Russell v. Ingersoll-Rand Co.

DOGGETT, Justice,

concurring and dissenting

Henceforth any action for the death of a loved one can be barred before it accrues; a family’s rights can be terminated before they can be exercised. That is the objective of another injustice committed by a majority that is not slowed in the slightest either by a statute that has been on the books since 1860 or its own recent writing to the contrary. Today a family is told that they should have filed an action for damages from the death of their husband and father five years before he died. Prophets and palm readers would have done them more good than an attorney.

The enactment at issue here is terse, clear and unqualified:

A person must bring suit not later than two years after the day the cause of action accrues in an action for injury resulting in death. The cause of action accrues on the death of the injured person.

Tex.Civ.Prac. & Rem.Code § 16.003(b). If this statute means what it says, the family of a dead worker may have the merits of its claims considered by a jury of twelve Texans. To deny them that right, the majority must declare the applicable statute inapplicable, revising the law to provide that a death action must be brought not two years after death, as section 16.003(b) so clearly provides, but two years after injury.

The harm caused by this judicial stratagem will extend to not a few Texas families. In the real world, carcinogens and other toxic substances often produce a death that is creeping rather than one that neatly fits within the constraints of a two-year deadline. Millions of people suffer the demise of which Edna St. Vincent Millay so poignantly wrote in another context:

And so beneath the weight lay I

And suffered death, but could not die. 1

Today’s decision provides an abrupt answer to the families of those who linger — the parties responsible for such deaths will never be held accountable in any Texas court. Because the imposition of an impossible condition on the rights of families of those who do not die quickly is not sup *353 ported by statute and is directly counter to recent precedent of this court, I dissent. 2

The facts here are simple. Donnon Russell died on January 28, 1988 from silicosis, a lung disease alleged to have developed as a result of his exposure to certain products during his 19 years as a sandblaster. On March 4, 1988, his widow and children filed suit under the Texas Wrongful Death Act. This action having been filed thirty-six days after Russell’s death, it was without question timely filed according to the specific words of section 16.003(b).

The majority nonetheless concludes that Petitioners’ wrongful death action is time-barred. To do so, it looks not to the statute of limitations which has been specifically applicable to death actions for more than a century. 3 Instead, the majority turns to a totally different statute and expands the limitations provision for personal injury to include death actions. Hence, Petitioners are now told they should have filed suit for death two years after Russell discovered he suffered from silicosis — i. e., five years before Russell died.

This court only recently stated that the statute of limitations applicable to death actions was designed to avoid this precise result:

In DeHarn [ ... 86 Tex. 68 , 23 S.W. 381 (1893) ], this court interpreted the accrual language in Tex.Rev.Civ.Stat. art. 3202 (1879), which was the statutory predecessor to section 16.003(b). The opinion describes the reason for Article 3202 as follows:

Since no action could be brought by the relatives of the injured person until death had ensued, and since a great deal of time might elapse between the injury and the death, it was reasonable that the time of death should be taken as the point from which limitation should begin to run.

DeHarn, 23 S.W. at 381-82 . [Petitioner] construes this single passage as evidencing a legislative purpose to extend the beginning of the running of the statute beyond the date of death. But Article 3202 was meant solely to prevent the potential anomaly of limitations running before death.

Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 352 (Tex.1990) (emphasis supplied). Both DeHam 4 and Moreno made clear that limitations runs from the date of death and not the date of injury. In Moreno , the court went so far as to label section 16.-003(b) an “absolute” statute of limitations, 787 S.W.2d at 354 , meaning one “free from conditional limitation; ... free from qualification.” Webster’s New International Dictionary 6 (3d ed. 1966).

*354 The majority glibly sidesteps this precedent, the reasoning of which was required to block the Morenos’ suit but never intended to justify recovery by any other family. The limitations statute is now made “absolute for defendants only” by reference to that part of the death act limiting the grounds upon which suit may be predicated. Tex.Civ.Prac. & Rem.Code § 71.003(a). This provision originated as part of the first Wrongful Death Act passed in Texas in 1860, which provided:

[Whensoever the death of any person may be caused by wrongful act, neglect, unskillfulness or default, and the act, neglect, unskillfulness or default is such as would (if death had not ensued) have entitled the party, injured, to maintain an action for such injury, then and in every such case the person who would have been liable if death had not ensued, shall be liable to an action for damages....

Law of Feb. 2, 1860, ch. 35, 1860 Tex.Gen. Laws 32, 4 H. Gammel, Laws of Texas 1934 (1898) (emphasis supplied). It was revised by the Legislature in 1879:

The wrongful act, negligence, carelessness and unskillfulness or default mentioned in the preceding article must be of such character as would, if death had not ensued, have entitled the party injured to maintain an action for such injury.

Tex.Rev.Civ.Stat. art. 2900 (1879) (emphasis added). While the death act was amended many times in the ensuing years, 5 this provision, although renumbered, remained unchanged until 1985. At that time it was included as part of the new Civil Practice and Remedies Code, 6 “without substantive change.” Tex.Civ.Prac. & Rem.Code § 1.001(a); Act of June 16, 1985, 69th Leg., R.S., ch. 959, § 10, 1985 Tex. Gen. Laws 3242 , 3322 (“This Act is intended as a recodification only, and no substantive change is intended by the Act.”).

This provision, based on its clear wording at the time of its initial adoption, limited death actions to those cases in which the character of the injurious act permitted suit for injury under existing law. Not all wrongful conduct was actionable at the time the death act was first passed and revised. For example, the “fellow servant” rule barred suit in many jurisdictions and, thus, fatal injury inflicted by a co-worker would not give rise to a death action against the employer. Price v. Houston Direct Navigation Co., 46 Tex. 535, 537-38 (1877); see also DeHam v. Mexican Nat’l Ry. Co., 86 Tex. 68, 70 , 23 S.W. 381, 382 (1893). Contributory negligence on the part of the person injured also at one time barred suit in Texas. McDonald v. International & Great N. Ry., 86 Tex. 1, 12-13 , 22 S.W. 939, 944 (1893). Additionally, no cause of action was recognized for prenatal injuries to a child subsequently born alive, Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347, 360 , 78 S.W.2d 944, 950 (1935), nor for injuries to a woman whose husband's negligence was a contributing factor. Dallas Ry. & Terminal Co. v. High, 129 Tex. 219, 222 , 103 S.W.2d 735, 736 (1937). All of these bars to recovery have been removed by statute or judicial decision; and, almost without exception, 7 *355 these cases involved situations in which the character of the wrongful act barred suit. Here there is no question that the character of the alleged wrongful act would give rise to a cause of action for Russell’s injuries under existing law. The majority nonetheless interprets section 71.003(a) as requiring that death actions be subject to all defenses which might have been urged against the personal injury action at Dhe time of the death.

The majority dwells on the allegedly “consistent interpretation” of of this irrelevant provision because this court has never previously had need to construe the unequivocal wording of the applicable statute, section 16.003. No justification has or can be provided as to how the interpretation of one provision dictates an- unconscionable reading that deliberately misconstrues another. 8

In adopting the Wrongful Death Act, the Legislature crafted a unique limitations statute. The time for filing suit is not determined by the date of the wrongful conduct or the date of injury — rather limitations begins to run at death without regard to when the injury occurred. This court has, until today, accepted the statute as written. See DeHam, 23 S.W. at 381-82 (although “a great deal of time might elapse between the injury and death ... death [is] the point from which limitation should begin to run”).

A federal court, grappling with this same problem, refused to bar a death claim under the Federal Tort Claims Act even though the statute of limitations on the underlying injury action had expired. A holding to the contrary, the appeals court concluded, would promote inequity and supplant lawyers with fortunetellers:

To hold that a claim for wrongful death somehow accrues before the date of death would place the class protected by the statute in the legally untenable position of speculating about hypothetical or potential future injuries, for the damages awarded survivors under the wrongful death act, which include funeral and burial expenses, are not identical with those available in a personal injury action to the one actually injured, and remain indeterminate until death has occurred. Clearly no such claim would ever be jus-ticiable even were an astucious plaintiff to lodge such a clairvoyant complaint, for courts simply cannot protect rights against “assumed potential invasions” ... until they are presented with an actual case or controversy.

Fisk v. United States, 657 F.2d 167, 171 (7th Cir.1981) (citations omitted). 9

There is a split of authority in other jurisdictions as to whether death actions are barred when the statute of limitations has passed as to the underlying personal injury claim. See Adams v. Armstrong World Indus., Inc., 596 F.Supp. 1407, 1414, *356 1415 (D.Idaho 1984) (listing cases), appealed sub. nom. Waters v. Armstrong World Indus., Inc., 778 F.2d 248 (9th Cir.1985) (certifying question to Idaho Supreme Court), aff'd in part, rev’d in part 790 F.2d 893 (9th Cir.1986) (mem.) (decision after certified question refused). The decisions, though, are dependent upon the wording of the applicable state death act provision. See Annot., 167 A.L.R. 894 , 895-96 (1947) (“The problem here is manifestly one of statutory construction.”). The Restatement concludes that, in most states, a death action is not barred by the passage of limitations as to the decedent’s personal injury claim:

Under most wrongful death statutes, the cause of action is a new and independent one, accruing to the representative or to surviving relatives of the decedent only upon his death; and since the cause of action does not come into existence until the death, it is not barred by prior lapse of time, even though the decedent’s own cause of action for the injuries resulting in death would be barred.

Restatement (Second) of Torts § 899 comment c, at 442 (1965). See also William L. Prosser, Prosser and Keeton on the Law of Torts § 127 at 957 (W. Page Keeton, ed. 5th ed. 1984) (“[T]he considerable majority of the courts have held that the statute [of limitations] runs against the death action only from the date of death, even though at that time the decedent’s own action would have been barred while he was living.”). 10

Several preeminent commentators in the field of tort law would draw a distinction between defenses that go to the merits or existence of a cause of action, and procedural objections such as limitations. 11 An expert on the Texas Wrongful Death Act, Dean Leon Green, 12 urged differing treatment of these two classes of defenses:

[T]his interposition of the personal injury defenses is maintainable as to contributory negligence, assumption of the risk, fellow servant rule and other defenses which constitute a limitation on a cause of action. But it is not maintainable as to ... statute of limitations and such other defenses as expressly recognize that the deceased did have a cause of action which he either has, or could have, successfully maintained. The statute does not say that he must have had a cause of action at the moment of his death.... These defenses give implicit recognition to the injured person’s cause of action and they should operate against it alone. Their force is fully spent before the death action arises.

Leon Green, The Texas Death Act, 26 Tex. L.Rev. 461, 461, 463 (1948). 13 Similarly, reviewing death acts nationwide, Dean Prosser concluded:

It is not at all clear, however, that such provisions of the death acts ever were intended to prevent recovery where the deceased .once had a cause of action, but it has terminated before his death. The more reasonable interpretation would seem to be that they are directed at the necessity of some original tort on the part of the defendant, under circumstances giving rise to liability in the first instance, rather than to subsequent changes in the situation affecting only the interest of the decedent.

W. Prosser, The Law of Torts § 127 at 911 (4th ed. 1971). These views comport with the express language of the Texas statute.

*357 Moreover, the distinction between substantive and procedural defenses better fits within the bounds of statutory construction. First, this distinction properly recognizes the “object sought to be obtained” in enacting wrongful death legislation. Tex. Gov’t Code § 311.023(1). The purpose of the death act was recently identified by the court as “ ‘providing] a remedy for injuries resulting in death.’ ” Moreno, 787 S.W.2d at 356 n. 8 (quoting Leon Green, The Texas Death Act, 26 Tex.L.Rev. 133, 136 (1947)). The majority’s interpretation today is inconsistent with this objective, as it deprives Petitioners of a remedy for Russell’s death. Second, our previous decisions advise that the “wrongful death statute is remedial in nature and must be liberally con-strued_” Witty v. American General Capital Distributors, Inc., 727 S.W.2d 503, 504 (Tex.1987). In construing section 71.-003(a), the remedial purpose of the statute is thwarted in cases of lingering illness followed by death. Third, “a just and reasonable result is intended.” Tex. Gov’t Code § 311.021(3). It is both unreasonable and unjust to conclude that a wrongful death suit is barred before the date on which the action accrues. Fourth, the construction imposed by the majority creates a conflict between section 71.003(a) and section 16.003(b). It must be remembered that these provisions were enacted as a part of the original wrongful death act and were intended to be construed together. 14 Law of Feb. 2, 1860, ch. 35, 1860 Tex.Gen. Laws 32, 4 H. Gammel, Laws of Texas 1934 (1898). A specific statutory provision is ordinarily controlling over a more general one. Hence, the explicit provision as to limitations should preclude the implication of a more restrictive time period for filing suit by interpreting a more general provision. Fifth, differentiating between substantive and procedural defenses is consistent with the nature of a wrongful death action. A majority of this court concluded in Moreno that no action for death existed at common law, 15 and the death statute created a new cause of action. 787 S.W.2d at 356 . The recovery permitted is not for the injury to the deceased, but for harm inflicted upon the survivors by destruction of the “familial relationship.” See Sanchez v. Schindler, 651 S.W.2d 249, 251 (Tex.1983). Different damages may be recovered in each; statutory beneficiaries may recover their own pecuniary losses, mental anguish and loss of companionship and society suffered as a result of the death, as well as funeral expenses. These damages are not recoverable in a personal injury action filed by the deceased. A death action is thus separate and distinct from the injury action and should be made subject to its own separate and distinct statute of limitations. This court, consistent with rules of construction discussed above, and the better-reasoned cases from other jurisdictions, could and should interpret our state death act to allow Petitioners’ suit. 16

The majority today forms a triptych of tragedy denying to bereaved families compensation for their loss. First those suffering from the death of a family member are instructed to file suit within two years after death, even if the cause of death cannot with diligence be discovered in that time *358 period. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348 (Tex.1990). Next they are told that, if medical malpractice causes merely injury, the denial of full compensation rises to the level of a constitutional violation, but if the medical error is fatal, damages can be limited to whatever the legislature might permit. Rose v. Doctors Hosp., 801 S.W.2d 841 (Tex.1990). These grief-stricken relatives are now burdened with the impossible task of filing an action for wrongful death before death has occurred. This continued deprivation of the rights of bereaved families is inconsistent with the purpose and language of the wrongful death statute!

The action for wrongful death, created by the Texas Legislature, has been taken away from the families of those who linger in death. The majority has mandated that death be swift, or reckoning for wrongful conduct will not be made in the Texas courts. Families, after the slow and often painful illness and death of a loved one, are left with nothing:

The Bustle in a House

The Morning after Death

Is solemnest of industries

Enacted upon Earth—

The Sweeping up the Heart

And putting Love away

We shall not want to use again

Until Eternity. 17

MAUZY, J., joins in this concurring and dissenting opinion.

. Edna St. Vincent Millay, Renascence, in Collected Poems 3, 7 (N. Millay ed. 1956).

. I concur in that part of the judgment upholding the dismissal of Petitioners’ survival action as barred by the statute of limitations. Prior to the adoption of the survival statute, any cause of action accrued or pending was automatically extinguished by death. The purpose of the legislation was to permit an estate to continue to prosecute the decedent’s claim. It is thus subject to all defenses that would defeat the decedent’s recovery, including limitations. Cf. Tex. Civ.Prac. & Rem.Code § 16.062 (tolling limitations for specified time period after death). As discussed below, however, the wrongful death statute gave rise to a new and independent claim allowing recovery of damages not recoverable in a personal injury action.

. Tex.Civ.Prac. & Rem.Code § 16.003(b) provides:

A person must bring suit not later than two years after the day the cause of action accrues in an action for injury resulting in death. The cause of action accrues on the death of the injured person.

An action for wrongful death has been tied to the date of death since the passage in 1860 of the first death act in Texas and has survived in virtually identical form to this date. See Moreno v. Sterling Drug, Inc., 787 S.W.2d 348 , 359 n. 4 (Tex.1990) (Doggett, J., dissenting)(tracing history of statute of limitations applicable to death actions).

.This case is cited as DeHam v. Mexican Nat'l Ry. Co. in the Southwestern Reporter, but as DeHarn v. Mexican Nat'l Ry. Co. in the official Texas Reports. Although normally controlling, the latter source is incorrect. The original opinion, at the Lorenzo de Zavala Archives in Austin, is handwritten by Justice Gaines. The penmanship is at times difficult to interpret, and the separation of the first loop from the second and third in the letter "m” in the Petitioner’s name was understandably transcribed by the reporter as “r n.” A review of the full record of that decision leaves no doubt that the bereaved mother’s name was Elizabeth DeHam and not DeHarn.

. These amendments were largely necessitated by decisions of this court narrowly interpreting the death act despite legislative intent to the contrary. See generally Leon Green, The Texas Death Act, 26 Tex.L.Rev. 133 (1947).

. Despite the statement of the legislature that the codification was made "without substantive change,” the language of section 71.003(a) differs in many respects from its predecessor. The statute now reads:

This subchapter applies only if the individual injured would have been entitled to bring an action for the injury if he had lived.

Tex.Civ.Prac. & Rem.Code § 71.003(a).

.In Thompson v. Fort Worth & Rio Grande Ry. Co., 97 Tex. 590 , 80 S.W. 990 (1904), the court held that the deceased’s execution of a release for his injuries barred a subsequent wrongful death action. This case was decided prior to recognition of a survival suit in Texas and was grounded expressly on the premise that the "right of action given to the injured person does not, in the event of his death, survive under our statutes, but an action by the dependent relatives named is substituted for that which was lost by death.” 97 Tex. at 594 ; 80 S.W. at 992 . The court in essence treated the death action as if it were a survival claim, and applied the "one recovery” rule. As discussed below, damages recoverable in a death action are now recog *355 nized by this court as differing from those in an injury action. Similar considerations apply to the court’s decision in Sullivan-Sanford Lumber Co. v. Watson, 106 Tex. 4 , 155 S.W. 179 (1913), in which a family was denied recovery because of the release of liability contained in the pass permitting the deceased to ride on a private carrier.

. The majority relies on Francis v. Herrin Transp. Co. 432 S.W.2d 710, 713 (Tex.1968), as vaguely supportive of today’s statutory cross-pollination. That case, however, considered whether an action could be brought in Texas when the death and injury had occurred in Louisiana, and the limitations provision for death actions expressly contained in that state's statutes would bar suit. This court was not presented with the question of whether limitations applicable to injury actions could preclude a subsequent wrongful death suit.

. Accord Western Union Tel Co. v. Preston, 254 F. 229, 234 (3rd Cir.1918) (applying Pennsylvania law), cert. denied, 248 U.S. 585 , 39 S.Ct. 182 , 63 L.Ed. 433 (1919); Larcher v. Wanless, 18 Cal.3d 646 , 135 Cal.Rptr. 75, 81, 82 , 557 P.2d 507, 513, 514 (1976); N.O. Nelson Mfg. Corp. v. Dickson, 114 Ind.App. 668 , 53 N.E.2d 640, 641 (1944); Farmers Bank & Trust Co. v. Rice, 674 S.W.2d 510, 512 (Ky.1984); Smith v. McComb Infirmary Ass’n, 196 So.2d 91, 93 (Miss.1967); Gramlich v. Travelers Ins. Co., 640 S.W.2d 180, 186 (Mo.Ct.App.1982); DeHart v. Ohio Fuel Gas Co., 84 Ohio App. 62 , 85 N.E.2d 586, 590 (1948); Brosse v. Cumming, 20 Ohio App.3d 260 , 485 N.E.2d 803, 807 (1984); see also James v. Phoenix General Hosp., Inc., 154 Ariz. 594, 603 , 744 P.2d 695, 704 (1989); Carroll v. W.R. Grace & Co., 252 Mont. 485 , 830 P.2d 1253 (1992); Gilloon v. Humana, Inc., 100 Nev. 518 , 687 P.2d 80 (1984); Hoover's Administratrix v. Chesapeake & *356 Ohio Railway Co., 46 W.Va. 268 , 33 S.E. 224 (1899).

. Taking the contrary view, that "probably the more prevalent” authority would bar such an action, the majority fails to compare the statutory language construed in the cited cases with that of the Texas Death Act. 841 S.W.2d at 350 n. 14.

. In Texas, limitations is viewed as a procedural as opposed to a substantive condition restricting the right to bring an action for death. Franco v. Allstate Ins. Co., 505 S.W.2d 789, 792-93 (Tex.1974).

. Dean Green’s extensive two-part analysis of the Texas Death Act was recently relied upon by the court in Moreno v. Sterling Drug, Inc., 787 S.W.2d 348 , 356 n. 8 (1990).

. One purpose of Dean Green’s article was to urge reversal of decisions of this court barring suit by the statutory beneficiaries of a woman whose husband’s negligence contributed to the injuries resulting in her death. This recommendation was adopted, although belatedly. See Schwing v. Bluebonnet Express, 489 S.W.2d 279, 281 (Tex.1973).

.The majority suggests that the two provisions do not pose a conflict under the circumstances of this case because the Petitioners’ wrongful death action never accrued since Russell’s personal injury action was barred by limitations at the time of his death. 841 S.W.2d at 348. Yet this analysis fails to resolve what would have happened if the defendants had not pleaded limitations. In essence, limitations are used in this case to bar substantive rights, contrary to our prior writings. City of Dallas v. Etheridge, 253 S.W.2d 640, 643 (Tex.1953) ("[Statutes of limitations do not affect the substantive rights of parties; they merely bar the remedy by which one party seeks to enforce his substantive rights.”).

. There undoubtedly is a common law action for death which the majority's continued irrational refusal to recognize is antithetical to Texas families. See Moreno, 787 S.W.2d at 358, 364, 367 (Doggett, J., dissenting) (majority's opinion on this subject "can rightly be recorded as one of the most anti-family decisions in recent memory.”).

. Instead, to avoid ”thwart[ing] the very purpose of limitations," 841 S.W.2d at 349, both the rather plain language of the limitations provision is overridden and these many principles of statutory construction ignored.

. Emily Dickinson, The Bustle in the House, The Complete Poems of Emily Dickinson (T.H. Johnson 1960).