*1 Dec. 1989. ROBERTSON, Before CANNON and ELLIS, JJ. Rehearing Denied Jan.
OPINION CANNON, Justice. appeal regarding personal
This is an lawsuit. June of William injured Lester Vaughn, manager of a Pasadena bar. *2 injuries, any. if fight Reagan’s Vaughn attempting up was to a cause of David break if by percentage, the stating involving Reagan Reagan in Answer when hit percent- opposite each name. The Reagan any, suf- the head with a bat. baseball per- The ages you find must total func- 100%. fered a severe and now brain ato centage negligence of attributable seven-year-old tions at the level of a six- or by the necessarily measured is not Reagan daughter party minor Ju- child. and his omissions found. Vaughn number of acts or Keith Nichols and lia sued and Rosenovac, the owners of the bar. Ernest Vaughn 20% A. Lester Nichols, Individually and Keith J. B. jury Vaughn, A found Nichols and Roseno- 20% d/b/a K-Jacs Reagan negli- negligent and vac 60% 40% Rozenovak, Individually Ernest and C. gent. jury The awarded in the d/b/a K-Jacs 20% $405,- 40% $2,432,000 Reagan D. David of to and amount 100% TOTAL: Julia, the trial entered 000 to and judgment Vaughn, Nichols and them. Er- and that Keith Nichols It is obvious appeal judgment Rosenovac that with differently in Rosenovac are identified nest points in twelve of error. We find error Question in Questions and 3 because the award of “in- are followed the words their names modify judgment the to those delete Appellants dividually and K-Jacs.” damages. judgment We the as affirm a result of the difference maintain as modified. entering wording, the erred in in trial court 1) the against them because complain Points of error one five of the contain all jury’s verdict did not Questions argued jury óf 1 and 3 and are 2) recovery; the ver- of elements essential together. questions, Those as well as support entry of the dict as a whole did Question read as follows: 3) file a mo- failed to judgment; appellees to disregard the answers to tion QUESTION 1 3C; 4) was no 3B there Questions any, if negligence, Was the of the Defen- the submission to evidence proximate injuries dants cause 3B; 5) Question there was no Reagan? David Question 3C. support the submission separately Answer “Yes” or “No” as to argument is that gist appellants’ each. in negligent have been parties found to Vaughn A. Lester Yes as IB are not the same Questions and 1C B. Ernest Rozenovak Yes of fault percentage parties whose Keith C. J. Nichols Yes 3C. Questions 3B and inquired about QUESTION 2 if negligence, any, Was of David Appellants’ contention fails Reagan proximate injuries cause of the place, appel several reasons. In the first Reagan? to David of obtaining lants bore burden a find “Yes” Answer or “No.” comparative on the negligence issue Answer: Yes and, consequently, submitting the issue you any part If have answered “Yes” to substantially form. correct Estate of Question “Yes” to 1 and Transp. Pac. Southern Clifton following Question: answer the then (Tex.1986); S.W.2d see also John Swain, son QUESTION 3 Furthermore, appellants argu waived their percentage negligence of the What by failing object ment form of caused, part, or in Rea- whole prior question jury. to its submission to the you from a injuries, any, do find gan’s Tex.R.Civ.P. 274. of the evidence is attribut- preponderance however, appel parties? importantly, More to each of the Answer able any differ person lants fail to articulate material negligence whose as you questions. In their proximate ence in the answer found been a general denial, Nichols and Rosenovac years ago (with Three this court jus one styled Nichols, themselves as Keith J. dissenting) Indi tice declined to extend right vidually K-Jacs, and d/b/a cases, Ernest Ro- these stating that the senovac, Individually decision to and d/b/a create a K-Jacs. new cause of action Stipulations legislature made was one for the before trial or referred to *3 court. parties Hughes the Drilling Fluids, the same manner. Appel Inc. v. Eubanks, 759, 729 S.W.2d lants also never 762 any (Tex.App.— raised issue about the 1986), capacity in 742 S.W.2d they [14th which 275 Dist.] were sued. Finally, (Tex.1987) (writ granted, Question set predicated 3 was on an affirma aside and cause remanded for consideration tive answer any part Question 1 and parties’ agreement). settlement Since stated following: the only “Answer as to then, however, legislature neither the nor person the negligence whose was found supreme the court has addressed this issue you proximate to have been a cause of directly, appellate and the courts continue Reagan’s injuries, any.” We do recognize refuse to such a cause of not think jury the was confused as to the action. Co., Graham v. Ford Motor 721 parties, and we points overrule of error 554, S.W.2d 555 (Tex.App.—Tyler 1986, no one, two and three. writ); Ramos v. Champlin Co., Petroleum points In five, of error four and 873, 750 S.W.2d 878 (Tex.App.—Corpus complain lants there was no evidence to 1988, denied). Christi writ The Fifth Cir support Questions the submission of 3B cuit has and, considered the issue as well 3C; however, they do not address “[ajfter wading through the uncertain points these argument. ap- Since thicket of present-day law,” Texas tort con pellants do not attack the sufficiency of the cluded that no such cause of action exists. Questions evidence regarding 2, 1 and we In re Air Crash at Dallas/Fort Worth they only assume mean that there was no 2, Airport August on 856 F.2d 29 support the submission of (5th Cir.1988). Questions 3B and in3C the form to which support In judgment, appellees the objecting. are now Given that argue already provides that Texas law we find no material ques- difference the parental loss of They point consortium. tions, if there was support evidence to the out that at least one court has Questions submission of 1 and then the held that to the filial relationship same Moreover, was true of compensable. Birchfield, Hall v. 718 one need look at pleadings S.W.2d (Tex.App.—Texarkana 338 stipulations Ques- to see that the form of 1986), rev’d on grounds, other 747 S.W.2d tions 3B and 3C was correct. Points of (Tex.1987). Appellees 361 also cite several error four and five are overruled. supreme standing court decisions as for the Questions In 5C, answer to 5D and principle family that the nuclear worthy 5E, jury awarded to David protection in circumstances of either Reagan’s daughter Julia for paren loss of injury. Miller, death or Whittlesey v. care, tal guidance nurture and past and for (Tex.1978); S.W.2d 665 Sanchez Schin anguish. future mental points In of dler, (Tex.1983); S.W.2d Cavnar v. eleven, error six appellants argue Inc., Quality Parking, Control 696 S.W.2d that there was no evidence to (Tex.1985); Piper Yowell v. Aircraft questions and, further, submission of these Corp., 703 In addi that there was sup insufficient evidence to tion, appellees refer us to Salinas v. Fort port answers. In point of error Baggage argue Worth Cab & Co. twelve, appellants assert the trial court in that appeared ease the erred in entering judgment for Julia Rea recognize right impair to recover for gan because Texas does not relationships. ment of familial cause of action in plaintiff favor of a minor (Tex.1987)(minor children allowed for loss of consortium in a non- impairment to recover for relationship wrongful death case. with father who abandoned them after very that he was raped). appellees ar sister Donita stated Finally, mother was father, and tes- his sister Dale gue logic that the force of cases from affectionate and Julia had a close judg trial court's tified that he other states thought Reagan relationship. Dale ment and it would be unconstitutional youth. considering his open provision limit father under the courts remarkable army parent-child served in for several consortium service, When he left could years. death cases. job, his wife Tressa worked not find a so Supply Auto Bennight Western babysat. Dale that Rea- and he testified daughter both the husband and took her constantly had Julia gan sought injured party compensation for loss him. Tressa later filed everywhere with (Tex.App. of consortium. 670 S.W.2d *4 divorce, not Reagan did want for a which n.r.e.). —Austin writ ref 'd The Aus as he would not with Julia because be tin Court that a cause of of held However, babysit he continued to much. of was action loss consortium Tressa while worked. not under the of state allowed laws this 1980, Reagan that not of an In March of arrived in Tex- and it was the role interme spend time diate court to create a cause from Indiana to some with new as However, phone, of action. at He to Julia on the Id. 379-80. Donita. talked stated, hurt, he he court also “It is difficult ‘on the and the week that was told her justice returning reach he basis natural the conclu was Indiana because type Reagan was injured sion that this of action will not lie.’ missed her so much. Hospital, and in Texas until he Sibley Hill Memorial in June remained (D.D.C.1952).” in F.Supp. parents’ Id. taken to his home at could be return, reality” The after his Tressa and court noted “obvious Indiana. Soon injuries Reagan parent telling such to the child when moved their Julia without injuries Reagan suffers in testified that the kind sustained destination. Dale thinking night Bennight. The court noted about Julia at also the incon would start members, gruity allowing cry. family things got quiet certain and would Dale when others, Florida, substantially not and but recover for Tressa and Julia located daughter. the same his by Reagan harm suffered each. Id. wrote and called However, birthday, Reagan’s on Julia’s dispute reasoning. It is difficult to that so could mother called her that he talk certainly The in this case by stepfather and was her never to her told Mancini, Reagan’s Ralph Julia loss. Dr. a then see or talk again. Reagan call did not specialist physical medicine and rehabili- to Indiana to Julia until she moved back tation who examined David testi- later, bought years but he her several Reagan permanent fied that a suffers from birthday presents kept and and Christmas disability improve that will not substantial- for her. them ly. requiring supervision terms making relationship, judgments, present he is like a child of five As for their Dale thirty dressing, feeding, or six. Aside from walk- lives about miles testified that Julia television, ing watching depend- her and sees him when she from father They people. prob- on has time her aunt. spends ent other He severe with watch and he her memory, problem-solv- together, lems the areas of asks about television Dale also thinking. school her activities. stated abstract she from conversations with that knows Appellants assert that there minimal was by mother that Julia is embarrassed Julia’s regarding evidence introduced at trial is now her father’s condition. Julia about relationship between Julia and her father. disabilities, Obviously, given his thirteen. nor We find Neither Julia otherwise. her little Reagan provide can with testified, Reagan but two of his sis- “care, guidance.” nurture and Basically, testimony did. was ters However, despite the evidence and the married at seventeen and be- against right of recov- very young. arguments a His or a came father while still ery parental consortium, for loss of supreme While the expressly court has not whether, cases, extended issue remains such absent clear-cut its deci- supreme mandate, sions in legislative court or Salinas v. this Fort Worth Cab & Baggage (Tex.1987) court can such a cause of action. S.W.2d 701 regard, In that interpret we do not v. Texarkana Memorial Birchfield Hosp., (Tex.1987) appellees providing suggest cases cited as us S.W.2d 361 that it is close doing with clear-cut mandate. As we so. In Sanchez v. Schindler, changed stated, our mind on the role of the court “This court recognized has previously late court since our decision in the that injuries Eu- case, the familial relationship significant banks we continue to adhere to in- juries present Perhaps and are worthy compensation.” law. the dissent in this provide (Tex.1983). case will court an The with referring opportunity to review the issue. to its decision in Whittlesey spouse Miller that either has a cause of Appellees argue also action for loss of consortium suffered aas any objection have waived to the mental result injury of an spouse to the other anguish damages point because their caused negligence. tortfeasor’s asserting error twelve no cause of action *5 parental addresses loss consortium. Reagan’s relationship with her father is However, appellees also make the follow equally significant. Appellants statement: “Because did I point also think authority not raise a of error on whether there this court has the recognize such a is cause of action Texas for mental claim. See Poole v. El Corp., anguish, despite Chico 713 S.W.2d they (Tex.App. dis fact 1986), —Houston brief, point cussed this issue in their and re [14th Dist.] aff'd manded, added). (emphasis of error is waived.” this briefing Even technical rules of are not case with, complied damages award of pass court will Julia and I would affirm the sufficiency judgment. on both the of the entire merits point light arguments of statement and
thereunder. Oil Co. v. Modesta Part 3-C
nership, (Tex.App.— n.r.e.).
Austin writ ref’d The state arguments point
ment and twelve, appellants’ objec
error as well as 5C, trial,
tions 5D and 5E at contesting make clear that William P. VERKIN Verkin anguish damages, the award of mental Properties, Appellant, they find not waived objections. Points of error six eleven are overruled. Point of error ONE, twelve SOUTHWEST CENTER LTD., sustained. Appellee. of the trial We affirm No. 01-88-00785-CV. regarding court with the modification Texas, Court of Reagan. award of (1st Dist.). ELLIS, Justice, dissenting. Dec. 1989. respectfully majority’s I from the dissent Rehearing Denied Feb. regarding opinion the award of Reagan. I think that Texas Julia law
should a minor child’s claim for par- consortium when the
loss negligently injured by party. a third
ent is