Buie v. Longspaugh, 18234

• Decision Date: 17 April 1980
• Docket Number: No. 18234,18234
• Citation: 598 S.W.2d 673
• Parties: Clifford B. BUIE, Appellant, v. Gerald LONGSPAUGH d/b/a Mesa, Inc.; Thornton Construction Co., Inc.; and Bill Latham, Appellee.
• Court: Texas Court of Appeals

Page 673

598 S.W.2d 673

Clifford B. BUIE, Appellant, v. Gerald LONGSPAUGH d/b/a Mesa, Inc.; Thornton Construction Co., Inc.; and Bill Latham, Appellee.

No. 18234.

Court of Civil Appeals of Texas, Fort Worth.

April 17, 1980.

Rehearing Denied May 15, 1980.

Touchstone, Bernays, Johnston, Beall & Smith, and Ronald W. Johnson, Dallas, for appellant.

Leeper & Priddy, and Charles S. Leeper, Fort Worth, for appellee Longspaugh d/b/a Mesa, Inc.

John D. Griggs, Dallas, for appellee Thornton Const. Co., Inc.

Garrett & Burkett, and Robert D. Akers, Fort Worth, for appellee Bill Latham.

OPINION

SPURLOCK, Justice.

This is a vandalism case which involves construction of the parental liability provisions of Tex.Family Code Ann. §§ 33.01-.03 (1975). ^* The question presented is whether § 33.02 of the Code, which limits a parent's liability for damage caused by wilful and malicious conduct of their minor children to an amount not to exceed $5,000, limits a parent's liability for several malicious acts to a total of $5,000, or whether that liability is limited to $5,000 per act. The trial court rendered judgment against the parent in the amount of $5,000 for each of three acts totaling $15,000.

We affirm.

This appeal is prosecuted upon an agreed stipulation of facts including the amount of damages. From this stipulation it appears that Linda Buie is the daughter of Clifford and Betty Buie. Jeanine Stephens is the daughter of Marion Stephens. Both Linda and Jeanine are minors between 12 and 18 years of age. They unlawfully entered three houses on November 30, 1975, plugged drains in various sinks therein, and turned on water, resulting in flood damage to each house in the amount of $5,000 or more. Gerald Longspaugh d/b/a Mesa, Inc., Thornton Construction Company, Inc., and Bill Latham each own one of the houses.

The owners sued Linda, Clifford and Betty Buie, and Jeanine and Marion Stephens. The owners waived recovery of any damages in excess of $5,000. The trial court rendered judgment against Linda Buie, Jeanine Stephens, Clifford Buie, and Marion Stephens, jointly and severally, that each owner recover $5,000 plus interest. Judgment was also rendered against Clifford Buie and Marion Stephens, jointly and severally, that each owner recover attorney's fees. Thus the judgment totals $15,000 plus interest and attorney's fees.

Clifford Buie is the only defendant prosecuting an appeal. Therefore, the judgment against the other defendants not appealing is final. Buie appeals only that portion of the judgment relating to damages. Buie contends that the trial court erred in rendering judgment against him for $15,000 in that it incorrectly construed § 33.02 of the Code.

Sections 33.01 and .02 of the Code provide as follows:

"Section 33.01. Liability "A parent or other person who has the duty of control and reasonable discipline of a child is liable for any property damage proximately caused by:

"(1) the negligent conduct of the child if the conduct is reasonably attributable to the negligent failure of the parent or other person to exercise that duty; or

"(2) the wilful and malicious conduct of a child who is at least 12 years of age but under 18 years of age."

"33.02. Limits of Recovery

"Recovery for damage caused by wilful and malicious conduct is limited to actual damages, not to exceed $5,000, plus court costs and reasonable attorneys' fees."

Specifically Buie contends that the trial court erred in failing to limit the recovery of damages to a total of $5,000 because it erroneously concluded that § 33.02 of the Code only limits recovery to $5,000 per wilful and malicious act. Buie contends that § 33.02 should be construed as limiting recovery to $5,000 per episode of wilful and malicious conduct. He argues that the parental liability sections of the Code are penal in nature rather than compensatory and should be strictly construed.

It is well settled that the primary consideration of a reviewing court in construing a statute is to ascertain and enforce the legislature's intent in enacting the statute. 53 Tex.Jur.2d Statutes § 125 (1964). Thus we must determine the purpose of the parental liability provisions of the Code, and give effect to that purpose. Upon careful consideration we conclude that the purpose of these provisions is to protect and compensate property owners from the wilful and malicious destruction of their property by minors.

Prior to the enactment of the Texas Family Code, parental liability was governed by Article 5923-1 V.A.T.S. (1962) (Repealed). It provided as follows:

"Art. 5923-1. Malicious and wilful damage to or destruction of property Civil liability of parents

"Section 1. Any property owner, including any municipal corporation, county, school district, or other political subdivision of the State of Texas, or any department or agency of the State of Texas, or any person, partnership, corporation or association, or any religious organization whether incorporated or unincorporated, shall be entitled to recover damages in an amount not to exceed Three Hundred Dollars ($300) from the parents of any minor under the age of eighteen (18) years and over the age of ten (10), who maliciously and wilfully damages or destroys property, real, personal or mixed, belonging to such owner. However, this Act shall not apply to parents whose parental custody and control of such child has been removed by court order, decree, or judgment.

". . ."

"Sec. 3. The action authorized in this Act shall be in addition to all other actions which the owner is entitled to maintain and nothing in this Act shall preclude recovery in a greater amount from the minor or from any other person, including the parents, for damages to which such minor or other person would otherwise be liable, it being the purpose of this Act to authorize recovery from parents, and to limit the amount of the recovery, in situations where they would not otherwise be liable." (Emphasis ours).

Note that the purpose of this Article as stated in § 3 is to authorize recovery in a limited amount. Also instructive is § 4, the emergency clause of House Bill 45 which became Art. 5923-1. It provided as...