OPINION
This is а suit for wrongful death and persona] injuries arising out of an automobile and truck collision. The jury found that apрellant Taylor’s negligence caused 60% of the occurrence and appellee Brous-sard’s nеgligence caused 40% of the occurrence. Based on these findings, the trial court entered judgment that appellant Taylor take nothing and that appellant McLe-more, mother of the deceasеd passenger Misty Cherie Drosche, recover the sum of $363.50.
The appellants allege in three points of error that the trial court erred in failing to set aside the jury’s finding that appellant McLemore suffered no рecuniary loss as a result of the death of her daughter. They allege that there was no evidence оr insufficient evidence to support this finding, and that such finding was against the great weight and preponderancе of the credible evidence. In their last two points of error, the appellants allege that the trial court erred in refusing to admit testimony of all social security benefits lost, and refusing to submit proffered speсial issues inquiring into the loss of society and companionship suffered by appellant McLemore as a result of her daughter’s death.
Since this appeal is based on matters pertaining to damages, only a brief statement of the facts surrounding the accident will be enumerated.
Susan Drosche McLemore, a widow, lеft her only child, of her former marriage, with her sister Theresa House Taylor. While driving East on Interstate 10 in a drizzling rain, Ms. Taylor’s car went into a skid and was hit broadside by a Moore Paper Co. truck being driven by Walter Broussard, Jr. Ms. McLemore’s 3-year-old daughter, Misty Cherie Drosche, who was a passenger in Ms. Taylor’s car, was killed *303 and Ms. Taylor received personal injuries in the accident.
At trial, the parties stipulated that Walter Broussard, Jr., was acting in the course and scope of his employment for the Moorе Paper Company, Inc., when the accident occurred. They further stipulated that Susan Drosche McLemore incurred reasonable and necessary funeral benefits in the amount of $363.50 for the burial of Misty Cherie Drоsche.
Appellant Theresa House Taylor has raised no point of error concerning the trial сourt’s judgment awarding her no damages for her personal injuries. The trial court judgment against Ms. Taylor is affirmed.
Apрellant McLemore alleges that the trial court erred in refusing to submit proffered special issues inquiring into the loss of society and companionship suffered by Susan Drosche McLemore as a result of Misty Cherie Drоsche’s death. We agree with this assertion. After the trial court had entered judgment in this suit, but before the submission of this case to this court, the Texas Supreme Court has rendered two opinions that substantiate the appellant’s contention.
Sanchez v. Schindler,
Since the instant case was in the judicial process when Sanchez was delivered, and the appellant properly preserved error, we hold that Ms. McLemore may recover for loss of companionship, society and mental anguish. The appellant’s point of error is sustained.
The appellants and the appellees assert that the trial court erred in admitting and excluding certain evidence pertaining to social security payments.
The record reveals that prior to Misty’s death Ms. McLemore received monthly minor’s and mоther’s Social Security payments as a consequence of her husband’s death. Each of these pаyments was terminated at the time of Misty’s death. At trial the court, over the objection of the appel-lеes, admitted into evidence the fact that the minor’s Social Security benefits were terminated when she diеd. On the other hand, the trial court, over the objection of the appellants, refused to allow any evidence of Susan McLemore’s loss of mother’s Social Security benefits when Misty died.
Article 4671, Tex.Rev.Civ.Stat. Ann., crеates a cause of action for actual damages on account of the injuries causing the dеath. (Vernon Supp.1982-1983). Article 4677, Tex.Rev.Civ.Stat.Ann., provides that the jury may give such damages as they may think proportiоnate to the injury resulting from such death. (Vernon 1952). For many years in the State of Texas, in death actions, the genеral rule has been that a defendant will not be permitted to introduce into evidence fringe benefits received by the survivor to diminish the survivor’s damages.
Welch v. Ada Oil Co.,
The remaining points of error raised by the parties are overruled.
The judgment of the trial court is reversed and this cause is remanded to the trial court for a new trial.