Yowell v. Piper Aircraft Corp.

• Decision Date: 22 January 1986
• Docket Number: No. C-3405,C-3405
• Citation: 703 S.W.2d 630
• Parties: Vicki Leigh YOWELL et al., Petitioners, v. PIPER AIRCRAFT CORPORATION et al., Respondents. *
• Court: Texas Supreme Court

Page 630

703 S.W.2d 630

54 USLW 2401

Vicki Leigh YOWELL et al., Petitioners, v. PIPER AIRCRAFT CORPORATION et al., Respondents. ^*

No. C-3405.

Supreme Court of Texas.

Jan. 22, 1986.

Estil Vance, Jr., Cantey, Hanger, Gooch, Munn & Collins, Allen Howeth, Robert Stahala, Garrett, Stahala & King, Steve M. King, David Horger, Jr., Fort Worth, Tom H. Davis, Mike Davis, Byrd, Davis & Eisenberg, James H. Furman, Byrd, Davis & Eisenberg, Austin, for petitioners.

Beale Dean, Brown, Herman, Scott, Dean & Miles, Fort Worth, B. Jeff Crane, Jane F. Warmack, Vinson & Elkins, Houston, for respondents.

Daniel R. Barrett, Law Offices of James P. Wagner, Fort Worth, for intervenor.

SPEARS, Justice.

This is a wrongful death and survival case. On February 22, 1977, Howard Reed Yowell, James Luther Ward, Jr., Jimmy Kenneth Fulkerson, and Fabe Ingram, Jr. were killed in a crash of a Piper PA-31-310 aircraft near Springdale, Arkansas. The airplane sustained a mid-air breakup at about 10,000 feet and crashed to the ground. There were no survivors.

Vicki Leigh Yowell, widow of Howard Reed Yowell and executrix of the estate of Howard Reed Yowell, brought this suit for the use and benefit of all persons entitled to recover for the wrongful death of Howard Reed Yowell. Dovie W. Ward, mother of the deceased and executrix of the estate of James Luther Ward, Jr., brought this suit for the use and benefit of all persons entitled to recover for the wrongful death of James Luther Ward, Jr. Nancy F. Fulkerson, widow and administratrix of the estate of Jimmy Kenneth Fulkerson, brought this suit for the use and benefit of all persons entitled to recover for the wrongful death of Jimmy Kenneth Fulkerson. Elizabeth Sue Ingram, widow and administratrix of the estate of Fabe Ingram, Jr., brought this suit for the use and benefit of all persons entitled to recover for the wrongful death of Fabe Ingram, Jr. (The decedents' wives, children, and parents were plaintiffs; for simplicity, all plaintiffs will be referred to as the Yowells.)

After a five-week trial, the jury found Piper liable for the decedents' deaths and awarded the Yowells over eight million dollars Piper did not appeal the jury's finding of liability. The issues presented on appeal involve: (1) damages and pleading requirements for loss of inheritance; (2) jurisdiction over the decedents' mental anguish claims, and the propriety of a trial amendment bringing such claims; (3) companionship, society, and affection damages; and (4) prejudgment interest.

                in damages.  The trial court rendered judgment for the Yowells.  The court of appeals reversed the judgment and remanded the cause for a new trial.  674 S.W.2d 447.   We reverse the judgment of the court of appeals and affirm the judgment of the trial court
                

LOSS OF INHERITANCE

This court has not specifically addressed loss of inheritance damages in prior wrongful death cases. In San Antonio A.P. Ry. Co. v. Long, 87 Tex. 148, 27 S.W. 113, 116 (1894), this court hinted that "under our statute the loss of prospective increase of inheritance may be an element of damages." In International-Great Northern R. Co. v. Acker, 128 S.W.2d 506, 525 (Tex.Civ.App.--Eastland 1939, writ dism'd judgmt. cor.) the court stated that "[i]t is also the recognized law in this state that in such cases a child, whether adult or minor, may recover for wrongful death of a parent, and that in estimating the damages the loss of prospective accumulations of the deceased parent may be taken into consideration in estimating the amount of recovery."

Clearly, heirs or devisees may suffer pecuniary loss to the extent the decedent would have accumulated property and passed it on to the heirs at his later, natural death. In Texas, the plaintiffs do not receive a double recovery when they receive loss of inheritance damages because the decedent's estate has no cause of action for lost future earnings. Tex.Rev.Civ.Stat.Ann. arts. 4671-4678 (Vernon 1952 and Supp.1985).

The Texas wrongful death statute gives a specified group of survivors a cause of action for losses they sustain as a result of their decedent's wrongful death. Tex.Rev.Civ.Stat.Ann. art. 4675 (Vernon 1952). Some states' statutes give the decedent's estate, rather than certain classes of survivors, a cause of action for loss of future accumulated property occasioned by wrongful death. See 1 S. Speiser, Recovery for Wrongful Death 2d §§ 3.1-3.2 (1975). Loss of inheritance under the Texas statute is very similar to "loss of the estate." Under a loss of inheritance claim, however, the claimant must prove not only the probability that the deceased would have accumulated money or assets, but also the probability that the decedent would have left this accumulation by will or inheritance to the statutory beneficiaries. Speiser, Recovery for Wrongful Death 2d § 3.39.

Substantial federal and state authority allows a beneficiary to recover for loss of inheritance caused by a decedent's wrongful death. Such damages are recoverable under the Federal Employer's Liability Act, as well as the Death on High Seas Act. Martin v. Atlantic Coast Line R. Co., 268 F.2d 397, 399 (5th Cir.1959) (Federal Employer's Liability Act); National Airlines, Inc. v. Stiles, 268 F.2d 400, 403-404 (5th Cir.1959) cert. den. 361 U.S. 885, 80 S.Ct. 157, 4 L.Ed.2d 121, reh. den. 361 U.S. 926, 80 S.Ct. 291, 4 L.Ed.2d 241, (Death on High Seas Act).

Many states allow loss of inheritance damages. Salinas v. Kahn, 2 Ariz.App. 181, 407 P.2d 120, 133-34 (1965) op. mod. on other grounds and reh. den. 2 Ariz.App. 348, 409 P.2d 64; Griffey v. Pacific Electric R. Co., 58 Cal.App. 509, 209 P. 45, 48 (1922); Denver & Rio Grande R. Co. v. Frederic, 57 Colo. 90, 140 P. 463, 466 (1914); Reynolds v. Willis, 8 Storey 368, 58 Del. 368, 209 A.2d 760, 762 (1965); Frazier v. Ewell Engineering & Contracting Co., 62 So.2d 51, 53 (Fla.1952); Denton v. Midwest Dairy Products Corp., 284 Ill.App. 279, 1 N.E.2d 807, 811 (1936); Keenan v. Brooklyn City R. Co., 145 N.Y. 348, 40 N.E. 15, 15 (1895); Nordlund v. Lewis & Clark R. Co., 141 Or. 83, 15 P.2d 980, 984 (1932); Burbidge v. Utah Light & Traction The relatively few courts which have denied this type of recovery have done so not by excluding the loss from pecuniary damages but by holding the amount of the loss too speculative. See Baker v. Slack, 319 Mich. 703, 30 N.W.2d 403, 407 (1948); McCleod v. Tri-State Milling Co., 71 S.D. 362, 24 N.W.2d 485, 491 (1946). See generally J. Stein, Damages and Recovery: Personal Injury and Death Actions § 243 (1972). Though probably nothing is more certain than the uncertainty of human life, presuming that thrifty persons will accumulate an estate and leave it to their heirs at death is no more speculative than finding any of the other recognized elements of pecuniary loss in a wrongful death action, such as lost support, guidance, and training. "Statutes giving damages for injuries resulting in death necessarily deal with probabilities," and necessarily indeterminate damages are properly left to the sound sense of the jury. San Antonia A.P. Ry. Co. v. Long, 87 Tex. 148, 27 S.W. 113, 117, 118 (1894).

Co., 57 Utah 566, 196 P. 556, 558-59 (1921); Tidmarsh v. Chicago, M & St.P. R. Co., 149 Wis. 590, 136 N.W. 337, 341 (1912).

Recovery for loss of inheritance is proper. Had the injured person survived, his recovery would include lost future earnings which presumably would increase the personal estate and, at death, pass to heirs or beneficiaries. Preventing the heir's recovery would protect the wrongdoer from the consequences of the wrong. See Long, 27 S.W. at 116.

We define loss of inheritance damages in Texas as the present value that the deceased, in reasonable probability, would have added to the estate and left at natural death to the statutory wrongful death beneficiaries but for the wrongful act causing the premature death. True, not every wrongful death beneficiary sustains loss of inheritance damages. If the decedent would have earned no more than he and his family would have used for support, or if the decedent would have outlived the wrongful death beneficiary, loss of inheritance damages would properly be denied. This is for the jury to decide.

Piper argues that the Yowells should not recover loss of inheritance damages because they failed to plead loss of inheritance. Piper contends that loss of inheritance is a special damage which must be specially pleaded. The Yowells did allege lost future earnings for each of the decedents, and alleged that the figures did not include loss of companionship, guidance, and service. The figures were supported by allegations of the decedents' life expectancy; work expectancy; yearly percentage increase in salary for the five years prior to the crash; salary, bonus, and fringe benefits at the time of the crash; an 11% of salary and bonus pension package; and the salary, bonus, and fringe benefits the people who took over the decedents' jobs received five years after the crash. The Yowells further pleaded their ages and the decedents' ages, and asserted that they brought the suit for the "use and benefit of all persons entitled to recover for the wrongful death" of the decedents. Piper does not argue that loss of support must be specially pleaded or that the words "loss of pecuniary benefit" must be used. Moreover, Piper did not specially except to this aspect of the Yowells' pleadings.

While the better pleading practice uses phrases such as loss of inheritance and loss of support, these phrases were not required in this case. As the court of appeals acknowledged, the Yowells allegations essentially ask for compensation for their fair share of lost earnings. Thus, the pleadings give fair notice that the Yowells seek lost pecuniary benefits. See Stoner v. Thompson, 578 S.W.2d 679, 683 (Tex.1979). Because lost inheritance is a lost pecuniary benefit, we find that the Yowells have pleaded loss of inheritance damages sufficiently to...