recognizing that “a system which would force litigants to determine precisely when each element of a plaintiff’s damage award was in- curred would impose an onerous burden on both the trial bench and bar”
How later courts described this case
- recognizing that “a system which would force litigants to determine precisely when each element of a plaintiff’s damage award was in- curred would impose an onerous burden on both the trial bench and bar”
- recognizing that "damages" under Act include mental-anguish damages and holding that mental-anguish damages are recoverable by all family members listed in Act
- crafting common-law rule that prejudgment interest cannot be awarded on punitive damages, in view that such interest went beyond indemnifying plaintiff for defendant’s withholding of damages before judgment
- disagreeing with the majority’s decision to compound interest daily and asserting that prejudgment interest should be computed the same as postjudgment interest under article 5069-1.05
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 41 Tex. Sup. Ct. J. 268 (1998)
696 S.W.2d 549, 552 (Tex. 1985), abrogated by Johnson & Higgins, 962 S.W.2d 507
Superseded by statute, as recognized in C & H NATIONWIDE, INC. v. Thompson
v. Quality Control Parking, Inc., 696 S.W.2d 549, 554 (Tex. 1985), superseded by statute as stated in C & H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 324–28 (Tex. 1994) and abrogated
The opinion
ON MOTION FOR REHEARING
KILGARLIN, Justice,
dissenting.
I respectfully dissent from two aspects of the court’s decision as to prejudgment interest in wrongful death causes of action. First, having concluded to allow prejudgment interest in wrongful death cases, no good policy reason or legal basis exists for delaying the commencement date of interest to six months following the occurrence giving rise to the wrongful death cause, but allowing it to run from the date of death in survival causes of action. Second, to allow prejudgment interest on only some damages resulting from a wrongful death is a retreat from well established Texas precedent.
If a right to recover prejudgment interest exists at all, “the measure of recovery is fixed by the conditions existing at the time that the injury is inflicted.” Smith v. National Resort Communities, Inc., 585 S.W.2d 655, 660 (Tex.1979). While adequate policy reasons may exist for delaying the commencement of prejudgment interest *557 for personal injuries not resulting in death, no good policy reason exists for differentiating between survival and wrongful death causes of action. If anything, the recipients of wrongful death damages sustain their greatest loss at the time of death, whereas medical expenses, lost wages, physical pain and mental anguish resulting from a non-death injury are often spread over the duration of the injury. Common sense tells us that the pain, agony, and suffering growing out of the loss of a loved one is greatest at the time of death, and diminishes with the passing of time. Loss of financial support by the dead loved one, loss of care, comfort and guidance, all start at the time of death rather than waiting six months for their inception. If a six month delay is an arbitrary, but acceptable, compromise for the commencing of prejudgment interest in other personal injury cases, it is at least supported by the knowledge that medical expenses and lost wages frequently occur for periods commencing sometime after the date of injury and it would be an onerous burden on the trial court to try to render prejudgment interest from the date that each item of expense accrued. This justification for compromise, however, does not exist in wrongful death suits.
Secondly, I dissent from the holding of the court which abandons the concept that in wrongful death causes of action, all damages are fixed and determinable as of the time of death. Accordingly, no distinction should be made in respect to interest on wrongful death damages existing before trial and those accruing after trial. As was said in Richardson v. Holmes, 525 S.W.2d 293, 299 (Tex.Civ.App. —Beaumont 1975, writ ref’d n.r.e.), “[t]he cause of action of wrongful death and the recoverable damages are established at the time of death. Dobbs, Remedies § 8.6 at 568 (1973); 87 A.L.R.2d 252 (1968).” Indeed, this concept of the fixing of damages at the time of death has prevailed at least since this court gave clear expresssion to the proposition that evidence of remarriage was inadmissible in a wrongful death ease. Gulf C. & S.F. Ry. Co. v. Younger, 90 Tex. 387 , 38 S.W. 1121 (1897). Even though Tex.Rev.Civ.Stat.Ann. art. 4675a has, since 1973, made the fact of remarriage admissible in a wrongful death action, it did not change the rule that all wrongful death damages are established as of the date of death. See Exxon Corp. v. Brecheen, 519 S.W.2d 170 (Tex.Civ.App.—Houston [1st Dist.]), rev’d on other grounds, 526 S.W.2d 519 (Tex.1975).
Without prejudgment interest, a gross disparity will exist between the recovery of a plaintiff who receives trial and judgment the day after injury and the recovery of a plaintiff who must wait several years until receiving judgment. Carlton v. H. C. Price Co., 640 F.2d 573 (5th Cir.1981). Full compensation for the plaintiffs injuries, however, is but one of the widely accepted rationales for allowing prejudgment interest. Promotion of settlement and prevention of unjust enrichment are also important functions of this type of award.
The defendant has had full investment use of all of plaintiffs money prior to a final judgment — not just the money plaintiff recoups up until judgment date. Consequently, the defendant has earned interest that the plaintiff would have earned had the award been paid immediately upon death. Requiring the defendant to surrender the interest as well as the judgment amount does not punish the defendant; it merely requires the defendant to make the plaintiff whole by surrendering the award and the interest which the plaintiff could have earned had the award been paid at the time of death.
Texas courts ... realize that the right to interest is a marketplace concept and that the use of the money is a mercantile privilege which should not go uncompen-sated_ [The defendant] cannot be heard to say that it is fair and equitable that it should enjoy such a financial advantage for so long, and pay not a cent for it.
Phillips Petroleum Co. v. Adams, 513 F.2d 355, 370 (5th Cir.), cert. denied, 423 U.S. 930 , 96 S.Ct. 281 , 46 L.Ed.2d 259 (1975). Prejudgment interest prevents the *558 defendant from profiting from delays in proceeding to trial. If a defendant will only be liable for prejudgment interest on part of an award, then it would still be to the defendant’s advantage to delay judgment to obtain interest from those sums on which the court will not award prejudgment interest. Thus, full compensation of an injured party, prevention of delay and unjust enrichment and encouragement of settlement all support a recovery of prejudgment interest on the full award of damages in wrongful death cases.
Because I feel that prejudgment interest should be awarded on all except exemplary damages from the date of the incident giving rise to both wrongful death and survival cases, I dissent from this part of the court’s opinion.
RAY and ROBERTSON, JJ., join in this dissenting opinion.