Gulf States Utilities Co. v. Reed

659 S.W.2d 849, 1983 Tex. App. LEXIS 4864
CourtCourt of Appeals of Texas
DecidedAugust 4, 1983
DocketA14-82-813CV
StatusPublished
Cited by54 cases

This text of 659 S.W.2d 849 (Gulf States Utilities Co. v. Reed) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gulf States Utilities Co. v. Reed, 659 S.W.2d 849, 1983 Tex. App. LEXIS 4864 (Tex. Ct. App. 1983).

Opinions

ELLIS, Justice.

Appeal is taken from a judgment awarding damages to appellee, Paula Reed, based on a jury verdict and denial of appellants’ motion for judgment N.O.V. We affirm in part, and reverse and render in part.

Appellee, Paula Reed, mother of the deceased minor, Vernon Lee Johnson Jr., brought suit under the Wrongful Death Act, TEX.REV.CIV.STAT.ANN. art. 4671 (Vernon Supp. 1982-83) and the Survival Statute, TEX.REV.CIV.STAT.ANN. art. 5525 (Vernon 1958). The father, Vernon Lee Johnson, Sr., intervened in the suit. Defendant-appellants, Gulf States Utilities Company and Southwestern Bell Telephone Co., entered into a stipulation and waiver of proof of their negligence, but reserved the right to contest damages. The incident giving rise to the suit was the death of appel-lee’s son, Vernon Lee Johnson, Jr., age 13, who was electrocuted when he crawled under a metal building to retrieve a Frisbee. The building was electrified because a live wire owned by Gulf States Utilities was lying on it. The wire was attached to a Southwestern Bell utility pole, which had been damaged, causing the wire to sag onto the building. At the time of her son’s accident, appellee was visiting her husband in another town, approximately twenty-five minutes away. Appellee’s husband told her of the boy’s death, at which time Mrs. Reed rushed to the hospital, where she saw her son lying on a table under a sheet.

The jury awarded damages of $20,000 for future contributions Vernon Johnson, Jr. in reasonable probability would have made to his mother after he reached the age of eighteen, and $10,000 for the conscious physical pain and mental anguish he suffered as a result of the occurrence. The jury also awarded appellee $500,000 for the loss of the society of her son and $500,000 for her mental anguish. Additionally, it awarded her past and future medical expenses of $45,000, and past lost earnings of $15,000, resulting from the incident.

In points of error one through twelve, appellants assert the trial court erred in allowing pleadings, proof, submission and recovery of damages for appellee’s personal injuries, because she was not in the zone of danger at the time of the accident. Appellants contend the damage awards, which include appellee’s mental anguish, past and future medical and hospital expenses, lost earnings, and loss of earning capacity, are not recoverable as a matter of law.

Further, in points of error thirteen through twenty-one, appellants argue that the trial court erred in permitting pleadings, evidence, and submission of damage issues for loss of society, as this award is not recoverable by a parent for the death of a child under the wrongful death statute. Although the Texas Wrongful Death Act does not expressly limit recovery to pecuniary loss, i.e. the pecuniary value of the child’s services and financial contributions, less the cost of his care, support, and education, the courts of this state have so limited the statute since the supreme court’s holding in March v. Walker, 48 Tex. 372, 375 (1877). In March, the supreme court held that because the Texas Wrongful Death Act was patterned after Lord Campbell’s Act, an English law which restricted a recovery to pecuniary loss, damages under the Texas statute would also be measured by pecuniary loss.

As recently as 1980, the supreme court left undisturbed the pecuniary loss rule. In Bedgood v. Madalin, 600 S.W.2d 773 (Tex.1980), respondents sought recovery for mental anguish sustained as a result of the [852]*852death of their son. While the court expressed no opinion as to the merits of respondents’ claim because it was not properly preserved, it did note that the Texas Wrongful Death Act was limited by the pecuniary loss rule, and stated that “[n]o recovery may be had for mental anguish, grief, bereavement, or loss of companionship.” Id. at 775. However, in a concurring opinion, Justice Spears stated that, while respondent had not properly preserved the issue, a plaintiff’s recovery should not be limited to pecuniary loss. Justice Spears stated that, in future wrongful death actions, he would allow recovery for loss of companionship, society, affection and comfort. In addition, he would allow recovery for “mental anguish suffered as a result of a child’s wrongful death.” Id. at 779.

In the recent case of Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983), the supreme court was again asked to determine whether Texas should continue to follow the pecuniary loss rule in measuring damages for the death of a child. In Sanchez, the court chose to abandon this long-standing rule, and allowed plaintiff, Mrs. Sanchez, to recover $102,500 in damages for the mental anguish suffered from the death of her son.

Mr. and Mrs. Sanchez were at home in Corpus Christi when their son was injured in Key Allegro, Texas, and they were told of the accident by a neighbor. While they were not allowed to see their son, they were able to see his bloody legs through the doorway. The court, in rejecting the pecuniary loss rule, stated:

This court has recognized previously that injuries to the familial relationship are significant injuries and are worthy of compensation. In Whittlesey v. Miller, 572 S.W.2d 665, 668 (Tex.1978), we held that either spouse has a cause of action for loss of consortium suffered as a result of an injury to the other spouse by a tortfeasor’s negligence. We held that loss of affection, solace, comfort, companionship, society, assistance, and sexual relations were real, direct and personal losses and said that these losses were not too intangible or conjectural to be measured in pecuniary terms. Id. at 667. A.parent’s claim for damages for the loss of companionship of a child is closely analogous to the loss of consortium, cause of action created in Whittlesey. In Selders v. Armentrout [190 Neb. 275], 207 N.W.2d 686, 689 (Neb.1973), the Nebraska Supreme Court noted this analogy with loss of consortium and said, “There is no logical reason for treating an injury to the family relationship resulting from the wrongful death of a child more restrictively.” Id. 651 S.W.2d at 252.

It further stated that:

A parent’s recovery under the wrongful death statute includes the mental anguish suffered as a result of the child’s wrongful death. The destruction of the parent-child relationship results in mental anguish, and it would be unrealistic to separate injury to the familial relationship from emotional injury. Wilson v. Lund, 80 Wash.2d 91, 491 P.2d 1287, 1292 (Wash.1971) (en banc.). Injuries resulting from mental anguish may actually be less nebulous than pain and suffering, or injuries resulting from loss of companionship and consortium. A plaintiff should be permitted to prove the damages resulting from a tortfeasor’s negligent infliction of emotional trauma. Leong v. Takasaki, 55 Hawaii 398, 520 P.2d 758, 767 (Hawaii 1974). This includes recovery for mental anguish. Id. 651 S.W.2d at 253.

Mrs.

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Bluebook (online)
659 S.W.2d 849, 1983 Tex. App. LEXIS 4864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gulf-states-utilities-co-v-reed-texapp-1983.