Moore v. Lillebo

ON MOTION FOR REHEARING

SPEARS, Justice,

dissenting.

The dissenting opinion of July 9, 1986 is withdrawn and the following is substituted.

I dissent for two reasons. First, we should retain the physical manifestation requirement for mental anguish recovery. Second, irrespective of the physical manifestation requirement, the record contains no evidence — of any kind — as to the emotional effect of Paul Moore’s death on his parents. And I can find no other jurisdiction that allows recovery for both mental anguish and loss of society and companionship without either a physical manifestation or a bystander’s requirement.

Trial was before Sanchez v. Schindler, when only the pecuniary value of the decedent’s services were recoverable in a wrongful death action. The testimony, therefore, consists of Paul Moore’s work contributions to his family. I agree with the majority that this evidence raises a fact issue as to damages for loss of society and companionship; past family interaction is some evidence of future losses of affection, comfort, and assistance. 1 Speiser, Recovery for Wrongful Death § 3:50, at 322 (2nd ed. 1975).

The majority also holds that this same evidence — by itself and without proof of *689 physical manifestation — is some evidence of mental anguish. I cannot agree.

When Paul Moore died in July 1977, he was 21 years old. Paul’s mother had not seen her son for six years, except for one two-week period in 1975. She had not communicated with Paul in two years. Paul’s father had not seen his son for over two years prior to his death. His father’s only communication with his son in those two years was two letters and one telephone call. Paul’s parents were not providing him with any financial support at the time of his death.

Neither parent testified as to their relationship with Paul, or their feelings towards him during his lifetime or after his death. They did not testify as to the effect that Paul’s death had on them. There is no evidence that they mourned or experienced unhappiness or sorrow at Paul’s death. The majority, referring to the court of appeals opinion, does not dispute that “there was no testimony concerning ... what effect the loss of a child had on their lives.”

Regardless of the physical manifestation requirement, there is no evidence of mental anguish of any kind in this case. The record lacks this evidence because the case was tried before Sanchez v. Schindler, when the pecuniary loss rule barred non-pecuniary damages. Moore’s parents made no attempt to introduce evidence of mental anguish and made no offer of proof. By failing to make an offer of proof, the Moores have waived error. Tex.R.Civ.P. 372; Gulf Paving Co. v. Lofstedt, 188 S.W.2d 155, 159 (Tex.1945). See Tex.R. Evid. 103(a)(2).

I also dissent because it is essential that we keep the physical manifestation requirement for mental anguish recovery. The majority acknowledges the Texas rule: the plaintiff cannot recover damages for emotional injuries without physical manifestations, unless the plaintiff proves an intentional tort, gross negligence, or willful disregard. Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115, 117 (Tex.1984); Farmers and Merchants State Bank of Krum v. Ferguson, 617 S.W.2d 918, 921 (Tex.1981); Duncan v. Luke Johnson Ford, Inc., 603 S.W.2d 777, 779 (Tex.1980); Brown v. American Transfer and Storage Co., 601 S.W.2d 931, 939 (Tex.1980). Justice Campbell stated the rule in Duncan v. Luke Johnson Ford, Inc., 603 S.W.2d at 779 :

Damages cannot be recovered for mental anguish alone. Harned v. E-Z Finance Company, 151 Tex. 641 , 254 S.W.2d 81 (1953). In the present case there is no proof of a willful tort, gross negligence, Yvillful disregard, or mental anguish causing physical damage. There is no evidence to support the award of damages for mental anguish. Duty v. General Finance Company et al., 154 Tex. 16 , 273 S.W.2d 64 (1954). (Emphasis added.)

The majority adds wrongful death cases as another exception to the physical manifestation requirement, contending that the familial relationship alone provides adequate protection against fraud; however, the majority fails to recognize that the physical manifestation requirement serves three important and related purposes besides preventing fraud. First, the requirement assures that the emotional injury reaches a compensable level. Mere sorrow, anger, worry, or fear have not been and should not be compensable. See Ryder Truck Rentals, Inc. v. Latham, 593 S.W.2d 334, 339 (Tex.Civ.App.—El Paso 1979, writ ref’d n.r.e.); Dennis Weaver Chevrolet, Inc. v. Chadwick, 575 S.W.2d 619, 622 (Tex.Civ.App.—Beaumont 1978, writ ref’d n.r.e.); Prosser, The Law of Torts 328-330 (4th ed. 1971); Stein, Damages and Recovery: Personal Injury and Death Actions 50 (1972). Our society has neither the financial nor judicial resources to allow recovery for ordinary grief and sorrow. With a physical manifestation requirement, at least the emotional injury must be severe enough to manifest itself in objective physical symptoms.

Second, the physical manifestation requirement serves to define mental anguish as severe emotional distress. By abandoning both the physical manifestation require *690 ment and the bystander’s requirement, 1 the majority’s standard for mental anguish is so weak as to be meaningless.

Third, and most importantly, the requirement serves to separate mental anguish from loss of society and companionship. Without the requirement, loss of society and companionship damages and mental anguish damages overlap, resulting in a double recovery.

The majority provides no public policy reasons or changes in social conditions that justify abandoning the long-standing physical manifestation requirement. In contrast, in Sanchez v. Schindler we explained that we were abolishing the pecuniary loss rule because children were no longer economic assets and the pecuniary loss rule prevented parents from recovering for their real injury — their emotional losses. 651 S.W.2d 249, 251-52 (Tex.1983). Furthermore, whereas abolishing the pecuniary loss rule in Sanchez v. Schindler brought Texas in line with the majority of jurisdictions, abolishing the physical manifestation requirement put us in the minority-

In Sanchez v. Schindler, 651 S.W.2d at 252-53 , this court authorized recovery under the Texas Wrongful Death Act for mental anguish and expressed approval of allowing recovery for loss of society and companionship. Loss of society and companionship damages compensate for the death’s injury to family relationships. Id. Family members lose the deceased’s emotional contributions: affection, comfort, assistance, and companionship. Their injury is essentially emotional. See Gulf States Utilities Co. v. Reed, 659 S.W.2d 849, 856 (Tex.App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.) (Brown, C.J., dissenting); Wilson v. Lund, 80 Wash.2d 91 , 491 P.2d 1287, 1292 (1971). Family members should ordinarily recover their emotional damages under loss of society and companionship.

Mental anguish is a heightened emotional injury beyond ordinary grief. Its derivation suggests intensity: anguish is “derived from the Latin word ‘anguis’, a snake, referring to the writhing and twisting of the animal body when in great pain.” Freedom Homes of Texas, Inc. v. Dickinson, 598 S.W.2d 714, 718 (Tex.Civ.App.—Corpus Christi 1980, writ ref’d n.r.e.); Dennis Weaver Chevrolet, Inc. v. Chadwick, 575 S.W.2d 619, 622 (Tex.Civ.App.—Beaumont 1978, writ ref'd n.r.e.). In Sanchez v. Schindler, we held that “a plaintiff should be permitted to prove the damages resulting from a tortfeasor’s negligent infliction of emotional trauma_ Mrs. Sanchez proved she is suffering from traumatic depressive neurosis.” (Emphasis added) 651 S.W.2d at 253 . Mental anguish damages are for emotional trauma:

The damages recoverable, however, should be for actual mental injuries rather than mere fear, anger, or sorrow. In most instances the normal grief reaction will result in little or no actual mental injury, and the damages suffered will be minimal or nonexistent. When the emotional trauma results in depression or other secondary reactions, however, the plaintiff should recover for the damages incurred.

Bedgood v. Madalin, 600 S.W.2d 773, 779 (Tex.1980) (Spears, J., concurring).

Without the physical manifestation requirement, loss of society and companionship damages and mental anguish damages overlap. Loss of society and companionship damages compensate family members for their emotional injury from losing the deceased’s society and companionship. The family member’s mental anguish, however, stems largely from the same cause: losing the deceased’s society and companionship. Therefore, without a physical manifestation requirement, mental anguish damages encompass the same interest from the same cause at the same level of severity as loss of society and companionship damages. Such an overlap is a classic double recovery.

The physical manifestation requirement prevents the overlap of mental anguish and loss of society and companionship dam *691 ages. With the physical manifestation requirement, the family recovers for its familial loss under loss of society and companionship, but only for heightened emotional trauma under mental anguish.

Sanchez v. Schindler did not present a question of double recovery because the plaintiff there requested only a mental anguish issue. Only three months after Sanchez, however, the court of appeals addressed the problem in Gulf States Utility Co. v. Reed, 659 S.W.2d 849 (Tex.App.—Houston [14th Dist.] 1983, writ ref d n.r.e.). The majority held that each damage element was sufficiently distinct to avoid double recovery. Id. at 854 . The dissent argued that submitting both loss of society and companionship and mental anguish damages would “invite, if not compel, a double recovery.” Id. at 856 (Brown, C.J., dissenting). Referring to Chief Justice Brown’s dissent, the court of appeals in this case denied a mental anguish issue stating:

The Supreme Court of Texas did not accept this analysis and obviously agreed that these are separate elements which may be submitted separately. If they are separate elements, they must require separate proof. Otherwise a double recovery is permitted as Chief Justice Brown concluded.

674 S.W.2d at 477. Today the majority allows the same proof of family relationship to support these two closely related damage categories, thus permitting a double recovery. The majority even instructs the jury to consider the identical five factors for both loss of society and companionship and mental anguish.

Moreover, under the majority opinion every wrongful death claimant — regardless of the facts in a particular case — will be guaranteed submission of both issues. This guarantee is axiomatic: only immediate family members may bring wrongful death actions, Tex.Civ.Prac. & Rem.Code Ann. § 71.004 (Vernon 1986), and family membership per se requires submission of both issues.

Allowing every claimant both submissions ignores reality. Not all family members have relationships. Nonetheless, claimants can submit both issues without proof of a close (or even any) relationship to the deceased. No matter how little the evidence of their emotional distress, the following claimants may now submit both issues: parents who have abandoned their children; spouses who have lived apart for years; and children who have never lived with a parent.

The majority’s standard strips the trial court of meaningful review of the jury verdict. Because family relationship per se is some evidence for both issues, the trial court cannot grant motions for summary judgment, motions for an instructed verdict, or motions notwithstanding the jury’s verdict. With the high cost of litigation and the inflammatory nature of wrongful death cases, the majority’s standard gives undeserving cases significant settlement value.

Not only is every plaintiff entitled to both issues, but the majority’s suggested definition for mental anguish is inapt. Recovery for mental anguish should be unusual, but the majority’s suggested definition makes it the norm. Mental anguish will now be recovered as a matter of course, since a “plaintiff would, in reasonable probability, experience [some “emotional pain”] from the death of the family member.”

Despite the proposed instruction’s attempt to separate mental anguish and loss of society and companionship, the jury’s awards will include different amounts for shades of the same interest. This is analogous to the tale of the six blind men who felt and then tried to describe an elephant. One felt the trunk, one the tusk, one the tail, another a leg, one the ear, and another the side. Each had a different description of the elephant, but they all were describing the same animal. Similarly, the majority’s instruction allows different awards for the same injury.

Proper definitions are needed because loss of society and companionship damages *692 and mental anguish damages are closely related and only finely distinguished categories of emotional harm damages. 2 With improper definitions, such as the majority’s, mental anguish and loss of society and companionship issues ask jurors the same question: how much emotional distress has the plaintiff suffered? Asked the same question twice, jurors will give the same answer — twice.

We can justify separate submissions for mental anguish and loss of society and companionship only by preserving their distinction. Unfortunately, the majority destroys any such distinction. I would affirm the judgment of the court of appeals.

GONZALEZ, J., joins in this dissent.

. Sanchez v. Schindler, 651 S.W.2d 249 , 254 n. 6 (Tex.1983).

. The jury charge should appropriately define mentid anguish and loss of society:

Mental anguish: an intense emotional injury, resulting in depression or other physical reactions. Exclude ordinary grief and sorrow.

Loss of society and companionship: the injury to the familial relationship from the loss of the deceased's affection, comfort, assistance, and companionship.

The charge should also clearly instruct the jury not to include damages for mental anguish in loss of society and companionship, and vice versa.