Lucien J. HARMON and Bernice F. Harmon, Plaintiffs-Appellees, Cross-Appellants, v. GRANDE TIRE CO., INC., et al., Defendants, Central Bag Company, et al., Defendants-Appellants, Cross-Appellees.
No. 86-1238
United States Court of Appeals, Fifth Circuit
July 13, 1987
Rehearing Denied Aug. 12, 1987
821 F.2d 252
(1) the judge issuing the warrant must find that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous,”
18 U.S.C. § 2518(3)(c) ; (2) the warrant must contain “a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates,” id.§ 2518(4)(c) ; (3) the warrant must not allow the period of interception to be “longer than is necessary to achieve the objective of the authorization, []or in any event longer than thirty days” (though extensions are possible), id.§ 2518(5) ; and (4) the warrant must require that the interception “be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under [Title III],” id.
Biasucci, 786 F.2d at 510. We accept these as the standards under which an order for video surveillance may issue. We cannot add the other technical requirements of Title III because Title III does not cover video surveillance. We are not a legislature; we can mandate only those protections required by the Constitution. The above requirements protect the constitutional rights of those under surveillance as they have been announced by the Supreme Court.
The application of these standards undercuts Cuevas‘s primary contention. He complains that the letter of authorization did not come from the Attorney General or Assistant Attorney General as required in Title III,
Cuevas also contends that the false statement contained in the affidavit supporting the warrant application tainted the application and rendered the subsequent warrant invalid. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Franks held that if, setting aside an affidavit‘s false material, the remaining information is insufficient to establish probable cause, the warrant is void. The affidavit in this case, removing the one statement that Cuevas had been arrested while in possession of cocaine,5 is still sufficient to establish probable cause. Cuevas‘s claim cannot survive.
Because the government followed the proper procedures in obtaining a court order for video surveillance, we AFFIRM the appellant‘s conviction.
Paul W. Brown, Brown & Associates, Dallas, Tex., for plaintiffs-appellees, cross-appellants.
Before GEE, REAVLEY and JONES, Circuit Judges.
PER CURIAM:
Lucien and Bernice Harmon filed this negligence action seeking damages under Texas law for injuries arising from Mr. Harmon‘s automobile accident.1 Both sides appeal the judgment awarding damages against Central Bag Company. We eliminate that portion of the judgment awarding mental anguish damages to Mrs. Harmon and affirm.
I
In June 1982, Mr. Harmon was struck by an oncoming truck as he attempted to make a left turn at an uncontrolled intersection on an Oklahoma highway. That truck was owned by Grande Tire Company and driven by Joel McCaffrey. Shortly before the collision, a second truck, owned by appellant Central Bag Company, had attempted to make the same left turn, but had stalled in the median area between the two directions of traffic. The truck had run out of fuel and the driver, William Goodall, had hoped to make the left turn into a service station. When the truck stalled, Goodall turned on his emergency flashers, got out of the truck, and went to the service station to obtain some fuel. He did not set out any warning devices around his truck.
When Mr. Harmon approached the intersection, he pulled up behind the stalled Central Bag truck in such a manner that the truck obstructed his view of the oncoming traffic. He apparently stopped briefly, and then pulled out across the lanes of oncoming traffic, where he was struck by McCaffrey‘s truck. McCaffrey had seen the stalled Central Bag truck and slowed down briefly but resumed his normal speed when the truck did not appear to be moving. He did not see Mr. Harmon‘s car until it pulled out in front of him from behind the Central Bag truck. His attempts to brake and swerve out of the way were unavailing.
The Harmons sued the owners and drivers of both trucks. Prior to trial, they settled with McCaffrey and Grande Tire for $40,000. The case went to trial against Goodall and Central Bag, with McCaffrey‘s negligence also being submitted to the jury. The Harmons claimed that Goodall had been negligent in allowing his truck to run out of fuel and in failing to set out warning devices as required by state and federal regulation. They further claimed that Central Bag had failed to require Goodall‘s compliance with the federal regulations. The jury returned answers to special interrogatories apportioning the fault fifty percent to Mr. Harmon, forty percent to Goodall, and ten percent to Central Bag. The jury assigned no fault to McCaffrey. Damages were awarded for Mr. Harmon‘s medical expenses and lost earnings and for Mrs. Harmon‘s loss of consortium and mental anguish.
II
Central Bag first argues that the district court should not have entered judgment on the jury‘s finding that Central Bag was ten percent at fault. This argument is based on a supposed inconsistency in the jury‘s answers to the special interrogatories. We agree with the district court that no irrec
Several of the interrogatories to the jury addressed the fault of the defendants. The only one of these—Question No. 3—directed to Central Bag asked whether the plaintiff had proved that Goodall and Central Bag failed to comply with
The district court resolved this apparent inconsistency by concluding that the jury‘s answer to Question No. 3 established only that Central Bag itself had not failed to place the warning devices around the truck, not that Central Bag was free from all fault. Based on this reading of Question No. 3, the court determined that no interrogatory addressed Central Bag‘s independent fault for failing—as required by
We find no error in the district court‘s action. When an issue raised by the evidence or pleadings is omitted from the special interrogatories and neither party objects,
Central Bag asserts that the
We decline to engage in such gymnastics to find an inconsistency in the jury‘s findings. Question No. 3 simply asked whether Central Bag had complied with
Central Bag also contends the district court‘s factual findings of violation of the regulation and proximate cause were clearly erroneous. We disagree. Goodall testified that Central Bag had not given him any safety training in any form, other than posting a diagram at the Central Bag office of a truck with safety equipment around it. Central Bag did not present any evidence to rebut this testimony. Without elaborating on the measures that must be taken to comply with
III
Appellants4 next contend that the district court erred in denying them a continuance. A week before trial, appellants moved for a continuance on the ground that Goodall and J.W. O‘Bryan, Central Bag‘s representative at trial, were unavailable for trial. The motion asserted that Goodall‘s house had recently been destroyed by fire and that Goodall was at that time on a truck haul that would keep him unavailable for the entire time of the scheduled trial. As to O‘Bryan, the motion stated that he had recently undergone open heart surgery and would not be able to attend the trial. The district court denied the motion, but allowed appellants to take O‘Bryan‘s deposition shortly before trial. Apparently because of their opportunity to depose O‘Bryan and present his testimony at trial, appellants do not argue any prejudice from O‘Bryan‘s actual absence from the courtroom. Appellants do contend, however, that Goodall‘s absence was critical.
We find no error in the district court‘s action. “The grant or denial of a continuance is within the sound discretion of the trial judge.” Harvey v. Andrist, 754 F.2d 569, 572 (5th Cir.), cert. denied, 471 U.S. 1126, 105 S.Ct. 2659, 86 L.Ed.2d 276 (1985). Goodall‘s deposition had been taken approximately eighteen months prior to trial and Goodall testified extensively at that time as to all the circumstances surrounding the accident and his knowledge regarding the safety regulations at issue in the case. Much of this testimony, which was presented at trial, was favorable to the defendants. Moreover, appellants were free to present testimony from other representatives of Central Bag as to Central Bag‘s efforts to properly train Goodall. The district court also had evidence before it suggesting that appellants had lost contact with Goodall and that it might be some time before they would be able to produce Goodall for trial. Two previous trial dates had been lost at the defendants’ request, and the district court was concerned that another continuance would significantly delay an already overdue trial. Although the unavailability for trial of a party or other key witness ordinarily will persuade a judge to grant a continuance, under the circumstances of this case the district court‘s action was not abuse of discretion.
IV
Appellants next argue that the district court erred in submitting McCaffrey‘s neg
Appellant‘s argument is premised on their belief that a nonsettling defendant‘s request that the settling party‘s negligence not be submitted to the jury must be honored over the plaintiff‘s request to the contrary.5 Appellants’ premise, however, was undercut by the Texas Supreme Court in Cypress Creek. The Court there expressly disapproved of a court of appeals decision that suggested the negligence of a settling tortfeasor could not be submitted to the jury at the plaintiff‘s request. 640 S.W.2d at 866 (disapproving Deal v. Madison, 576 S.W.2d 409, 416 (Tex. App.—Dallas 1978, writ ref‘d n.r.e.)). We take this as an authoritative interpretation of the statute against appellants’ position. Because the Harmons demanded that McCaffrey‘s negligence be submitted to the jury, the district court acted properly in so doing despite appellants’ objection.6
V
Appellants next challenge the award to Mrs. Harmon of damages for mental anguish. The special interrogatory addressed to Mrs. Harmon‘s damages asked the jury to determine what amount would compensate her for (1) the loss of her husband‘s companionship, and (2) emotional stress and anguish. The jury awarded $90,000 for loss of companionship and $90,000 for mental anguish.7 Appellants contend the award for mental anguish damages is not justified under Texas law. We agree.
Although the whole of law relating to mental anguish damages is quite complex, the Erie question we face is relatively narrow: can a person recover for mental anguish arising from injuries negligently inflicted upon her spouse when she did not witness the accident,8 her spouse did not
While the majority opinion in Garrard is broadly written, we read it as being directed only to the matter of proof. The traditional tort concepts have not been eliminated, and the Texas plaintiff continues to bear the burden to prove foreseeability as an element of proximate cause. No Texas case establishes the initial right of Mrs. Harmon to recover mental anguish damages, entirely aside from the physical manifestation requirement. The rule in Texas in recent years has been that recovery for mental anguish by persons not directly injured by the defendant‘s conduct is limited to those persons who meet a “bystander” test of foreseeability based largely on the seminal decision in Dillon v. Legg, 68 Cal.2d 728, 441 P.2d 912, 69 Cal.Rptr. 72 (1968). See Landreth v. Reed, 570 S.W.2d 486 (Tex. Civ. App.—Texarkana 1978, no writ); General Motors Corp. v. Grizzle, 642 S.W.2d 837 (Tex. App.—Waco 1982, writ dism‘d); Hastie v. Rodriguez, 716 S.W.2d 675 (Tex. App.—Corpus Christi 1986, writ ref‘d n.r.e.). Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983), extended recovery to wrongful death plaintiffs, but we are aware of no Texas negligence case in which mental anguish damages have been awarded to a third party not either a bystander or a wrongful death plaintiff. Cf. Jannette v. Deprez, 701 S.W.2d 56, 61 (Tex. App.—Dallas 1985, writ ref‘d n.r.e.) (“In Texas only two situations exist in which one other than the victim of a tort may receive damages for ... mental anguish. The first is in a death case brought under the Wrongful Death Act. The second is in a bystander case....” (citations omitted)); Bennight v. Western Auto Supply Co., 670 S.W.2d 373, 378 (Tex. App.—Austin 1984, writ ref‘d n.r.e.).10
In some circumstances we have been willing, in our role of deciding the case as a state court would, to acknowledge a modest expansion in the law generally and decide a case in light of a new rule. See, e.g., Mozingo v. Correct Manufacturing Corp., 752 F.2d 168, 174-75 (5th Cir. 1985). As a rule, however, we do not “adopt innovative theories of recovery or defense for Texas law, but simply ... apply that law as it currently exists.” Galindo v. Precision American Corp., 754 F.2d 1212, 1217 (5th Cir. 1985). This principle dictates that we reject Mrs. Harmon‘s position. The broad rule she suggests is unprecedented not only in Texas, but apparently in other jurisdictions as well. In light of longstanding reluctance of the courts to allow recovery for mental anguish and the measured steps of the Texas courts in relaxing barriers to such recovery, we cannot confidently say that the Texas court would allow recovery in this case. We therefore eliminate from the judgment the award of damages for Mrs. Harmon‘s mental anguish.
VI
Appellants’ final argument and Mrs. Harmon‘s cross-appeal can be easily disposed of. Appellants contend that the district court erred in awarding prejudgment interest on the damage award because the award was not segregated into past and future damages. See Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 556 (Tex. 1985). The district court reasoned that because Mr. Harmon died before trial of causes unrelated to the accident, any damages his estate or Mrs. Harmon could recover necessarily were incurred prior to trial. With the elimination of Mrs. Harmon‘s mental anguish award, we believe the district court was clearly correct. The jury awarded damages for Mr. Harmon‘s medical expenses and lost earnings, for the damage to the Harmons’ car, and for Mrs. Harmon‘s loss of consortium. All of this damage necessarily was incurred prior to trial and prejudgment interest was properly awarded. See Benavidez v. Isles Construction Co., 726 S.W.2d 23, 25 (Tex. 1987) (allowing recovery of prejudgment interest on identifiable portion of damage award necessarily accrued prior to trial even though special interrogatories did not explicitly require segregation).
On cross-appeal, Mrs. Harmon contends that the district court should not have reduced her recovery by the amount of her husband‘s comparative fault. She relies on the decision in City of Denton v. Page, 683 S.W.2d 180 (Tex. App.—Ft. Worth 1985), rev‘d on other grounds, 701 S.W.2d 831 (1986). We have previously rejected this portion of Page as inconsistent with controlling Texas law. Mayo v. Tri-Bell Industries, Inc., 787 F.2d 1007 (5th Cir. 1986). In any event, our elimination of the mental anguish damages makes even reliance on Mayo unnecessary as to those damages and Mrs. Harmon now concedes that her loss of consortium damages were properly reduced as derivative of her husband‘s claim. See Mayo, 787 F.2d at 1010; Whittlesey v. Miller, 572 S.W.2d 665 (Tex. 1978).
VII
We affirm the judgment in all respects except for the award of mental anguish damages. The judgment of the district court is modified to eliminate the $45,000 awarded to Mrs. Harmon for mental anguish, and as MODIFIED is AFFIRMED.
I dissent only from the denial of the award, based upon a jury verdict, of mental anguish damages. It seems clear to me that the Supreme Court of Texas would not forbid, as a matter of law, the recovery by the wife of these damages.
In several recent decisions, the Texas Supreme Court has indicated its displeasure with longstanding barriers to recovery of damages for mental anguish. In Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983), the court overruled extensive precedent and allowed recovery of mental anguish damages by wrongful death plaintiffs. In Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986), the court held that in such wrongful death actions the plaintiff need not show a physical manifestation of his or her mental anguish. Most recently, and most significantly for this case, the Texas Supreme Court has extended these rulings by holding that “proof of physical injury is no longer required in order to recover for negligent infliction of mental anguish.” St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649 (Tex. 1987), reh‘g denied, 30 Tex. Sup. Ct. J. 479 (June 17, 1987).
Unlike the majority, I read Garrard as unambiguously signalling the Texas court‘s desire to abandon all artificial restrictions on mental anguish recovery, including the bystander test used by the majority to defeat Mrs. Harmon‘s claim. That test, followed in recent years by intermediate Texas courts, holds that mental anguish suffered by a person as a result of injury to another is not foreseeable unless the person actually observed the injury-producing conduct. See, e.g., Landreth v. Reed, 570 S.W.2d 486 (Tex. Civ. App.—Texarkana 1978, no writ); Jannette v. Deprez, 701 S.W.2d 56, 61 (Tex. App.—Dallas 1985, writ ref‘d n.r.e.). As the majority opinion demonstrates, the bystander test operates mechanically to deny recovery as a matter of law without any further inquiry into the foreseeability of the plaintiff‘s injury. The Texas Supreme Court, however, has never explicitly adopted this test and Garrard leads me inescapably to the conclusion that the Texas court would grant Mrs. Harmon recovery despite her absence from the scene of the accident.
In abandoning the physical manifestation requirement, the Texas court, noted that “[d]evelopment and administration of the tort [of negligent infliction of mental distress] have been inconsistent and confusing.” 730 S.W.2d at 651. It announced its desire to “insure the public is free from unwarranted restrictions on the right to seek redress for wrongs committed against them,” id. at 654 and decried the physical manifestation requirement as just such an “arbitrary restraint,” id. at 651. The court approvingly observed that the seminal Texas case on negligent infliction of mental anguish, Hill v. Kimball, 76 Tex. 210, 13 S.W. 59 (1890), had, with the exception of requiring a physical manifestation, granted recovery for mental anguish “using traditional tort concepts.” Garrard, 730 S.W.2d at 652.1 This analysis—especially in light of a narrower ground for decision2—is strong evidence that the Texas court would not refuse recovery to a spouse of a seriously injured person on the sole ground that the spouse did not actually observe the accident. Inasmuch as the Texas court would allow Mrs. Harmon to recover had her husband died as a result of
Distinctions exist, of course, between a plaintiff who viewed the accident and one who did not, and between a plaintiff whose loved one died and one whose loved one survived. It is more likely, and thus in a sense more foreseeable, that the plaintiff who actually witnessed the accident will suffer a serious mental injury. Similarly, death of a loved one is in many cases more traumatizing than even a serious injury to a loved one. I do not suggest that no rational basis exists for cutting off liability when the plaintiff did not witness the accident and no death ensued. I am persuaded, however, that the Texas court would view these distinctions as insufficient to justify a rule mechanically precluding recovery to persons who can demonstrate a real mental injury. In expanding recovery for mental anguish, the court has not focused on narrow distinctions but has instead emphasized the reality of emotional injuries and condemned legal rules that artificially restrict recovery for such injuries. To state that witnesses to an accident often suffer mental injury is not to deny that severe mental anguish also is suffered by the person who receives the dreaded phone call that her spouse has been injured in a car accident. Nor does the trauma of death diminish the reality of seeing a loved one endure the pain and suffering of a severe and lingering injury. Again, I note that Mrs. Harmon would be granted recovery had her husband died from the accident. I think the Texas court would view her emotional injury as no less real, and no less foreseeable, simply because her husband survived the accident.