Air Florida, Inc. v. Zondler

• Decision Date: 04 December 1984
• Docket Number: No. 05-83-01261-CV,05-83-01261-CV
• Citation: 683 S.W.2d 769
• Parties: AIR FLORIDA, INC., Appellant, v. Carolyn ZONDLER, William Zondler, Jr. and Patrick Zondler, Appellees.
• Court: Texas Court of Appeals

Page 769

683 S.W.2d 769

AIR FLORIDA, INC., Appellant, v. Carolyn ZONDLER, William Zondler, Jr. and Patrick Zondler, Appellees.

No. 05-83-01261-CV.

Court of Appeals of Texas,

Dallas.

Dec. 4, 1984.

Rehearing Denied Jan. 11, 1985.

Robert A. Gwinn, Charles L. Perry, Johnson, Bromberg & Leeds, Dallas, Tex., Desmond T. Barry, Jr., Condon & Forsyth, New York City, for appellant.

Randall R. Moore, John Howie, Law Offices of Windle Turley, P.C., Dallas, Tex., for appellees.

Before ALLEN, GUILLOT and STEWART, JJ.

ALLEN, Justice.

Air Florida, Inc. has filed a limited appeal challenging the portion of the trial court's judgment which awarded non-pecuniary damages to Carolyn, William, Jr., and Patrick Zondler for the wrongful death of William Zondler, Sr. Air Florida contends that non-pecuniary damages can only be awarded for the wrongful death of minor children, that the award of damages for both mental anguish and loss of society amounted to a double recovery, and that there was no evidence to support the damage award for mental anguish because there was no evidence that any of the Zondlers suffered any physical injury accompanying their mental anguish. We reject Air Florida's first two contentions but agree that there was not the requisite proof of physical injury to support an award of damages for mental anguish to any of the Zondlers. In addition, we reject the Zondlers' cross-points that the trial court erred in failing to award prejudgment interest and that the jury's finding that William Zondler, Sr. suffered no pain or mental anguish before his death was against the great weight and preponderance of the evidence. Consequently, we reform the judgment to eliminate the damage awards for mental anguish and affirm as reformed.

William Zondler, Sr. was killed in the widely-publicized crash of an Air Florida jetliner in Washington, D.C. The jet crashed through a bridge and into the Potomac River. Air Florida admitted liability by stipulation, and the parties tried the case solely on the issue of damages. The trial court's judgment awarded Carolyn Zondler, William Zondler, Sr.'s wife $1,500,000.00 for pecuniary loss, $500,000.00 for loss of consortium, and $300,000.00 for mental anguish. It awarded William Zondler, Jr. and Patrick Zondler, the deceased's sons, $20,000.00 each for pecuniary loss, $50,000.00 each for loss of companionship and society, and $50,000.00 each for mental anguish.

Air Florida challenges the judgment first on the basis of its position that awards of non-pecuniary damages in wrongful death cases are limited to the situation in which deceased is a minor child. Air Florida grounds its argument chiefly on two premises: (1) the general rule in Texas has always been that non-pecuniary damages are not recoverable in wrongful death actions and (2) the precise holding in Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983), that a parent can recover non-pecuniary damages for the wrongful death of a minor child, is limited to its facts. Hence, Air Florida argues, although Sanchez created an exception to the general rule against nonpecuniary recovery, that exception is applicable only in the case of a minor child's wrongful death. Air Florida buttresses its position by noting that the majority in Sanchez declined to adopt the broad language of Justice Ray's concurring opinion, which urged the court to hold explicitly that any family member could recover non-pecuniary damages. In addition, Air Florida argues that there is a special rationale for allowing non-pecuniary recovery only in the case of a minor child, namely, that minor children in modern society produce, for the most part, no pecuniary value for their parents and that continued application of the old rule to cases in which a child is killed would almost universally exclude recovery by the bereaved parents. This, Air Florida says, is a particular injustice which the Sanchez court found necessary to correct. Air Florida insists that Sanchez addressed no other or broader injustice than this effective denial of recovery in all wrongful death cases in which a minor child was the family member killed.

After close examination of the Sanchez opinion, we cannot accept Air Florida's analysis of the supreme court's decision. When we look at the cases the supreme court overruled in footnote 2 of its opinion, Sanchez, 651 S.W.2d at 251, we conclude that the supreme court in Sanchez rejected completely the rule that there can be no recovery of non-pecuniary damages in wrongful death cases. The supreme court in footnote 2 overruled a number of cases in which the deceased was not a minor child. In those cases, the court could only have been overruling the language enunciating the former rule that non-pecuniary damages are not recoverable. For example, the supreme court overruled March v. Walker, 48 Tex. 372 (1877), the oldest case and progenitor of the pecuniary loss rule in Texas. See Sanchez, 651 S.W.2d at 252. In March v. Walker, the guardian and next friend of the decedent's minor children had brought the wrongful death action. March v. Walker, 48 Tex. at 373. Footnote 2 singles out page 375 of the March v. Walker opinion as the page containing the portion of that decision which the Sanchez court meant to overrule. The relevant language in March v. Walker, 48 Tex. at 375, is as follows:

The language of the [wrongful death] statute "damages proportioned to the injury resulting from such death," is the same as ... the English statute, and it is well settled, that the damages given by such statutes are measured by the pecuniary injury to the respective parties entitled, including the loss of prospective advantage. The measure of damages is not the same as when a party himself sued for injuries received, and recovers compensation for physical and mental suffering.

Thus, the Sanchez court in footnote 2 overruled none other than the original pronouncement limiting recovery in wrongful death actions to the pecuniary loss.

Clearly, the rationale behind the Sanchez holding completely rejects the notion that wrongful death recovery must be limited to pecuniary loss. We disagree with Air Florida's contention that a special rationale concerning minor children animated the Sanchez decision. The universal denial of recovery to bereaved parents of minor children would not be harsh and unjust if non-pecuniary losses were not real losses which demand compensation. See Sanchez, 651 S.W.2d at 252 (non-pecuniary losses are "significant injuries ... worthy of compensation"), citing Whittlesey v. Miller, 572 S.W.2d 665, 668 (Tex.1978) (loss of consortium is compensable damage). Denying recovery for these real losses to adult children who have lost a parent, to parents who have lost adult children, or to husbands and wives who have lost their spouses would be equally harsh and unjust, especially in those cases in which for some reason the adult wrongfully killed would not have provided pecuniary benefits. See Sanchez, 651 S.W.2d at 252 ("[a] parent's claim for damages for the loss of companionship of a child is closely analogous to the loss of consortium action created in Whittlesey " ). Finally, the majority opinion's failure to adopt the broad language of Justice Ray's concurrence signifies little. It is wise jurisprudence for a court to confine its holding to the facts actually before it, whatever logical implications the rationale for its holding might have. Indeed, a Texas court has no power to determine questions not essential to the decision of the controversy before it. Firemen's Insurance Co. of Newark, New Jersey v. Burch, 442 S.W.2d 331, 333 (Tex.1968); McKenzie v. McKenzie, 667 S.W.2d 568, 570 (Tex.App.--Dallas 1984, no writ); Davis v. Dairyland County Mutual Insurance Co. of Texas, 582 S.W.2d 591, 593 (Tex.Civ.App.--Dallas 1979, writ ref'd n.r.e.).

A majority of the Texas Court of Appeals decisions which have faced the question before us agree with our conclusion that non-pecuniary losses are recoverable even when the decedent is not a minor child. Missouri Pacific Railroad Co. v. Dawson, 662 S.W.2d 740, 741-42 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.) granted non-pecuniary damages to a widow for the wrongful death of her husband and stated that either spouse could recover loss of consortium damages in a wrongful death action. The same Corpus Christi Court of Appeals, in Lavender v. Hofer, 658 S.W.2d 812, 817 (Tex.App.--Corpus Christi 1983), aff'd in part, rev'd in part, all on other grounds, 679 S.W.2d 470 (1984), approved an award to parents of non-pecuniary damages for the death of a child who, according to the Texas Supreme Court opinion, was eighteen years old. 679 S.W.2d at 471. The El Paso Court of Appeals, in Moore v. Lillebo, 674 S.W.2d 474, 476 (Tex.App.--El Paso 1984, no writ), allowed an award of non-pecuniary damages for the death of an adult child, as did Houston's First Supreme Judicial District Court of Appeals in City of Houston v. Stoddard, 675 S.W.2d 280, 285 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.). There is only one case, from the Fort Worth Court of Appeals, which holds that, under Sanchez, non-pecuniary recovery is limited to cases in which the decedent is a minor child. Piper Aircraft Corp. & United Fire Insurance Co. v. Yowell, 674 S.W.2d 447, 461-62 (Tex.App.--Fort Worth 1984, no writ). In any event, for the reasons already stated, we cannot accept the Fort Worth court's interpretation of Sanchez.

We hold that recovery of non-pecuniary damages in wrongful death actions is allowable for plaintiffs other than the parents of a minor child wrongfully killed. In particular, the spouse and adult children of a person wrongfully killed may recover such damages.

The next question is the nature of the non-pecuniary damages that are recoverable. Air Florida says that the non-pecuniary damage which a death in the family brings, even if called "loss of companionship and society," really amounts to nothing more than...