. The
giv-
incident
care, support,
less the cost of his
and educa-
ing rise to the suit
was
death of appel-
tion, the courts of this state have so limited
son,
lee’s
Johnson, Jr.,
13,
Vernon Lee
age
the statute
supreme
since the
court’s hold-
who was electrocuted when he crawled un-
Walker,
ing
in March v.
48 Tex.
der a metal
building
retrieve a Frisbee.
(1877). March,
supreme
court held
The building was electrified because a live
Wrongful
because the Texas
Death
wire
owned
Gulf States Utilities was
Act
patterned
was
after Lord Campbell’s
lying on it. The wire was attached to a
Act, an English law which restricted a re-
Southwestern
utility pole,
Bell
which had
loss,
covery
to pecuniary
under the
been damaged, causing the
sag
wire to
onto
Texas statute would also be measured by
the building. At
time
of her son’s
pecuniary loss.
accident, appellee
visiting
her husband
town,
another
approximately twenty-five
As
recently
supreme
minutes away. Appellee’s husband
her
left
told
loss rule.
pecuniary
undisturbed
boy’s death,
at which
Bedgood Madalin,
time Mrs. Reed
(Tex.
tortfeasor’s We held Sanchez, in the instant affection, comfort, compan- appellee we hold solace, dam general assistance, re- is entitled to recover ionship, society, and sexual case for her men- real, jury her ages lations were loss- awarded personal direct and However, (Tex.1979). we We overrule hold that S.W.2d separate error point twenty-one. award of to Mrs. Reed for her past and future lost expenses, medical twenty-two, appel of error earnings, and are earning capacity loss the trial erred in overrul lants claim court not recoverable elements of damage sub- ap- motion based on ing their for mistrial mitted under the case. circumstances of this argument. They ar pellee’s improper jury error, We points sustain appellant’s only mistrial made im gue that the motion for special the extent Pau- such retired mediately after the was ade jury injuries la personal Reed’s were awarded. preserve error, timely because ob quate to each argument jection instruction We overrule of er ap- effect of could not cure the cumulative through ror thirteen twenty-one, and hold Hemmen pellee’s improper argument. See appellee was also entitled to recover dam Skibo, 14 (Tex.Civ. way v. S.W.2d ages for the of society of her son. n.r.e.). 1973, writ ref’d App.—Beaumont While plaintiffs only sought Sanchez objected arguments several Appellants recovery for mental feel the anguish, we objections All by appellee’s made counsel. court made it clear that recovery would sustained, excep made were one allowed under the statute wrongful death tion, to disre instructed both mental and loss of com gard objections the statements. No panionship society. nothing We find to the other made numerous statements the court’s opinion plain indicate While we complained appeal. agree of on tiff is required to chooseone recov form of *5 arguments that the cumulative effect ery Schindler, over the other. Sanchez v. have exceeded the complained supra. See also Independent Madisonville proper argument, appellants bounds of have School Judy District and L.P. Polk Gail the showing failed to sustain the burden Kyle, 658 149 (1983). S.W.2d was harmful error. Standard argument Reese, point In TEX.R. supra; of error Fire Insurance Co. v. twenty-one, appellants assert the 434. We overrule of error overruling trial court erred in CIV.P. their objections plaintiff’s to state- opening twenty-two. ment and in denying their for mis- motion twenty-four through of error
trial statements, based on improper because thirty-one, appellants contend the court such statements were cause calculated to failing clearly to define and deli- erred in and did cause an improper verdict. We neate all the sub- elements disagree. the including to the term men- jury, mitted elements, as sub- anguish, because such Appellants moved mistrial for after mitted, would of double permit objections several had been to cer lodged addition, they argue the court damages. tain comments made during appellee’s jury to instruct the on miti- failing erred in opening exception, statement. With one regard factors with gating the objections were either or sustained agree with these society. We do not counsel withdrew his re statements. When contentions. quested, the jury court instructed the Issue submission of Upon Special However, disregard such statements. jury following: found the objection overruled any, paid sum of if if now money, What opposing comment, only counsel’s “the cash, preponderance you do find from thing that Gulf States Utilities and South fairly and reason- of the evidence would western is mon Telephone Bell understands parents for their ably compensate the ey,” prejudicial large corporations. loss, by caused any, proximately if argument While this does not whole meet Johnson, of Vernon Lee Jr.? death such heartedly approval, with our we hold er argument does not constitute reversible elements and none following Consider Reese, ror. Fire Insurance Standard Co. v. other: Lee John- result of death of Vernon
(a) the if earnings, any, which in reasona- Johnson, ble Lee Jr. probability son, Jr. age would have before reaching made cents, any. if in dollars ANSWER 18years, and the reasonable cash value $ 25.000.00 ANSWER services, of such if any, in reasonable necessary (f) expenses the reasonable probability have been rendered care, which hospital any, medical and if minor in parents every- aid of his will, probabili- Paula Reed in reasonable day reaching affairs before of 18 age require the future as a result of ty, less years, the reasonable and probable Johnson, Jr. death of Vernon Lee care, education, expense support, his cents, any. if in dollars ANSWER time; during and maintenance such $ 20.000.00 ANSWER cents, any.
ANSWER
dollars and
if
$
-0-
earnings in
(g)
ANSWER:
the amount of lost
Reed,
as a
any,
if
sustained
(b) the reasonable cash value of such fu-
Lee John-
result of the death of Vernon
contributions,
any,
ture
if
the mi-
which
son, Jr.
nor in
probability
reasonable
would have
his parents
made to
after he would have
cents,
any.
if
in dollars
ANSWER
years;
reached the
of 18
age
$ 15.000.00
ANSWER
cents,
any.
if
ANSWER
dollars
of the loss
(h) the
cash value
20,000.00
$
ANSWER
which,
rea-
any,
if
earning capacity,
(c) the
reasonable cash value of the
sus-
Paula Reed will
probability,
sonable
if
society,
any,
par-
sustained
the death
a result of
tain in
future as
ents as a result of the the
of Ver-
Johnson, Jr.
Vernon Lee
Johnson,
“society”
non Lee
Jr. The term
cents,
any.
if
in dollars
ANSWER
range
embraces broad
of mutual bene-
$
-0-
ANSWER
fits each
member receives from
family
dam-
not
award
was instructed
existence, including
the others’ continued
bereavement,
hostility,
ages
anger,
love, affection, care, attention, compan-
sorrow, fear,
revenge.
mourning,
comfort,
ionship,
protection.
*6
cents,
in
any.
ANSWER
dollars and
if
No.
Special Issue
Upon reviewing
$500.000.00
ANSWER
charged
1,
properly
we find the court
and, ex
damages,
of
each element
jury on
amounts,
any,
if
in
any
As to
awarded
disallowed,
special damages we
cept for the
1,
(a), (b),
Issue
subissues
and
Special
distinct
sufficiently
element was
each
above,
(c)
you
apportion
shall
such amounts
argu
Appellants’
recovery.
double
avoid
following persons:
between
refusing
their
erred
ment that
percentages
ANSWER
is
anguish”
of “mental
definition
requested
100%
REED
PAULA
cases, nor do
cite no
They
merit.
without
100%
must
where such definition
any,
know of
we
JOHNSON,
legal
a
0%
this is not
SR.
We believe
LEE
given.
VERNON
and
term,
significance
ordinary
but is of
men-
(d) the reasonable cash value of the
a
that
contention
meaning. Appellants’
anguish,
Paula
any,
if
sustained
on miti
submitted
charge should have been
past
Reed
and which in reasonable
is
society
of
gation
future,
probability she will sustain in the
points
overrule
groundless. We
a
any,
if
as
result of the death of Vernon
through thirty-one.
error twenty-four
Johnson,
Lee
Jr.
cents,
any.
in dollars and
if
ANSWER
appellants
thirty-two,
In
error
$500.000.00
sup-
evidence to
is
ANSWER
claim there
insufficient
for Vernon
award
jury
port
neces-
(e)
expense
suffering. Alternative-
pain and
care,
any,
Johnson’s
medical
if
sary
hospital
and
have
remittitur. We
a
ask for a
ly, they
Reed in the
received
carefully
record,
reviewed the
was
culty sleeping.
placed
entire
and
She
on antide
ample
find
evidence
support
this award.
due
during her
pressants
hospital stay,
nature of
depression,
to the chronic
her
Generally, we
disturb
will not
a
necessary
was
for her to continue her medi
jury finding based
ground
on the
of exces-
her
period following
cation for an indefinite
siveness if there
any probative
evidence
recognize
put
release. We
that no one can
support
the award. T.J. Allen Distribut
value on the loss
one’s
precise dollar
Co.
ing
Leatherwood,
v.
da v. Ansley, 605 (Tex.Civ.App. charge included appellants’ request court’s —Corpus Christi n.r.e.). writ ref’d ed instruction not consider We find nothing our bereavement, offensive to sense of anger, appellee’s hostility, justice in this Testimony sorrow, award. fear, intro mourning, revenge duced that Johnson, Jr. felt con damages. We awarding points overrule pain scious from high- electrocution thirty-seven thirty-eight.
voltage wire approximately five assert, Appellants er point of seconds. In light of the intensity of such a ror that the trial court erred thirty-nine, shock, it is our opinion $10,000 is in way refusing appellants prospec to allow to ask excessive. any tive knew jurors they plaintiff by if thirty-three disagree. error her married names. We former through thirty-six, appellants assert on While have broad latitude counsel *7 $500,000 awards of for loss of per voir enable him to exercise his dire to society unlimited; and anguish for mental such is rights, right not emptory excessive, discretion, and there insufficient was it is to the trial court’s subject support evidence to such appeal awards. and will not be revised on unless Johnson, Lee Jr. healthy was a thirteen case of there is a clear abuse of discretion. year-old Loesch, when he died. He appellee’s was Texas Insurance Assn. v. Employers child, only close, and had a affectionate 435 (Tex.Civ.App. 538 S.W.2d — Waco relationship with Following n.r.e.); Reed, his mother. his writ ref’d Johnson v. death, appellee was John (Tex.Civ.App. admitted into Sea — Dallas ly Hospital Galveston, denied, in she n.r.e.), where re cert. writ ref’d U.S. 1197,31 for (1972). mained months. L.Ed.2d 256 approximately Appel five 92 S.Ct. diagnosed was and suffering jury panel, She as from a se lee to the was introduced depressive reaction, by during vere the voir dire examina precipitated present was introducing of her Appellee death son. had suffered a tion. The effects of prejudicial loss, weight severe several former names could be appellee by and had extreme diffi- with easily perceived upon questions will be called to deal outweighing any as bene- appellants fits to raised this decision. during by voir dire. We find discretion, no abuse point of overrule and of that The is precise holding Sanchez error thirty-nine. are recovera- anguish Wrongful Death Act ble under the Texas error, point In their last appel of a TEX.REV.CIV. the death child. lants refusing assert the trial court erred in 1982- (Vernon Supp. art. 4671 STAT.ANN. to allow that evidence shot and appellee 1983). killed a six or man seven months after her trial cause under consideration the son’s Appellants argue death. such 1(c) in- Special Issue No. submitted testimony relevant to show what emo to quiring impact, any, tional if an such occurrence “society” cash of the of the value had on with to her appellee regard past, was defined as a “Society” deceased child. present, future and mental condition. range family broad of mutual benefits each Appellee’s out psychiatrist testified of the member receives from the continued exist- jury’s presence appellee’s initial severe members, including ence family of the other depression requiring hospitalization was love, affection, attention, care, companion- death, caused her son’s as was her chron- comfort, ship, and verdict protection. A depressive ic condition. He stated that her $500,- judgment against appellants and mental state became immediately worse af- 000.00 the basis of this was rendered on ter the but shooting, significant long- 1(d) issue. the court Special Issue problems term resulted from it. While ad- value of the submitted the reasonable cash mitting testimony killing about past suffered and future mental have had probative assessing some value in of her Mrs. Reed as a result of appellee’s mental immediately condition $500,000.00 was found son. An additional thereafter, far any we feel value was out- by judgment by verdict and rendered weighed prejudicial effect such evi- “Mental this issue. against appellants on dence have provoked. would We overrule not anguish” was defined. error. defined, society, is included Loss of affirmed, The judgment trial court’s is ele- anguish” “mental and the term except the extent allows damage ments thereof should not be Mrs. Reed for her and future medical invite, if not so as to separately submitted expenses, earnings earning lost an- compel, recovery. a double “Mental capacity. portion judgment That constitute emo- guish” society” “loss of reversed ren- accordingly judgment constitute one tional which should distress appellants dered favor of on such items. wrongful death damages in a element of judgment otherwise is affirmed. would, therefore, ren- reverse and case. I affirmed part; Reversed rendered damages for loss separate finding der the part. consider, appro- under the “society” standards, of excessive- question priate BROWN, Justice, J. Chief dis- CURTISS finding on mental respect ness with senting.
Finding myself disagreement sup- both language There is Sanchez court, I holdings my some of the view. The portive contrary *8 of respectful like to dissent. The the Arizona my record noted that supreme had been inter- parties have favored court with citation Death Statute Wrongful authorities, com- most for loss of many respects, but in to “allow preted ... that these one, comfort and itself to a consid- and panionship save the case reduces Sanchez, anguish”. v. losses in mental eration of Schin- result impact Sanchez stat- 254. The court further at dler, (Tex.1983). 651 We 651 S.W.2d appear “Therefore, holding plaintiff that a our ed: courts that many to be the first of among
857 time may anguish period recover under for a Wrongful Death for Statute be society companion- shooting may incident. covering the It ship damages indicated, for true, mental appellees’ psychiatrist as the the death his or her applies minor child long suffered significant that Mrs. Reed to all future causes as well still in as those killing as a problems term result of her judicial process.” ruling Id. This latter however, being. another human The jury, would seem to indicate of these that all is the could conclude otherwise. The elements, affection, save love may be judge credibility of the of the witnesses considered; fails, however, decide the given testimony. to be their weight question whether the submission should be the jury may The fact is not have believed joint separate. good light this and with reason. expert, allowed, I being of the asserted and claims event, In any the court in states: Sanchez rule good apply cannot conscience judicial system “The adequate has safe- evidence, should though probative, guards prevent recovery of be because effect. prejudicial excluded on sympathy based or prejudice rather than fair just compensation plain- for the point. I sustain appellants’ would last injuries.” Sanchez, tiff’s at 253. S.W.2d Among these safeguards duty is our to re-
view the record as a whole so that we our judicial
exercise sound judgment and
discretion in ascertaining the amount which compensation
injuries sustained and treating balance
as excess. Having decided an upon amount
that would be reasonable compensation, the
court should authorize a remittitur
excess accordance judg- with its sound Flanigan ment. Carswell, v. Tex. LONGORIA, Appellant, P. Olivia 835 (1959). S.W.2d The court has failed this make assessment according to cor- Texas, Appellee. rect STATE standards. I agree my brethren the points No. 04-81-00388-CR. challenging the conduct ap- of counsel for Texas, Appeals Court of pellee do not reflect error. vigorous While San Antonio. effective, most of arguments proper. Those arguments im- approaching Aug. 31, 1983. propriety certainly reflect no harmful error Reese, under Standard Fire Insurance v.Co. 835 (Tex.1979). S.W.2d
I am unable to agree holding of with the
the court that the refusal trial court of the
to allow evidence that Mrs. Reed shot and
killed a man six or seven after her months
son’s death did not constitute er- reversible Ordinarily,
ror. in an wrongful action for the damages are fixed as time
of the occurrence made of suit and the basis
evidence of such a be entire- shooting would
ly irrelevant unless an basis independent Here, admission shown. Mrs. Reed
sought and obtained substantial