Hofer v. Lavender

ux., Petitioners, J.D. HOFER et LAVENDER, Respondent.

Sharon

No. C-2552.

Supreme Court of Texas.

July 1984.

Rehearing Denied Nov.

Edwards, Constant, MeMains & William MeMains, R. Edwards and Russell H. Cor- Christi, pus petitioners. for Hunt, Hermansen, Barger, McKibben & Hermansen, Christi, Corpus Tom for re- spondent.

KILGARLIN, Justice. The first of two issues involved in this case is whether be recovered from the estate of a tort- inquiry feasor. Incidental to that is wheth- (stat- er under Tex.Rev.Stat.Ann. art. 5525 providing ute survival causes of ac- personal injuries), exemplary tion for ages may by persons be recovered other Const, XVI, than those named Tex. art. Hofer, wife, 26. J.D. and his Joan Hof- er, Lavender, brought suit Sharon personal representative of the estate of deceased, which, Springate, Robert W. among things, sought other ex- Hofers themselves, emplary damages for individu- damages” means an “Exemplary amount ally, estate of their deceased and for the your in you may award discretion which daughter, judgment The of the trial June. good of the and as an an for both sets of court included award society large of at public, in interest the exemplary damages. appeals The court of of the commission similar deterring exemplary damages could concluded that wrongs. against not be the estate of a recovered and, accordingly, the deceased reversed the The that under Texas Hofers contend

judgment trial court and rendered of the Statute, action all causes of sur- Survival judgment that the Hofers recover no exem- vive, the estate of the both of behalf capacity. plary damages 658 S.W.2d of the deceased and the estate tort- judgment of court reverse the We additionally The assert that feasor. Hofers appeals exemplary of and reinstate designation may of who the constitutional Hofers, damage individually. to the awards damages applies exemplary recover to remand this to that We sever and cause actions, wrongful only, and was not death of Lavender’s for a determination preclude recovery to under the sur- meant exemplary the amount of contention that statute. Lavender contends that vival Ms. damages estate of Hofer allowed the June damages pun- as the was excessive. ishment, may no as a deceased earth, is no punished long- be on this there Hofer, age eighteen, driving June while a awarding damages. a such er basis for vehicle, parents passengers, her as with “punitive” nor While neither the word driven by was struck a vehicle Robert are contained in discussion its Springate. shortly W. Tests administered charge, objection the court’s no was made Springate after the accident indicated that as to the instruction other than one had blood alcohol content. June 0.27% punitive damages cannot be recovered that Hofer survived the accident but a few against the of a deceased. estate Never- Springate hours. died of unrelated causes theless, objection we that suffi- consider before the case came to trial. answer to error, any. if preserved cient to have Ms. issues, special jury Springate found to in any maintains that Lavender further guilty gross negligence have been event, Hofer is not enti- the estate of June $100,- Hofer and awarded J.D. Joan Hofer damages exemplary to recover because tled exemplary jury 000 each in among the parents are included consti- likewise awarded the estate of June Hofer to tutional list of those entitled recover. $200,000 exemplary damages. Although position supporting Ms. Lavender’s While pleaded damages the Hofers had for under contention, appeals the first the court (Texas Ann. art. 4671 Tex.Rev.Civ.Stat. Sprin- concluded that for the death but Act), Wrongful there is Death no conten- gate, provision would not constitutional tion awarded recovery dam- have barred Hofer, individually, to J.D. Hofer and Joan Hofer. ages by the estate of June pursuant were done so statute. No objection charge was in this to the made causes of At common law all action respect complaint there has been no as injured party of the person died with of those to excessiveness person inflicting injury, except therefore, will, ages. conclude that We Rolls, property. Johnson to the Hofers were awarded (1904); Johnson v. S.W. individuals, supported by and are actual Farmer, 89 Tex. 35 S.W. Hofers to the on account awarded and, Loop, Watson injuries personal of their sustained own adoption of changed by the That was the accident. initially was Texas Survival Statute May 1895. Ch. “exemplary dam- enacted court defined trial amended, has since been pertinent special Gen.Laws 143. It ages” respect as follows: and now reads issues as follows: All causes of upon injured, action which suit has the death of one why would not the been or brought hereinafter be permit same survival statute personal injuries, injuries resulting or for exemplary damages against a deceased injuries death whether such be to the tortfeasor? reputation, health or to the or to the rely The Hofers on the statute survival person injured party, shall not attempt distinguish in their this case by reason per- abate of the death of the Wright’s from that of Administratrix v. against son whom such causes of action Donnell, (1870), upon by 34 Tex. 291 relied accrued, shall have nor reason of the opin- Lavender. That “semi-colon” court1 but, injured person, death of such in the punitory ion held that or vindictive dam- both, case of the death of either or all against could not be the recovered such causes action shall survive to of representative of a deceased. It is true legal and in the heirs and favor of many jurisdictions other have also de- representatives and estate such in- of recovery nied the of jured party against person, and the or persons from the estate of a injuries liable his deceased tortfeasor. legal representatives, may However, or their overwhelming majority the of prosecuted be instituted and as if such those states which have done so have acted persons against action or whom same on the basis of either a ex- statute which alive, added). (emphasis accrued were plicitly precluded recovery2 such a or on Tex.Rev.Civ.Stat.Ann. art. 5525. Because premises interpre- which did not involve the statute, accepted survival it is now tation of a survival statute.3 injured party that death of the does not bar Statutory enactments other states recovery exemplary damages by a of prohibiting punitive damages allowing or Castleberry Goolsby Building estate. v. provide resolving spe- no assistance (Tex.1981); Corp., 617 S.W.2d 665 Folsom cific issue before us: whether Investments, Troutz, Inc. v. 632 S.W.2d damages may be assessed under a statute (Tex.App.—Fort 1982, 872 Worth writ ref d provides specifically that all causes n.r.e.); McEwen, Pace v. 574 792 against representative of action survive 1978, (Tex.Civ.App.—ElPaso ref n.r. writ d a deceased. As to the of cases cited e.); Houston American Insurance Life three, important footnote considera- two Tate, (Tex.Civ.App.— Co. v. 358 S.W.2d 645 First, tions must be observed. these cases 1962, writ). argument no Waco ad- interpret right recovery did un- by the vanced Hofers is that as the surviv- Second, der a statute. all of these survival interpreted al statute has been allow recovery opinions concept to survive are based that the 30.080, (1983); opinion by gon, 1. So called OR. REV. STAT. §§ because an 30.020 Island, seeking (1970); to void the election of Democrat Rich- Rhode R.I. GEN. LAWS § 9-1-8 Republi- and, (1977); ard Virginia, Coke Governor over incumbent § VA. CODE 8.01-25 Wis- holding consin, can Edmund J. Davis. The of the court (West 1983). § WIS. STAT. ANN. 895.01 position was based on the of a semicolon in an specifically Oklahoma has a statute which au- Rodriquez, election law. Ex Parte punitive damages against thorizes (1873). With the refusal of President Grant to decedent’s estate. OKLA. STAT. ANN. tit. 12 by supplying intervene in behalf of Davis Union (West 1961). § 1038 troops, holding never became effective and Coke became Governor. Co., 3. Meighan Birmingham v. Term. 165 Ala. 591, (1910); Moreno, 51 So. 775 Braun v. 11 (West California, § CAL. PROB. CODE 573 509, (1970); App. Ariz. P.2d 466 60 Johnson v. Colorado, 1984); Supp. REV. STAT. COLO. 118, (1908); Levy, Tietjens 122 La. 47 So. 422 v. (1973); Maine, ME STAT. 13-20-101 REV. § Corp., (Mo.1967); General Motors 418 S.W.2d 75 Massachusetts, 18-A, (1981); ANN. tit. 3-818 § Smith, (10th Cir.1962) Barnes v. 305 F.2d 226 230, (Michie/Law. § MASS. ANN. LAWS Ch. Mexico); (New Wilson, Thorpe App. v. 58 N.C. 1974); Co-op. Mississippi, MISS. CODE ANN. 292, (1982); Gill, Hayes 293 S.E.2d 675 Nevada, (1972); 91-7-235 NEV. REV. STAT. § (1965); and, Tenn. 390 S.W.2d 213 Marcante York, 41.100 New N.Y. EST. POWERS Hein, Wyo. 67 P.2d 196 (Consol.1974); & LAW 11-3.2 Ore- TRUSTS assessing the reasons for purpose punitive damages punish is to tions turn on exemplary damages. The Min wrongdoer wrongdoer, punitive and that as the or death, beyond punishment, Supreme Thompson the reason nesota Court v. Estate (Minn. Specifi- Petroff, for assessment no exists. 319 N.W.2d mention, 1982), cally, except by damages were there is no concluded that actual statute Wyoming, courts of Alabama and that an recoverable under its survival deceased, but that additional of such is to the estate of However, not. warning punitive serve as an to others. were very plainly states Meighan Birmingham In Term. Minnesota court “[t]he (1910), punitive damages punish is to 165 Ala. 51 So. 775 the Ala- malicious or bama court does mention that the tortfeasor where the act is willful, warning repeating him serve as a to other and to deter from cited). (authorities wrongdoers, punitive wrongful but concludes that act Obvious dead, punishment. ly, exists are assessed as if the tortfeasor is no need Hein, Wyo. P.2d deterrence.” Marcante v. for either (1937), Wyoming opinion by stating 196 the court states that That court concludes its purpose punitive damages punish ignore “since the that to the estate be to would punish wrongdoer A purpose punitive damages. the for his acts” and the entire recovery him to deter from future commission of series of Iowa cases have denied wrongs, punitive damages are not from the estate of a allowed. of cases, being See, e.g., These not based on survival deceased. Rowan v. LeMars Mu Iowa, in 282 interpretations, Company act offer little assistance tual Insurance issue, (Iowa 1979); Rohm, resolving previously the as stated. N.W.2d 639 v. Wolder 1977); and, Further, (Iowa majority Stephen whatever be the 249 N.W.2d 630 jurisdictions expres- rule in other 237 21 N.W.2d Stoufer, be son v. Iowa (1946). necessarily sion of cases cite the commentators does not 287 Each of these previous authority, ending up mean it will the rule in be of law Texas. Iowa case as Hobson, 64 19 See Givens and Dawson d/b/a United with v. Iowa Sheik Agency Douqherty, case, Farm 671 S.W.2d 875 In that the Iowa N.W. (Tex.1984). Supreme interpreted 877 Code Court Iowa § (1873), predecessor the current Courts in five states have addressed language Iowa Survival Statute. The here, i.e., question presented which is though that case makes it clear that even exemplary damages against assessment of survive, purpose of action all causes a deceased tortfeasor under a survival stat- law, being punitive damages under Iowa Florida, Iowa, ute. Those states are Min- only, prohibits collection from nesota, Virginia. Nevada4 and West tortfeasor. Like the estate of a deceased statutes of the states are similar to that of situation Allen v. Ander wise was the regards language Texas in that all (1977), son, 562 P.2d 487 93 Nev. of a causes of action survive behalf Supreme the Nevada Court conclud where against deceased and a deceased tort- could no that as a deceased tortfeasor ed Virginia feasor.5 Florida and West have punitive longer punished, the reason for be exemplary damages may be concluded damages no existed. against assessed the estate of deceased allowing reason for ex- Conversely, The courts of the other three tortfeasor. contrary. emplary damages against In estates of de- states have concluded to the by the courts of Florida analyzing the reasons for different results ceased tortfeasors statutes, Virginia is because each of those interpreting similar the distinc- and West (West 1969); prohib- subsequently 5. FLA. STAT. ANN. 46.021 § 4. Nevada enacted a statute (West 1950); ANN. 611.20 § IOWA CODE iting recovery of from a 1984); (West Supp. MINN. STAT. ANN. 573.01 § deceased tortfeasor's estate. W. VA. REV. NEV. STAT. 41.100 (Supp.1981). CODE 55-7-8a recognize states reasons Id. at 12. The West assessing ex Virginia court contin- emplary damages by pointing other ued punishment, punitive than out that go beyond personal vindication, Didich, Properties Atlas alone. serve a deterring societal function of So.2d oth- 278 (Fla.Dist.Ct.App.1968), cert engaging ers from pro- similar acts and dism’d, (Fla.1969), argu So.2d 684 compensation vide additional to sufferers ment advanced of exem from a defendant’s reckless and wanton plary damages was that the Florida Surviv misconduct. Statute, being derogation al of common law, strictly construed, must be analysis of cases from other prevent would a recovery jurisdictions dam causes us to conclude that the ages. The disagreed, Florida court issue at saying hand must be resolved on the basis and, that all causes of of what recognized action survive Texas has heretofore there fore, punitive, vindictive, a demand for or ex damages sur emplary damages. course, punishment Of vives the death of either party. The reason wrongdoer is one given of exem was that recognizes Florida a tort plary But, as recently as last being action as remedial. While much of year, we have stated that another of the language above discussed was dicta to purposes of such is to serve as an opinion, it was disapproved by State, to others. Pace v. Supreme later, Florida year Court. A (Tex.1983). We said the Properties reasoning in the Atlas case was Division, thing same Armco Sheffield specifically adopted holding as the John Corp. Jones, Steel 376 S.W.2d Rinesmith, son v. (Fla.Dist. 238 So.2d 659 (Tex.1964). supreme An earlier court had denied, Ct.App.1969), cert. 241 So.2d 857 concluded exemplary damages that also ex (Fla.1970), which held that a claim for ex ist to reimburse for losses too remote to be emplary damages survives the death of a considered as elements of compensa strict Braun tortfeasor. It is of interest that Duke, Mayer v. 445, tion. 72 Tex. 10 S.W. Moreno, 11 Ariz.App. 466 P.2d 60 Simmons, In Allison v. (1970), the Appeals Arizona Court of had (Tex.Civ.App.—Waco 1957, S.W.2d 206 writ Properties to Atlas cited v. Didich as been n.r.e.), exemplary ref’d it held that was authority for exemplary of dam damages example existed as an ages against of estate a deceased. good public compensate of the and to for rejecting argument, this the Arizona court attorney’s inconvenience and fees. Anoth specifically distinguished the case before it purpose exempla er statement as of to the Florida, by noting from that that ry damages Foster v. appears Texas Florida case involved the construction of a Bourgeois, (Tex.Civ.App.— 253 S.W. 880 survival statute. 1923), aff'd, Austin 113 Tex. 259 S.W. Melton, In Perry v. (W.Va. 299 S.E.2d 8 (1924), where it was stated: 1982), Supreme Appeals Court of of theory exemplary, punitive, The of Virginia analyzed West many cases of damages, they or as are vindictive some- jurisdictions, other and concluded that the money,” times called “smart involves a basis of those decisions was because the blending society gen- of the of interest punitive damages of under aggrieved eral with those of the individu- laws of such punish. other states was to particular. According al in to most au- Virginia The West court said: thorities, damages by such are awarded offender, way punishment to the of damages Punitive in this state oth- serve others; warning although as a by oth- equally important er functions and are er are way authorities awarded supported by public policy go- interests by way punish- and not ing beyond simple punishment of the ment. wrongdoer. Consequently, the reasons

for them do not cease on the death of the at earliest re- 253 S.W. 885. One of the v. Tuck- tortfeasor. Cole subject, corded cases on the er, (1851), original Wrongful The Death Act was observed that is “[i]t plaintiff suing only by legal fiction that the contained in Ch. 1860 Tex.Gen.Laws damages represents pub- a exemplary for of the act was to create The that opinion lic.” That concluded designated of action for a class cause sufferer, given compensation are wrongful of the death persons on account punishment of the offender. as well as for certain bearing relationship of one a a Id. at 268. enti- degree consanguinity. Those now wrongful bring tled to death action Inasmuch as Texas case law indi husband, wife, surviving chil- limited to the public policy cates that the for parents Tex. dren and of the deceased. equally important includes consid Early it art. 4675. Rev.Civ.Stat.Ann. other than erations Wrongful held that the Death Act was was wrongdoer, the situation in this case is far more Florida and to those of the da courts. For this closely West akin to the Iowa, Minnesota, Virginia reason, courts than it is holdings we conclude and Neva art. interpretative not intended as a survival statute. March Walker, XVI, 26 states that commentary to “[i]f (1877).6 Const, ^[1860] action, distinct act created a new cause of there that under the Texas Survival Statute might have from that the deceased right exists a to collect had, survived, had then from the estate of a deceased tortfeasor. he Therefore, judgment the trial would die with the deceased. On the be Hofers, hand, individually, half of the if should be other the cause of action was a judgment affirmed and the of the court of mere continuation of the deceased’s cause action, appeals accordingly To the ex still reversed. would Wright’s Administratrix v. Don part judgment tent that the de- be nell conflict, family is in it is could The reason overruled. ceased’s collect.” Sears, Jones, Roebuck and dictum in Co. adoption provision for of the constitutional (Tex.Civ.App.—Waco S.W.2d 432 was to under allow n.r.e), writ ref’d restating Wrongful the rule of Death Act because of Administratrix, Wright’s disapproved. early interpretation not authorized the act under the were concluded, Having so compelled we are theory that the act created a new cause of argument to address the alternative action. presented by argu- Ms. Lavender. That ment, restated, is that as the Hofers are Quite plainly, the Hofers have no cause among persons not the class of entitled to exemplary damages under the of action for wrongful recover Wrongful Death Act because Tex.Rev.Civ. Const, death, by as delineated Tex. art. enlarge upon Stat.Ann. art. 4675 cannot § Const, XVI, 26, they may the not recover under XVI, v. In- Winnt art. guise of the survival statute. That consti- G.N.R.R., 32, 11 ternational & provision tutional is as follows: Ry. Houston & T.C. Co. v. S.W. 907 Baker, Every person, corporation, company, or We are of the however, homicide, through appeals court of may opinion, that commit a that the act, omission, gross neglect, correctly pursuant that to the sur- willful or or decided responsible, exemplary representatives in heirs or shall be vival statute “the husband, widow, pursue ages, surviving the of the estate should be allowed to body, heirs of his or her or such of them the entire cause of action not lose a be, they may regard part there of said cause of action because do as without people proceeding may may criminal that or not fall within the class of set forth XVI, in art. 26 of the Texas Constitu- be had relation the homicide. grounds. by 6. March v. Walker was overruled different Sanchez Schindler, (Tex. 1983), 651 S.W.2d 249 but on tion.” ques 658 S.W.2d at 814. This same tled to assert both causes of action. Id. at tion has been addressed Folsom Invest purposes 35. The two causes differ. ments, In Inc. v. Troutz. that case the Wrongful Act Death created a new appeals court of observed that the Troutz cause of action in favor of certain named parents, suing child, for the death of their survivors. The survival statute did not “brought had a combined survival and action, create a kept new cause of but alive wrongful death On judg action. default the cause of might action that deceased they ment would be entitled to recover have had. It no say makes sense to that a exemplary under damages the Survival may tortfeasor have Act.” 632 at 877. S.W.2d We are not assessed him favor of a dece- unmindful of Scoggins Southwestern dent’s estate if the beneficiaries of the es- (Tex. Electric Service 434 S.W.2d 376 children, spouse tate are a but not if n.r.e.), Civ.App.—Tyler writ ref d cit beneficiaries are otherwise. To follow Ms. ed authority. Ms. Lavender that argument logical Lavender’s to its conclu- case appeals, relying previ the court of on sion, damages actual could not be recov- cases, ously supreme cited court held that ered under the survival statute if the bene- provision of Tex.Rev.Civ.Stat.Ann. art. ficiaries of the decedent’s estate were other 4675, allowing parents to recover under the than persons those named in Tex.Rev.Civ. Act, Wrongful enlarge Death could not Stat.Ann. interpretation art. 4675. Such upon the constitutional limitation of those meaningless would often render surviv- exemplary who could recover Thus, al opinion statute. we are of the But, parents Scoggins did not con that the writings two most recent Texas tend, addressed, nor is the issue Investments, subject, this Folsom Inc. v. could exemplary recover under appeals’ opinion Troutz and the court Likewise, the survival statute. we do not case, exempla- this correctly conclude that authority Fleming consider as Oil Co. v. estate, ry damages to the survive whoever Watts, (Tex.Civ.App.—Tex- 193 S.W.2d 979 may beneficiaries of that estate be. n.r.e.). arkana d writ ref That case judgment We reverse the of the court of repudiated stands premise for the now appeals portion judg- and affirm that of the exemplary damages may no be recovered awarding exemplary ment of the trial court under a survival and that statute Hofers, individually. to the As to damages that be recovered awarded J.D. Hof- pursuant Wrongful Death Act. representatives er and Joan Hofer as of the Castleberry Goolsby Building See Hofer, estate of June we likewise reverse Corp. support case closest Ms. appeals, judgment of the court of position Bedgood Lavender’s was v. Mada remand to that for its consideration lin, (Tex.Civ.App.—Corpus 589 S.W.2d 797 the issue Christi, of exeessiveness 1979), part, rev’d and re aff'd judg- awarded trial court (Tex. part, manded in 1980). However, ease, ment. the instant disapproved appeals

same court its dicta Madalin, saying in Bedgood v. “[t]o SPEARS, J., opinion with dissents exists, extent inconsistency that such we POPE, C.J., McGEE and which and BAR- portion opinion withdraw that that ROW, JJ., join. inconsistency.” reflects such 658 S.W.2d SPEARS, Justice, dissenting. at 814. I I respectfully dissent. would affirm As stated in Landers v. B.F. Good holding appeals court of of the that (Tex.1963), 33 rich 369 S.W.2d “[t]wo are not exemplary damages assessable separate may and distinct causes of action against estate. a tortfeasor's injuries wrongfully arise inflicted where entitled opinion The Hofers contend are to result death.” The observes that against Springate’s statutory exemplary damages es- always beneficiaries not enti-

477 just Donnell, tate as if he They rely were still alive. 34 Tex. 291 Administratrix statute, on the Texas survival pro- (1870), which and were reaffirmed in Sheffield vides: Division, Jones, Corp. Armco Steel (Tex.1964), and Pace v. All upon causes of action which suit State, (Tex.1983). 650 S.W.2d See may has brought been or hereafter be Prosser, also W. Handbook the Law personal injuries, injuries or for re- (4th 1971); Torts ed. 25 C.J.S. Dam- death, sulting in injuries whether such be § 117(1) (1966); ages 28 Tex.Jur.3d Dam- to the health or reputation, or to (1983) (collecting other Texas person injured of the party, shall not cases). separate punishing aims of by

abate reason per- of the death of the providing example tortfeasor and an to de- against son whom such cause of action ter others accrued, by interchange- are mirrored shall have nor reason of the “punitive” able use of the injured person, but, death of such terms and “ex- in the emplary” both, damages. case of the death of to describe these either or all such causes of action shall survive to and Springate’s legal death made in favor of the heirs legal represent- and impossible. No social benefit is served atives and injured party estate of such attempting punish and, hence, his estate against person, persons or liable his heirs. The apparently recog- Hofers injuries for such legal and his or their nized as much and elected to submit representatives, may be instituted jury giv- element. The was prosecuted if person per- en the following instruction: against sons whom same accrued were “EXEMPLARY DAMAGES”means an alive. you amount your award in (Vernon Tex.Rev.Civ.Stat.Ann. art. 5525 discretion and as an 1958). good public, in the interest of The language of the statute does not society large at in deterring the commis- expressly allow or disallow wrongs. sion of similar ages against an estate. The argue Hofers sought No were or awarded as that the more reading natural of the stat- punishment. The issue then is whether the suggests ute exemplary damages that general deterrence, alone, aim of is suffi- should be allowed because a cause of ac- support cient an award of tion, including all recovery, elements of survives ifas party deceased still were No specif- Texas court has addressed this alive. Because the statutory language is ic question issue or the broader of whether conclusive, we must decide whether the survival statute altered the common construing the survival statute to allow an precluding law rule award an pur- estate serves the against an Wright’s estate. The case of poses justify exemplary damages. Donnell, Administratrix Exemplary unquestionably (1870), holding punish serve specifi- the offender and to assessed, could not long be was decided cally deter him from future misconduct. before survival statute was enacted. Walls, E.g., Royalty Burk Co. v. Sears, appeals The court of decision in Seitt, (Tex.1981); S.W.2d 911 Bernal v. Jones, Roebuck & Co. v. 303 S.W.2d 432 313 S.W.2d 520 Bennett v. (Tex.Civ.App.—Waco writ ref’d n.r. Howard, 170 S.W.2d 709 e.), exemplary damages, also denied but the (1943). Exemplary damages also make an effect of the survival not ad- statute was tortfeasor, example of the which serves as dressed. public general a lesson to the and as a (Second) deterrent to similar actions others. Restatement Torts also These dual Wright’s aims noted in exemplary damages against were does not allow

478 my opinion, a tortfeasor’s estate.1 A number of deci- and deterrent jurisdictions support sions from other this exemplary damages separa- aims are not but, position, cases, prior like the Texas general ble. deterrent effect of an gen- none address the issue of whether the isolation, award cannot be considered in eral exemplary damages deterrent aim of is large general because to a extent deter- recovery sufficient to allow under a broad- depends punishment. rence Specifically, on ly worded survival statute such article public members of the are deterred from Many states whose courts they similar misconduct because witness exemplary damages2 have not allowed also When, wrongdoer’s punishment. specifically pro- had survival statutes that death, through the tortfeasor is no recovery hibit from subject legal punishment, general to a deceased tortfeasor’s estate.3 A second deterrent effect greatly likewise is dimin- group exemplary of cases disallowed dam- ished, completely if not frustrated. Effec- ages discussing without the effect of a tive deterrence cannot be achieved when survival statute.4 reason, impossible. is For this jury Because the instruction excluded the deterrent function of punishment, reference to the award support is insufficient to an award cannot be disallowed on the basis that it By when tortfeasor dies before trial. attempts punish a dead man. The Hof- separating the dual aims of ers do not contend that we should allow damages, potential the court creates the punish in order to recovery. reasoning for double The court’s Springate argument or his estate. Their is parties will allow to submit one issue seek- that, inflicting punishment, even without ing damages punish and deter the tort- exemplary damages continue to act as a seeking damages feasor and another issue supportable deterrent to others and are that basis. as an others. 230, (Michie/Law. 1974); provides: Co-op. 1. Section 926 LAWS ch. 2§ Island, (1970); § Rhode R.I. GEN. LAWS 9-1-8 providing Under statutes for the survival or Wisconsin, (West WIS. STAT. ANN. 895.01 actions, § revival of tort for a tort 1983). involving death for which the tortfeasor responsible are not affected the death of party during except Meighan Birmingham either before or trial that: 4.See v. Terminal 165 ****** 591, (1910); Moreno, Braun v. 11 Ala. 51 So. 775 509, (1970); App. (b) Ariz. 466 P.2d 60 Johnson v. the death of the tort feasor terminates 118, (1908); Tietjens Levy, La. 47 422 liability punitive damages. 122 So. v. (Mo.1967); (SECOND) TORTS, Corp., 418 S.W.2d 75 RESTATEMENT OF General Motors 926(b) (1979). Smith, (10th 1962) Barnes v. 305 F.2d 226 Cir. § law); Wilson, (applying Thorpe New Mexico v. Glen, Bancroft-Whitney

2. See Co. v. 64 Cal. 2d 292, (1982); App. 58 N.C. 293 S.E.2d 675 Morriss 327, 825, (1966); Rptr. 49 Cal. 411 P.2d 921 Barton, 4, (1947) (Okla- v. 200 P.2d Okl. 190 451 Wolverton, (Miss.1968); Mervis v. 211 So.2d 847 homa has since enacted a survival statute that 247, Corp. Greenspun, Nev. 607 Summa v. allows from a (1980); Nathan, P.2d 569 Gordon v. 43 A.D.2d decedent’s estate. See OKLA. STAT. ANN. tit. 917, (N.Y.App.Div.1974); 352 N.Y.S.2d 464 Ash (West 1961)); Gill, Hayes v. § Saunders, v. 251 Or. 444 P.2d 924 craft (1965); Tenn. Mercante Johnson, (1968); Dalton v. 204 Va. Hein, (1937). Wyo. 67 P.2d 196 S.E.2d 647 distinguisha A number of these cases are also the frus ble because the courts considered (West California, § 3. See CAL. PROB. CODE 573 punitive aim and did not discuss the trated 1964); Supp. Mississippi, MISS. CODE ANN. general viability effect of an deterrent (1972); Nevada, 91-7-235 Nev. Rev. Stat. § recognized Perry award. This distinction was York, (1979); 41.100 New N.Y. EST. POWERS § Melton, (W.Va.1982), held 299 S.E.2d 8 (Consol. 1974); LAW 11-3.2 Ore- § & TRUSTS exemplary damages were recoverable be 30.020, (1983); gon, §§ OR. REV. STAT. -.080 pro to deter others and cause also served Virginia, VA. see also CODE 8.01-25 compensation. See abo Colorado, vide additional Johnson COLO. REV. STAT. 13-20-101 Rinesmith, 18-A, (Fla.Dist.Ct.App. (1973); Maine, 238 So.2d 659 ME. REV. STAT. ANN. tit. (Fla.1970). (1981); Massachusetts, 1969), cert. denied 241 So.2d 857 MASS. ANN. § 3-818 The court only punish- has succeeded in The court finds that one reason for ing deceased, awarding punitive damages compen- innocent heirs of the is to a injury sate for those elements of result cover- reminiscent of the feudal doctrine of Const, damages. ed an of award actual corruption I, of blood. art. Cf. Duke, Mayer cites 72 Tex. that, 21. I would hold under article (1889) S.W. for its statement that exemplary damages may not be assessed punitive damages compensate a claimant against a tortfeasor’s estate. for losses too remote to be considered as compensation. elements of It cites Allison POPE, C.J., BARROW, and McGEE and Simmons, (Tex.Civ.App. S.W.2d 206 JJ., join in this dissent. n.r.e.), —Waco writ ref’d proposition punitive damages compen- POPE, Justice, dissenting Chief on mo- sate for attorney inconvenience and fees. rehearing. tion for Early permitted pu- decisions this court respectfully I dissent. I would not visit nitive because law failed to punishment upon family the children and of recognize damages' required all of the to wrongdoer the deceased in either a criminal fully compensate plaintiff. Stuart v. Plaintiffs, action press- or a civil action. Western Union Tel.

ing right punitive damages Flanagan to recover S.W. 351 v. Womack & Perry, 54 Tex. person, from a dead accelerate the need for a reexamination of subject the whole punitive If presently are used punitive damages. The court holds that only to cloak additional elements of actual punitive damages pun- is to damages, they should not be allowed at all. ish, to deter by example, others and also to We are careful require to a measure of compensate for remote uncompensated and certainty in compensato- all other forms of damages. actual If those are the varied ry damages; why punitive should we allow purposes, punitive then awards for dam- damages to stand alone without stan- ages are not anchored to sound doctrinal dards or instructions necessary for recov- underpinnings. ery. punitive damages If subject puni- permit whole serve to tive for some kind of unmentioned study. needs compensation, how can we know that there Dorsey Ellis, Professor D. Jr. his arti- is recovery? punitive not a double If cle, Fairness and Efficiency in the Law of phantom mask elements of actual Damages, Punitive 56 S.CAL.L.REV. 1 damages, why plaintiff it that an (1982),explains concept that the punitive ordinary negligence case is denied those damages exists somewhere in the border- compensatory damages, illusive forms of torts, land between criminal law and but a can recover them when he plaintiff yet it has only received scant attention and proves gross negligence? example, For at- relegated is usually discussion a foot- torney negli- fees are not recoverable in a remedy note. Whether the is civil or crimi- case, gence should not be recov- nature, punitive damages nal in are award- guise ered under upon vague ed standards not found leg- We should no countenance this permitted criminal and not law the civil erdemain. We should address the matter assessing law all other kinds of dam- any uncompensated actual ages. forthrightly. Certainly per- we should not punitive damages mit to be an indirect agree I Spears’ with Justice dissent that collecting attorney method of fees. continuing sound basis for punitive damages they punish award is that Tangential forms of compensatory dam- wrongdoers. say To punitive damages ages, justifiably if puni- ever recovered as egregious serve as an and deter damages, tive items now added to the merely conduct is to state the catalogue of elements that have been care- punishment. isolated, articulated, fully explained provides earnings, past attorney suppress the anti-

juries. Past and future suffering, past pain conduct, future and future social needs some incentive to costs, expenses, medical funeral loss of so- bring proof required forward the extra consortium, disfigurement, ciety, loss of Cooter, punish the tortfeasor. See Eco- trauma, past emotional and future mental Analysis Damages, nomic Punitive anguish items that constitute recoverable 79, (1982). 90 n. 9 For S.CAL.L.REV. his Any make the victim whole. additional ac- attorney service the should a fair recover list; tual should be added fee, perhaps punitive one-third of the masquerade they should not be allowed to ages. permit recovery punitive If we damages. punitive good public a de- person, Since and deterrence are I ceased would divide that recov- punitive damages, and fees, true reasons for ery, attorney equally after between compensation to victims is not a since plaintiffs and the State’s General Fund. punitive damages, we need sound basis for relationship crimi

to examine between GONZALEZ, J., joins in dissent. this is the com nal and civil fines. Punishment always through run mon thread that has allowing punitive cases Texas (1847). Sherwood, 2 Tex.

Smith are not awarded for the aggrieved party, but are

benefit of good.

granted public to further the Cole v.

Tucker, v. Ro Graham der, (1849). They per are BAKER, Petitioner, Lynn T. “private remedy to become an mitted as public instrument of correction.” Graham Roder, damages, says at 150. Punitive HANSEN, Respondent. Richard (Tex. Cooper, 209 Cotton v. S.W. opinion adopted), App.1919, Comm’n “are No. C-3411. injured party, enrich the not awarded to Supreme Court of Texas. public good are intended rather for the but _” They compensation “quasi- for a are 24, 1984. Oct. act of commission or malfea criminal Rehearing Denied Nov. sance.” Press Co. v. Southern Cotton Bradley, 52 Tex. using punitive dam-

If we are to continue enforce- private system as a of law public stan-

ment for conduct that offends

dards, ways to we must consider innovative system. should receive

improve that Who money from the trial that en- derived im- public good? Should fines

forces wrongs pub-

posed for civil that offend go The tort victim is

lic to the state? whole; made that should be

entitled to be allowing compen-

accomplished by him full damage suffered. every kind of

sation asking why all

Some scholars go to the damages award should

victim, fine or it serves as a civil when pub- recovered to benefit the whole

penalty victim, who affords the means

lic.

Case Details

Case Name: Hofer v. Lavender

Court Name: Texas Supreme Court

Date Published: Jul 11, 1984

Citation: 679 S.W.2d 470

Docket Number: C-2552

Court Abbreviation: Tex.