*1 Following appellant’s of commission vehicle, HOSPITAL
burglary of a trial court revoked HARRIS COUNTY DISTRICT, Appellant, appellant’s probation and follow assessed the ing twenty years sentences: confinement and conviction; burglary fine for each Reynaldo Paredes, ESTRADA, years convic Stella
ten
confinement for the theft
Joe
Landin,
tion;
years
Estrada, Mary
Debo
and ten
confinement and
Elizabeth
Luna,
Luna,
Anthony
Herman
burglary of
fine for the
a vehicle conviction.
rah
Martinez,
Luna,
Luna,
court
the four
Mike
trial
ordered
sentences
Armando
Individually
Luna,
consecutively.
Appeals
and as
run
All
Court
and John
convictions,
Surviving
of Kin
four
at
and Next
reversed and remanded all
Heirs
Law
Gonzales, Deceased;
judge was
Lin
holding that the trial
biased and
R.
of Carolina
Surviving
Individually
listening
Vega,
prejudged the eases before
da
and as
State,
Earley
Kin Carolina
evidence.
13-92-00332-CR). grant
We find our now decision to discretionary petition State’s review 202(k). improvident. Tex.R.App.P. See understanding, With this we dismiss the discretionary petition for review. State’s It ordered. is so OVERSTREET, JJ.,
MILLER and dissent. *3 Simms, Houston, Driscoll, Daniel
Mike J. appellant. for Barron, Edwards, M. Hous- Tom Patrice ton, appellees. C.J., OLIVER-PARROTT,
Before and COHEN, MIRABAL and JJ.
OPINION
COHEN, Justice. appeal This is an from a brought against appellant, survival action (the County Hospital Dis- Harris District trict), Texas Act. Tort Claims question is whether the District’s principal per- when one liability is limited killed, multiple but claimants son was claims, wrongful sur- brought two death and judge awarded total of vival. $200,000, equally two divided between the We this was error. causes of action. hold judgment by reform Consequently, we reformed, we reducing it As so affirm.
Facts 73-year-old Carolina January
On End West went to District’s Gonzales Bradberry, Bay- Dr. Clinic. John Medical physician, College Medicine resident lor pre- out-patient as an Gonzales saw baetrim, drug. a sulfa Gonzales was scribed drugs, day allergic to and the after sulfa baetrim, became sick and taking one she hospital. to another Gonzales went allergic reaction to the a severe days later. died suit, appellees settled filing Before Baylor College of Medi- Bradberry and $230,000. Appellees then sued cine for District, keep- in record alleging that errors per- and medical-clerical ing the nurses sonnel, eross-referenc- as well as the lack of ing allergy history trict, hospital phar- at the attorney as well experienced macy, prescription dispensa- caused the evaluating standpoint cases from the of hos- drug, tion of the sulfa which pital liability. led to Gonzales’ Although specif- she could not death. ically testify as to the clinics’ individual divi- duties, sion of she general was familiar with trial, In a non-jury found the nursing Hospital duties within the District. negligence percent District’s respon- was 35 appellee’s sible for damages, which totaled Moreover, Lessard testified she was famil- $350,000, granted judgment against the applicable iar with the standard of care for $200,000, District awarding nurses, particularly as to the standard of death claimants and regarding allergies care prescriptions. for the estate’s survival Appellees claim.1 example, For she testified after the doc- *4 appeal moved to juris- dismiss the for lack of patient tor has seen a prescrip- and written diction, but this Court overruled that motion. tions, discharge it was then the nurse’s inde- appeal This followed. pendent duty compare prescription to the contradictions, two, patient’s with the point chart appellant of error claims the allergies, such as bring any and to inconsis- judge allowing unqualified erred in an tencies to the doctor’s attention for correc- testify witness to expert. as an The District Further, tion. Lessard testified that after Lessard, contends that Deborah appellees’ discharge pre- nurse reviews the expert, nurse written qualified testify was not to scription compares chart, it to expert but an experience, because she had no sending patient before on-premises to the familiarity, or nursing certification in or pharmacy prescription, with the written administration, health care demonstrated no supposed patient nurse is to instruct the knowledge or familiarity transcription the caretaker what to do if there is an ad- procedures medication applicable or the stan- sum, verse care, reaction. the record reflects dard of nursing was not certified in administration, experienced Lessard was and familiar with testimony and offered no to the standard judge of care. The trial show here she was certified in health care admin- by allowing did not abuse discretion his her istration. testify expert. as an qualifies Whether a witness as an point We overrule of error two. expert is within the trial judge’s discretion will be reversed for abuse of discre five, In point appellant of error con Cooper, tion. Sears v. granting tends the trial erred in not (Tex.Civ.App. [14th Dist.] — Houston the District a appel- directed verdict because n.r.e.). nurse, nonphysieian writ ref 'd A even prove Appellant lees failed to causation. ar registered one who is not a nurse but is gues proof faulty there was no record familiar with the standard of care at another keeping caused Gonzales’ death. hospital, qualify experience similar can testify expert as a medical in a medical mal Appellees claim the evidence shows that practice Hosp., action. Johnson v. Hermann duty the District’s breach them record keeping, properly the failure to cross-check n.r.e.). prescription allergies, [14th Dist.] writ ref'd with known nurse need not be certified or familiar with the failure to Gonzales on how to instruct locale, particular reaction, allergic standard of care so proceed the event of an long proximately drug as the nurse is familiar with the stan caused the sulfa to be dis- Gonzales, hospital dard of at pensed allergic care another simi which caused the lar. Id. reaction and her death. Mao, physician who admit- registered
Lessard was a nurse with Dr. Chi C. years Heights Hospital ted to the emer- experience, including clinical four work Gonzales ingested drug, the sulfa experience Hospital gency within the Dis- room after she clinics finding. jointly severally 33.013 1. The District was liable for TexCivPrac & Rem.Code Ann. (Vernon percent Supp.1993). the entire as a result of the 35 late, it was main several times before too testified that cause Gonzales’ identified allergic was a a sulfa it was severe reaction to but not. Moreover, drug. Gonzales’ death certificate Loughron, Finally, and nurse Lessard aller- states cause death was severe witness, clinic testified that District’s drug. gic reaction to the sulfa there is if told what to do staff should have Gonzales factually legally sufficient evidence to drug. had adverse reaction she show sulfa caused Gonzales’ death. in- the staff should have Evidence showed medical attention Gonzales seek structed
We next consider whether there was any to an adverse 20 minutes hour negli within sufficient evidence that the nurses’ because, quickly, if the reac- dispensation of treated gence caused the the sulfa reaction drug. could reversed. Lessard testified tion be properly proxi- was a this failure to instruct Bradberry prescribing Dr. testified that death, because, if mate cause Gonzales drug, the sulfa he on the District’s relied sought properly been instructed and had had printout computer had showed Gonzales immediately her treatment after reaction allergies. computer one-page print- no started, possible re- been would patient given out sheet comes with file hold the verse reaction. We evidence patient. the doctor when he sees was sufficient. printout supposed sheet is to summarize the *5 chart, medical data contained in the so that point of five. We overrule error the doctor the does examine one, three, four, points In of error and entire chart. medical records clerk legal challenges factual and appellant the responsible including in- relevant medical sufficiency and chal- of the evidence also updated computer In formation in the sheet. findings the lenges implied some factual case, however, computer printout the on judge. trial top omitted the fact that aller- Gonzales was drugs, gic to sulfa a fact known the clinic request any did not find Appellant and in the the contained records underneath fact, ings of none were filed. we and cover sheet. necessary sup imply findings all the will Stamper, the 801 port judgment. proximate Lessard sole testified that the Worford 108, determining In 109 misprescription cause of the and was supports implied the whether some evidence negligent by recordkeeping the the District’s fact, only findings of we the evi consider nurses and staff. She fore- testified was judgment the disre favorable to and inconsistency in dence seeable that Gonzales’ contrary. gard all evidence Id. misprescription records could lead to the any legal will be affirmed on theo Specifically, death. Lessard testified that Id. ry supported the evidence. patient has after doctor seen and writ- prescriptions, discharge it is nurse’s ten one, point appellant claims of error independent duty compare prescrip- prove proximate cause. appellees failed patient’s with chart for contradic- tion point of same We overrule this error bring any tions and to inconsistencies to point five. we overruled of error reason clarify attention of the doctor to or correct. four, points appellant of error three rec- Bradberry Lessard and testified clinic damages challenges award of on four omissions and inconsis- ords showed several First, grounds. appellant claims there was concerning allergy that tencies Gonzales’ $350,000 damages. Appel- evidence of no em- should have been corrected District argues appellees offered no evi- lant ployees. pointing also testified that Lessard income, expectancy, of Gonzales’ life dence inconsistency any prescrip- out between damages. any testimony prove particularly important chart is tion doctor, give “con Bradberry, typically as the fact finder Courts resident such with awarding damages com- medical who had siderable latitude” opposed to a doctor wrongful death actions residency. personal Lessard testified pleted damages proved cannot be been those inconsistency could and should have 764 certainty. great
with County See Brazoria horrific. family One member described Gon- 827, v. Davenport, body 931 zales’ smelling as swollen and like 1989, writ); App. Dist.] no burned [1st meat. Another recalled how Gon- Hahn, Packing Leonard & Harral Co. v. 571 zales’ skin off once came when the bedsheet (Tex.Civ.App. Antonio supported was lifted. We hold the evidence — San n.r.e.). Here, writ judge ref 'd the trial damages award of on the found total and entered claim.
judgment against the District for
portion
points
We overrule this
of error
the survival
and for
claim
on the
three and four.
wrongful death claim.
District, appellees
suing
Before
action
survival
is the estate’s
Bradberry
settled for
Dr.
personal
claim for
and includes dam Baylor College of Medicine. The District
ages
pain
for the conscious
and mental an
defendant,
remaining
only
was the
and the
guish Gonzales suffered before her death.
judge
percent responsible
found it 35
§
71.021
Tex.Civ.Prac. & Rem.Code Ann.
damages.
argument
Gonzales’
In its second
(Vernon 1986);
Ledezma,
Levinge Corp. v.
error,
points
these
District
(Tex.App.
[1st
—Houston
claims that because it was the
defen
writ).
hospital
Dist.]
no
Gonzales’
bill dant,
we should assume the trial
as
was approximately
The evidence
percent
remaining
sessed the
of the re
gruesome
shows Gonzales suffered a
sponsibility against appellees. Consequently,
painful
days prior to
her death. The
appellees’
argues,
the District
caused
if
being
her to feel as
she was
burned
responsibility
barred because their
exceeds
conscious,
from the inside out. She was
her
percent.
See Tex.Civ.Prac. & Rem.Code
body
swollen,
was
and her skin
severely
(Vernon
33.001(a)
Supp.1993).
Ann.
*6
blistered, getting
day
from
worse
one
to the
Presumptions are made in favor of
next.
damages
We hold the evidence of
judgment,
against Worford,
not
it.
801
See, e.g.,
the survival action was sufficient.
pled
at
S.W.2d
109. The District neither
nor
($175,000
Levinge, 752
at 645
S.W.2d
award
proved
negligence.
contributory
The conten
damages
pain
of
suffering
decedent’s
and
tion has no merit.
upheld although he was conscious
and
time).
pain
only
severe
short
In
argument
points
their
under
of
third
four,
error three and
the District contends its
case,
In a
a fact
maximum liability under
the Texas Tort
may
family
finder
a decedent’s
award
dam
Act,
$100,000.
Claims
is
See Tex.Civ.Prac.
&
ages
anguish
for their mental
and loss of
101.023(b) (Vernon
§
Supp.
Rem.Code Ann.
society, companionship and affection. Yowell 1993).2
630,
Piper
Corp.,
703 S.W.2d
635-
Aircraft
(Tex.1986);
Schindler,
Initially,
argue
36
appellees
Sanchez
651
that al
(Tex.1983)
249,
governmental
(op.
reh’g).
though
pled
immu
S.W.2d
259
on
District
nity
objected
large
Evidence
held the
and
in its motion for new trial
showed Gonzales
but
together;
family
support
she
that the evidence
insufficient to
close-knit
was survived
was
award,
children,
objected
by
damage
and
never
to the
seven
Gonzales contributed
it
101.023(b).
judgment
of
support
to the
of her adult
on the
section
of one
children
basis
damaged. Family
appellees urge,
District waived the
who was brain
members
Gonzales,
alert,
by failing
object
liability
limitation on
on
saw
conscious and
suffer a
slow,
appellees rely
painful
days.
support,
for 16
that basis. For
The evi
Antonio,
pain
suffering
City
Davis v.
dence of Gonzales’
and
San
of
$100,000
injury
single
or death
for each
2. The statute
and
reads:
(c),
injury
prop-
occurrence for
to or destruction of
by
Except
provided
liability
as
Subsection
erty.
government
chap-
of a
unit of local
101.023(b) (Ver-
money damages
ter
in a
is limited to
maximum
Tex.Civ.Prac. &
Code
Ann.
Rem
$100,000
person
for each
amount of
Supp.1993).
non
$300,000
single
bodily
for each
occurrence for
518,
(Tex.1988),
1978),
affirmed an
lower courts made and
Winograd
v. Clear
widow,
$100,000
Authority,
exceeding
City
Lake
Water
mother,
[1st
writ
killed.
Dist.]
and children of a man
— Houston
denied).
wrote:
Davis,
distinguishable.
In
killed,
Those cases are
person
injured or
one
When
government
plead sovereign im-
failed to
brings suit,
lim-
applicable
plaintiff
one
at
munity
thus waived
it.
liability
That limit should
it of
Here,
pled
the District
519-20.
simply
the deceased is
change
immunity
Winograd,
limit.
of
claims
statutory
by two or
benefi-
more
survived
finding
a
faith.
were
of bad
disallowed
death statute.
ciaries under
Here,
finding
at 159.
there is no
controversy
centers around
here
Tex.R.App.P. 52(d)
Moreover,
faith.
bad
in the stat-
“per person”
the term
whether
nonjury
complain
allows
in a
party
trial to
injured
person
or those
ute refers to
making
a com-
excessive
without
as a result
persons who suffer a loss
plaint
subject in
on that
the trial court.
We think the
to someone else.
Finally,
sovereign
has
this Court
held a
meaning of
is that
it
clear
the statute
liability
does not waive the
limit of
persons who
or
sus-
refers
imposed by
the Texas Tort
Act
Claims
person”
injury....
“per
tain
To construe
plead
urge
City
it.
failure to
Houston
“per
mean that a
mean
claimant” would
v. Amey, 680 S.W.2d
874-75
surviving heir
limited to the
sole
would be
writ).
App.
[1st Dist.]
no
recovery when he
loss from
same
Amey,
city’s answer
as a
was stricken
persons
of two more
the death
sanction,
discovery
ren
the trial
he suffered loss
same accident
when
dered a default
in excess of the
person.
the death
one
from
Nonetheless,
liability
Act’s
limits.
this Court
liability
that the
is limited
We hold
State’s
hold that the
limit was
refused to
as a
of the
result
waived.
Other
874-75.
Cooksey.
of Michael
well,
courts, as
have reasoned that since the
(citations omitted).
governmental
liability
unit would
no
but
Id. at 387-88
After
Act,
the Act’s
must be Cooksey,
argued
limitations
cannot
be
Act
See,
accepted along
e.g.,
per
with its benefits.
claimant.
allows
*7
700,
Whipple Deltscheff,
v.
however,
Appellees argue,
they
1987, writ
(Tex.App.
[14th Dist.]
— Houston
$100,000 per
to
claim because
are entitled
n.r.e.) (holding damages
strictly
ref 'd
are
lim
they recovered under two different statutes
statute). Thus,
by
imposed
ited
to those
types
granting relief for two different
of loss
preserved
issue
for
review.
groups
to two different
of beneficiaries. Two
$200,000
Alternatively, appellees argue the
appeals
courts of
allowed awards
ex
because,
proper
in
to their
awai’d is
addition
$100,000
ceeding
single injury
for a
losses
reason of Gonzales’
derivative
City
circumstances.
Denton
these
In
v.
of
death,
separate
children
Gonzales’
180,
Page,
(Tex.App.—
683 S.W.2d
205-206
injuries.
and individual
1985),
grounds,
Fort Worth
rev’d on other
(Tex.1986),
Supreme
disapproved
upheld
The Texas
Court has
pellees’ recovery is limited to property. destruction damages incurred of the result 101.023(b) of the in this case. deceased & Rem.Code Ann. Tex.Civ.PRAC. (Vernon Supp.1993). OLIVER-PARROTT, Justice, Chief majority argues, The district and the dissenting. holds, “per person” language in the that the I respectfully dissent. The (the person injured de- Act refers to the under the Texas Tort Claims ceased), persons loss as not to who suffer correct, and not have been Act was should (the wrong- result of someone else majority reduced beneficiaries). majority then ful $100,000, hospital found
The trial district reduces the *9 it, by implication, only to the responsible negligently pre- awards percent disagree I this inter- scribing a to survival claim.1 for Carolina Gonzales person physically guage Act refers the in the to Rem.Code 71.002 Tex.Civ.Prac. (Vernon 2. Ann. § & persons as a injured, to the who suffer a loss 1986). $100,- injury, the result of that seems to indicate they majority explicitly 1. does not state how The claim, go the as that claim 000 would to survival apportion the Their award. would Moreover, injuries. the award of for Gonzales’ is conclusion, however, "per person” lan- that the pretation rights. of the Act and with the result that the The actionable decedent’s persons If wrong follows. who suffer loss as a is that ivhich the decedent suffered (the result his death. The recovera- of the death of someone else before beneficiaries) wrongful “per- death are not ble are those ivhich he sustained himself Act, any damages injured” while he was alive and not wrongful sons then independently by the ac- claimed survival death claims could succeed under the plaintiffs (except tion ex- Act if there nois valid survival action. That funeral penses may they also be recovered were holding contrary supreme runs to the court if action). wrongful not awarded in a authority by majority. Simply cited the stat- Any recovery flows who ed, obtained to those appellees are entitled to would have recovered it had he obtained they brought claims under two different stat- is, immediately prior to his death —that his grant inju- utes that relief for two different heirs, legal representatives (1) and estate. parties: ries suffered two different compensates claim survival Gonzales for her Co., Ingersoll-Rand Russell v. 841 S.W.2d (2) injury; wrongful (citations death claim (Tex.1992) omitted) (em- 343, 345 compensates injuries. her children for them added.) phasis Here, majority correctly found the evi- Injury to Gonzales: dam- dence sufficient sustain The Survival Action ages her estate award Gonzales and under question,
The evidence claim. shows district survival Without Car- Gonzales, injuries “person injured” caused severe to Carolina olina Gonzales is a under Act, injuries gruesome led to her death. the Tort Claims and her estate is enti- Historically, person’s cause of action for tled to the award. personal did not survive their death. Injury Children: Hosp.,
Rose v. Doctors
Wrongful Death Action
abrogated
The common law was
legislature
when the
created what is called
Gonzales,
injuring
addition
Carolina
statute.
survival
Rem.
Tex.Civ.Prac. &
injured
the district also
Gonzales’ children
(Vernon 1986).2
§
71.021
This
Ann.
Code
law,
At
when it caused her death.
common
designed
statute is
to allow the decedent’s
brought
no cause of action could be
for the
estate,
behalf,
on her
to recover for the dam-
Rose,
person.
death of another
ages the
sustained while alive. The
decedent
however,
legislature,
at 845. The
has also
supreme
recently
described the surviv-
by creating
wrongful
abrogated this rule
al action as follows:
death action. Tex.Civ.PRAC. & Rem.Code
(Vernon 1986).3
statute,
§
By
action
71.002
A
decedent’s
sur-
Ann.
may
prosecuted
separate
his death and
be
death action is
and distinct from a
vives
action,
his behalf. The survival
as it is
survival action. The survival action recovers
called, wholly
personal injuries
by the
sometimes
derivative of
for the
de-
claim,
(c)The
may
prosecuted
any money
instituted and
on the
since it
suit
be
designed
compensate the
for their
person
children
if
liable
were alive.
implicit finding
they
injuries,
an
would be
Act,
"persons injured”
a result
were
§ 71.002. Cause of Action
3.
contrary
majority’s position.
(a)
damages arising
An action for actual
injury
§
Cause of Action
2.
71.021. Survival
from an
that causes an individual’s
(a)
brought
liability
may
personal injury
be
if
exists under
A cause of action for
health, reputation,
person
injured
this section
person
(b)
damages arising
does not abate because of the death of
person
A
is liable for
injured person
of the death of a
or because
injury
from an
that causes an individual’s
injury.
liable for
person’s
death if the
was caused
(b)
personal injury
to and
A
action survives
act,
agent's
ne-
or his
or servant’s
heirs, legal representatives, and
favor of the
carelessness, unskillfulness,
glect,
or default.
injured person.
estate of the
The action sur-
(b)
71.002(a)
Tex.Civ.Prac.
Rem.Code
Ann.
Si
person’s
against
person and the
vives
the liable
(Vernon 1986).
legal representatives.
*10
claim,
reasoned
The court
whomever
before death and benefits
ceased
action, no
is one
wrongful death
an action for
beneficiary
the
estate.
the
decedent’s
is
separately
many claimants are
§ 71.021 matter how
See Tex.Civ.Peac.
& Rem.Code Ann.
(Vernon
1986).
Kyle, 658 S.W.2d
injured by the death.
wrongful
The
death action
Thus,
150;
at 387-88.
Cooksey, 570 S.W.2d
surviving
the
benefit of the
“for
exclusive
Cooksey,
supreme
the
children,
Kyle
in
and
spouse,
parents
and
of the de-
71.004(a).
recovery
that the maximum
Clearly,
leg- made it clear
the
ceased.” Section
for
the Act is
under
wrongful death claim
wrongful
a
believed
death beneficiaries
islature
$100,000,
there is more
regardless of whether
own
allowed to recover for their
should be
beneficiary.
Id.
wrongful death
injuries
than one
injuries, independent of the
suffered
deceased;
may
jury
“The
award dam-
the
Cooksey to
majority
Kyle and
reads
inju-
proportionate
the
ages in an amount
$100,000 under
of more than
the award
bar
ry
71.-
resulting
death.”
the
Section
from
regard
person,
death of one
the Act for the
010(a)
added).
may
(emphasis
A factfinder
causes of action
number of distinct
less of the
family damages
their
a
for
award
decedent’s
survival,
death,
by
made,
and
e.g., wrongful
loss,
pecuniary
anguish,
mental
loss of soci-
stander,
those
I do not believe
etc.
affection,
ety, companionship and
and loss of
recognize
broadly
I
so
read.
cases should be
Piper
Corp.,
inheritance. Yowell v.
Aircraft
actions are derivative
wrongful
death
(Tex.1986);
635-36
Sanchez
Inger
rights. See Russell
the decedent’s
(Tex.1983)
Schindler,
Co.,
343, 345-47
soll-Rand
reh’g).
award on
(op. on
the
1992).
that,
majority
recognize
as the
I also
compensates Gon-
wrongful
death action
out,
Cooksey
in
concluded
points
the court
zales’ children
the district
for
person” language in the Tort
“per
them.
caused
injured,
not
Act refers to the
Claims
loss as a result of
persons
who suffer
majority agrees that the factfinder
Nevertheless,
may
injury to someone else.
wrongful death claim
award a dece
a
re
only made the statement
family damages
injuries,
supreme court
for them
and
dent’s
injuries in the context of
garding derivative
of the
suffered
outlines the evidence
(Gonzales’
multiple wrongful
attempt of
rejecting the
wrongful
death claimants
children).
apiece
majority
rejects
claimants to recover
then
the dis
death
It does
wrongful death action.
sufficiency challenge, and finds
under one
trict’s factual
wrong
any
all
necessarily follow that
support
damage
not
the evidence sufficient to
beneficiaries,
they have
$100,000. Yet,
despite finding that
ful death
$100,-
injuries, cannot be consid
claimants
suffered derivative
injured”
Act.
If
“person
majority
ered a
damages,
concludes those
case,
supreme court would
injured”
pur
for
that were
“persons
claimants are not
conclusion,
wrongful death benefi
allowed the
ma
not have
poses of the Act. That
anything for their deriva
asserts,
supreme
to recover
jority
compelled by two
ciaries
such,
Cooksey.
injuries Kyle
As
tive
interpreting the Act: Madison
court cases
suffered'by
harm
regardless
whether the
Kyle, 658
Independent School District v.
ville
is labeled
(Tex.1983),
wrongful death beneficiaries
City Austin v.
injury,”
“a
as a
loss
“injury,” a “derivative
Cooksey,
they
analysis
received
total for the entire
of our
in
sister
Texas
Department
Transportation
Ramming,
v.
wrongful death claim.
that result is
(Tex.App.
861
460
[14th
entirely
supreme
consistent with the
court’s
— Houston
(not
n.w.h.)
Dist.], 1993,
yet reported).
holdings Kyle
Cooksey.4
in
Additionally,
majority’s interpretation
Can the Awards for the Two Different
of the law would
or amend statutori
abolish
Injuries
Together?
Stand
ally mandated causes of action. Such a re
contrary
statutory
sult is
to the laws of
con
If
solely
this case consisted
of the survival
requires
struction that
our
should
statutes
be
claim, Gonzales’ estate would be entitled to
gives meaning
read
a manner which
$100,000. Likewise, if this case consisted
Beverage
each statute.
J. & J.
Co. v. Texas
claim,
solely
wrongful
of the
the chil
Comm’n,
859,
Beverage
Alcoholic
810 S.W.2d
$100,000.
dren would be entitled to
Conse
writ).
1991,
860
no
Wher
— Dallas
quently,
question
is whether both awards
possible, they
interpreted in
ever
should be
together
can be sustained
in the same case.
harmony with
another.
v. Texas
one
Valdez
appeals
Two courts of
faced with situations
(Tex.
342,
Hosp.,
Childrens
673 S.W.2d
344
similar to this have allowed
writ).
1984,
App.
no
[1st Dist.]
— Houston
$100,000
“single
the Act
excess of
for a
rule,
majority’s
Under the
either Gonzales’
physical injury.”
City Denton v.
See
Van
statutory
survival claim or her
beneficiaries’
180,
Page,
(Tex.App.—
205-06
wrongful death claim was abolished com
1985),
grounds,
Fort Worth
rev’d on other
statutory
pletely, or each
cause of action was
(award
(Tex.1986)
exceeding
the situation
Van
inju
different claims for different
and here:
parties.
disagree
I
with
ries to different
also
reasons,
attempt
to recover
death beneficiaries'
4. For the same
it is also consistent
(Tex.
White,
claimant).
County
per wrongful