Air Florida, Inc. v. Zondler

683 S.W.2d 769, 1984 Tex. App. LEXIS 6927

• Court: Court of Appeals of Texas
• Decided: December 4, 1984
• Docket: 05-83-01261-CV
• Status: Published

Opinions

ALLEN, Justice.

Air Florida, Inc. has filed a limited appeal challenging the portion of the trial court’s judgment which awarded non-peeu-niary damages to Carolyn, William, Jr., and Patrick Zondler for the wrongful death of William Zondler, Sr. Air Florida contends that non-pecuniary damages can only be awarded for the wrongful death of minor children, that the award of damages for both mental anguish and loss of society amounted to a double recovery, and that there was no evidence to support the damage award for mental anguish because there was no evidence that any of the Zon-dlers suffered any physical injury accompanying their mental anguish. We reject Air Florida’s first two contentions but agree that there was not the requisite proof of physical injury to support an award of damages for mental anguish to any of the Zondlers. In addition, we reject the Zon-dlers’ cross-points that the trial court erred in failing to award prejudgment interest and that the jury’s finding that William Zondler, Sr. suffered no pain or mental anguish before his death was against the great weight and preponderance of the evidence. Consequently, we reform the judgment to eliminate the damage awards for mental anguish and affirm as reformed.

William Zondler, Sr. was killed in the widely-publicized crash of an Air Florida jetliner in Washington, D.C. The jet crashed through a bridge and into the Potomac River. Air Florida admitted liability by stipulation, and the parties tried the case solely on the issue of damages. The trial court’s judgment awarded Carolyn Zondler, William Zondler, Sr.’s wife, $1,500,000.00 for pecuniary loss, $500,-000.00 for loss of consortium, and $300,-000.00 for mental anguish. It awarded William Zondler, Jr. and Patrick Zondler, the deceased’s sons, $20,000.00 each for pecuniary loss, $50,000.00 each for loss of companionship and society, and $50,000.00 each for mental anguish.

Air Florida challenges the judgment first on the basis of its position that awards of non-pecuniary damages in wrongful death cases are limited to the situation in which deceased is a minor child. Air Florida grounds its argument chiefly on two premises: (1) the general rule in Texas has always been that non-pecuniary damages are not recoverable in wrongful death actions and (2) the precise holding in Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983), that a parent can recover non-pecuniary damages for the wrongful death of a minor child, is limited to its facts. Hence, Air Florida argues, although Sanchez created an exception to the general rule against nonpecuniary recovery, that exception is applicable only in the case of a minor child’s wrongful death. Air Florida buttresses its position by noting that the majority in Sanchez declined to adopt the broad language of Justice Ray’s concurring opinion, which urged the court to hold explicitly that any family member could recover non-pecuniary damages. In addition, Air Florida argues that there is a special rationale for allowing non-pecuniary recovery only in the case of a minor child, namely, that minor children in modern society produce, for the most part, no pecuniary value for their parents and that continued application of the old rule to eases in which a child is killed would almost universally exclude recovery by the bereaved parents. This, Air Florida says, is a particular injustice which the Sanchez court found necessary to correct. Air Florida insists that Sanchez addressed no other or broader injustice than this effective denial of recovery in all wrongful death cases in which a minor child was the family member killed.

After close examination of the Sanchez opinion, we cannot accept Air Florida’s analysis of the supreme court’s decision.

When we look at the cases the supreme court overruled in footnote 2 of its opinion, Sanchez, 651 S.W.2d at 251, we conclude that the supreme court in Sanchez rejected completely the rule that there can be no recovery of non-pecuniary damages in wrongful death cases. The supreme court in footnote 2 overruled a number of cases in which the deceased was not a minor child. In those cases, the court could only have been overruling the language enunciating the former rule that non-pecuniary damages are not recoverable. For example, the supreme court overruled March v. Walker, 48 Tex. 372 (1877), the oldest case and progenitor of the pecuniary loss rule in Texas. See Sanchez, 651 S.W.2d at 252. In March v. Walker, the guardian and next friend of the decedent’s minor children had brought the wrongful death action. March v. Walker, 48 Tex. at 373. Footnote 2 singles out page 375 of the March v. Walker opinion as the page containing the portion of that decision which the Sanchez court meant to overrule. The relevant language in March v. Walker, 48 Tex. at 375, is as follows:

The language of the [wrongful death] statute “damages proportioned to the injury resulting from such death,” is the same as ... the English statute, and it is well settled, that the damages given by such statutes are measured by the pecuniary injury to the respective parties entitled, including the loss of prospective advantage. The measure of damages is not the same as when a party himself sued for injuries received, and recovers compensation for physical and mental suffering.

Thus, the Sanchez court in footnote 2 overruled none other than the original pronouncement limiting recovery in wrongful death actions to the pecuniary loss.

Clearly, the rationale behind the Sanchez holding completely rejects the notion that wrongful death recovery must be limited to pecuniary loss. We disagree with Air Florida’s contention that a special rationale concerning minor children animated the Sanchez decision. The universal denial of recovery to bereaved parents of minor children would not be harsh and unjust if non-pecuniary losses were not real losses which demand compensation. See Sanchez, 651 S.W.2d at 252 (non-pecuniary losses are “significant injuries ... worthy of compensation”), citing Whittlesey v. Miller, 572 S.W.2d 665, 668 (Tex.1978) (loss of consortium is compensable damage). Denying recovery for these real losses to adult children who have lost a parent, to parents who have lost adult children, or to husbands and wives who have lost their spouses would be equally harsh and unjust, especially in those cases in which for some reason the adult wrongfully killed would not have provided pecuniary benefits. See Sanchez, 651 S.W.2d at 252 (“[a] parent’s claim for damages for the loss of companionship of a child is closely analogous to the loss of consortium action created in Whittlesey ”). Finally, the majority opinion’s failure to adopt the broad language of Justice Ray’s concurrence signifies little. It is wise jurisprudence for a court to confine its holding to the facts actually before it, whatever logical implications the rationale for its holding might have. Indeed, a Texas court has no power to determine questions not essential to the decision of the controversy before it. Firemen’s Insurance Co. of Newark, New Jersey v. Burch, 442 S.W.2d 331, 333 (Tex.1968); McKenzie v. McKenzie, 667 S.W.2d 568, 570 (Tex.App. — Dallas 1984, no writ); Davis v. Dairyland County Mutual Insurance Co. of Texas, 582 S.W.2d 591, 593 (Tex.Civ.App. — Dallas 1979, writ ref’d n.r. e.).

A majority of the Texas Court of Appeals decisions which have faced the question before us agree with our conclusion that non-pecuniary losses are recoverable even when the decedent is not a minor child. Missouri Pacific Railroad Co. v. Dawson, 662 S.W.2d 740, 741-42 (Tex.App. —Corpus Christi 1983, writ ref’d n.r.e.) granted non-pecuniary damages to a widow for the wrongful death of her husband and stated that either spouse coúld recover loss of consortium damages in a wrongful death action. The same Corpus Christi Court of

Appeals, in Lavender v. Hofer, 658 S.W.2d 812, 817 (Tex.App. — Corpus Christi 1983), affd in part, rev’d in part, all on other grounds, 679 S.W.2d 470 (1984), approved an award to parents of non-pecpniary damages for the death of a child who, according to the Texas Supreme Court opinion, was eighteen years old. 679 S.W.2d at 471. The El Paso Court of Appeals, in Moore v. Lillebo, 674 S.W.2d 474, 476 (Tex.App. — El Paso 1984, no writ), allowed an award of non-pecuniary damages for the death of an adult child, as did Houston’s First Supreme Judicial District Court of Appeals in City of Houston v. Stoddard, 675 S.W.2d 280, 285 (Tex.App. — Houston [1st Dist.] 1984, writ ref’d n.r.e.). There is only one case, from the Fort Worth Court of Appeals, which holds that, under Sanchez, non-pecuniary recovery is limited to cases in which the decedent is a minor child. Piper Aircraft Corp. & United Fire Insurance Co. v. Yowell, 674 S.W.2d 447, 461-62 (Tex.App. — Fort Worth 1984, no writ). In any event, for the reasons already stated, we cannot accept the Fort Worth court’s interpretation of Sanchez.

We hold that recovery of non-pecuniary damages in wrongful death actions is allowable for plaintiffs other than the parents of a minor child wrongfully killed. In particular, the spouse and adult children of a person wrongfully killed may recover such damages.

The next question is the nature of the non-pecuniary damages that are recoverable. Air Florida says that the non-pecuniary damage which a death in the family brings, even if called “loss of companionship and society,” really amounts to nothing more than mental anguish. We cannot agree. Loss of companionship and society (or consortium, which includes companionship, society and sexual relations) and mental anguish are distinct items or kinds of damage. Loss of companionship and society is the loss of a good, which loss in itself is compensable. See Whittlesey v. Miller, 572 S.W.2d at 667-68, cited in Sanchez, 651 S.W.2d at 252. Mental anguish is an additional consequential result of the loss of that good. A death in the-family might leave one emotionally numb, unable to feel grief; yet, even so, the loss of the loved one’s society, of the good things that come from being with that person, would be nonetheless real. Even when normal grief subsides, as it usually does, the loss of the good in the deceased’s companionship still persists. It is consequently not surprising that the decisions squarely addressing this question agree that loss of society and mental anguish are distinct items of recovery. Gulf State Utilities v. Reed, 659 S.W.2d 849, 852-53 (Tex.App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.), accord, Moore v. Lillebo, 674 S.W.2d at 477. (Missouri Pacific Railroad v. Dawson states in dictum that these items are “conceivably” distinguishable. Missouri Pacific Railroad, 662 S.W.2d 742-43.) We hold that plaintiffs in a wrongful death action may recover both for loss of society (or consortium) and for mental anguish.

Finally, we consider Air Florida’s contention that the Zondlers were not, in any case, entitled to recover for mental anguish. First, Air Florida argues that plaintiffs in this case were not in the “zone of danger” when William Zondler, Sr. died, had no “contemporaneous perception” of the accident, and thus should not recover damages for mental anguish. Air Florida urges this court to find that the Texas Supreme Court erred in Sanchez when it held that a wrongful death plaintiff need not have been in the “zone of danger” or have had a “contemporaneous perception” of the accident to recover for mental anguish. Sanchez, 651 S.W.2d at 254 n. 6. Of course, this court has no authority to find that the Texas Supreme Court has erred. Swilley v. McCain, 374 S.W.2d 871, 875 (Tex.1964); Woodard v. Texas Department of Human Resources, 573 S.W.2d 596, 598 (Tex.Civ.App.—Amarillo 1978, writ ref’d n.r.e.).

Air Florida’s second argument on the issue of the Zondlers’ entitlement to mental anguish damages is more substantial. Air Florida contends that the Zon-dlers have not proved the physical injury required for recovery of mental anguish damages. Before Sanchez, the Texas rule was that damages for mental anguish could be recovered only if the plaintiff showed an intentional tort, gross negligence, willful and wanton disregard, or an accompanying physical injury. Farmers & Merchants State Bank v. Ferguson, 617 S.W.2d 918, 921 (Tex. 1981). The question is whether Sanchez changed that rule. Baptist Hospital of Southeast Texas, Inc. v. Baber, 672 S.W.2d 296, 298-99 (Tex.App. —Beaumont 1984, no writ) holds that Sanchez did change this rule, but the court of appeals in that decision supports its view only by pointing to the remarks in the Sanchez dissent expressing apprehension about language in the majority opinion which seemed to suggest “that any mental anguish, however slight, is compensable.” Sanchez, 651 S.W.2d at 258 (Pope, C.J., dissenting). However, the dissent acknowledges that the plaintiff in Sanchez satisfied the physical injury threshold. Id. Although the Sanchez opinion does use broad and expansive language in discussing recovery of mental anguish damages, we find nothing in either the holding or the rationale of that opinion which definitely indicates a change in the former rule requiring proof of an accompanying physical injury. Indeed, the plaintiff in Sanchez did suffer an accompanying physical injury, namely, frequent neck and shoulder pains and headaches. Sanchez, 651 S.W.2d at 253 (majority opinion). Moreover, Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115, 117-18 (Tex.1984) seems to retain the traditional limitations on recovery of mental anguish damages, although the opinion does not specifically mention the requirement of accompanying physical injury. We therefore decline to follow the court of appeal’s holding in Baptist Hospital. We hold instead that in a simple negligence case proof of accompanying physical injury is a necessary predicate to recover damages for mental anguish.

The Zondlers do not contend that Air Florida’s fault reached the level of intentional tort, gross negligence, or willful and wanton disregard. Consequently, we must decide whether the Zondlers proved the requisite physical injury. The best evidence of physical injury to Carolyn Zondler was that she “collapsed against the wall” upon hearing that her husband had probably died and that she had suffered severe depression and anxiety attacks. It is not clear, however, whether Carolyn Zondler’s “collapse” was, in fact, a physical collapse involving loss of consciousness or motor control or was simply a natural emotional reaction to the crushing news. Depression alone is a psychological, not physical, affliction. Although anxiety attacks often involve physical symptoms, such as the inability to breathe, there is no evidence that Carolyn Zondler suffered any such physical symptoms.

The evidence of the effects of William Zondler’s death on his two sons is even less suggestive of physical injury. This evidence, the testimony of a psychologist, only touches on the emotional and psychological problems the sons experienced on account of their father’s death. There is.nothing relating to physical symptoms at all.

We consequently find that, because the Zondlers produced no evidence at trial of accompanying physical injury, all the damage awards for mental anguish must be disallowed. Farmers & Merchants State Bank v. Ferguson, 617 S.W.2d at 921; Freedom Homes of Texas v. Dickinson, 598 S.W.2d 714, 717-18 (Tex.Civ.App. — Corpus Christi 1980, writ ref’d n.r.e.) (subjective mental symptoms and slight digestive disorders no evidence of physical injury).

We now address the Zondlers’ cross-points. First, the Zondlers insist that they should have been awarded pre-judgment interest on their damages. Texas does not allow pre-judgment interest in personal injury actions. Texas & N.O.R. Co. v. Carr, 91 Tex. 332, 43 S.W. 18 (1897); Piper Aircraft Corp. v. Yowell, 674 S.W.2d at 462-463 (wrongful death damages are too uncertain to warrant an award of pre-judgment interest); Hutton v. Burkett, 18 S.W.2d 740, 741 (Tex.Civ.App.— Eastland 1929, writ ref’d). Further, in State v. Weller, 666 S.W.2d 362, 363 (Tex. App. — Houston [14th Dist.] 1984, writ ref’d n.r.e.), the court held that Sanchez did not change this long-standing rule. We conclude that the most relevant authority is contrary to the Zondlers’ first cross-point; consequently, we overrule it.

The Zondlers also argue that the jury’s finding that William Zondler, Sr. suffered no pain or mental anguish before his death is against the great weight and preponderance of the evidence. The Zondlers’ evidence on this point comes mainly from a survivor of the plane crash. This survivor (an experienced airplane traveler) testified that when the plane took off, it shook so abnormally that he knew almost immediately that something was wrong. Other people, he said, were looking around after take-off. He did not say whether they seemed to be afraid or simply puzzled. This witness testified that he observed that the plane was not ascending after take-off. Since he knew the layout of the runway, he realized within ten seconds after take-off that the plane would crash. He therefore prepared himself for impact. He testified that he was conscious after the collision with the bridge, although he did black out when the plane subsequently hit the water. He reported in his testimony that there were people crying and moaning after the crash, but that these sounds stopped very quickly after the crash, when the plane sank.

This witness did not know William Zondler. He gave no testimony based on direct observation of Zondler showing Zondler’s probable knowledge of, reaction to, and condition after the crash. The Zondlers presented no evidence to show that William Zondler was in a position to see, as the witness was, that the airplane was about to crash. They did not show that William Zondler was sitting in a place in which it was likely that he would have survived and been conscious after the first impact. (Their witness was sitting at the back of the plane.) Finally, the Zondlers, in answers to two of Air Florida’s interrogatories, stated that they did not know whether William Zondler died instantaneously in the crash or whether he suffered conscious pain before his death.

In light of all this, we would be hard put even to say that there was some evidence to support a finding that William Zondler suffered conscious pain and mental anguish before his death. We clearly cannot say that the jury’s finding that he suffered none is against the great weight and preponderance of the evidence. We overrule the Zondlers’ second cross-point.

Accordingly, we reform the judgment of the trial court to eliminate the award for mental anguish of $300,000.00 to Carolyn Zondler and the awards for mental anguish of $50,000.00 each to William Zondler, Jr. and Patrick Zondler. As so reformed, we affirm the judgment.

Reformed and affirmed.

GUILLOT, J., dissenting.