City of Gladewater v. Pike

• Decision Date: 01 April 1987
• Docket Number: No. C-5418,C-5418
• Citation: 727 S.W.2d 514
• Parties: The CITY OF GLADEWATER et al., Petitioners, v. Harold PIKE, Sr. et al., Respondents.
• Court: Texas Supreme Court

Page 514

727 S.W.2d 514

55 USLW 2571

The CITY OF GLADEWATER et al., Petitioners, v. Harold PIKE, Sr. et al., Respondents.

No. C-5418.

Supreme Court of Texas.

April 1, 1987.

Rehearing Denied May 6, 1987.

Earl Roberts, Jr., Roberts, Harbour Smith & Harris, Longview, for petitioners.

Frank L. Supercinski, Longview, for respondents.

ROBERTSON, Justice.

This case raises the question of whether the evidence supports the finding of proximate cause and whether the laws of this State allow exemplary damages to be recovered against a municipality.

The father and nine brothers and sisters of a deceased boy brought this action to recover for severe mental anguish, alleging negligence by the City in the misplacement of the body of the decedent. In answers to issues submitted, the jury found the City grossly negligent in failing to keep records, and that such negligence proximately caused the misplacement of the body. Thereafter, the jury awarded actual and exemplary damages to the father and one sister. The jury also found that no other body was in the grave, that the grave had not been desecrated and that the body had not been removed and lost from the original gravesite.

The court of appeals, at 708 S.W.2d 524, held that the evidence supported the jury findings of proximate cause. Secondly, the court of appeals approved the award of exemplary damages, saying that the Tort Claims Act prohibits such damages against a municipality only for governmental rather than proprietary functions. The court noted that there are no Texas cases which provide that the operation of a cemetery is a proprietary function but cited cases from other jurisdictions which had so held. The court held, however, that Texas law impliedly supports the recovery of exemplary damages against a municipal corporation under the proper circumstances and found that such circumstances existed under the facts, thus affirming the judgment of the trial court. We affirm the holding of the court of appeals that punitive damages may be recovered against a municipality but disagree that the Pikes are entitled to such damages under the present facts.

In 1944, the City of Gladewater purchased a tract of land, designating it for use as a cemetery which it named "Gladewater Memorial Park." The city council subsequently adopted rules and regulations for the care and use of the lots in this city-owned cemetery and designated it as a perpetual care cemetery under the Cemetery Act, ch. 148 § 1, 1945 Tex.Gen.Laws 194, [now TEX.REV.CIV.STAT.ANN. art 969c (Vernon 1963) ]. Under this statute, the city was given the duty to keep a "permanent and well bound" record book containing the identity and locations of lots and graves.

In 1952, Johnny Mack Pike, age 2, died and was buried in the Gladewater Memorial Park. His parents had purchased three adjacent plots, burying him in the middle, with the intention of later being laid to rest on either side of their son. No permanent marker revealing Johnny's final resting place was ever affixed on the grave. In 1976, Mrs. Pike died and the family sought to bury her in the space next to Johnny, but the City informed them that the plot was no longer vacant. Thus, Mrs. Pike was buried in another part of the cemetery after an exchange of deeds. In 1982, the Pike family decided to move both remains to another part of the cemetery so that they could be interred together. At the exhumation of Johnny's gravesite, nothing pertaining to the child could be found, no clothing, no casket and no body. Instead, an adult male body in a wooden casket was found in the grave. The forensic pathologist called by the City testified that it would be very unlikely that nothing would be found in the grave, particularly the metal parts of the coffin. In examining the records of the City, only the deed owners of the plots were noted, as the city manager had never recorded when a plot was filled, nor by whom.

Because the court of appeals upheld the decision of the trial court as to all issues, two questions exist that this court must decide: (1) Does the evidence elicited at trial support a finding of negligence against the City of Gladewater, and (2) Are exemplary damages recoverable against a municipality acting in its proprietary function?

I. Does the Evidence Support Negligence on the Part of the City?

Negligence requires the presence of three basic elements: duty on the part of one person to another; breach of that legal duty; and injury to the person to whom the duty is owed as a proximate result of the breach. Bell Helicopter Co. v. Bradshaw, 594 S.W.2d 519, 531 (Tex.Civ.App.--Corpus Christi 1979, writ ref'd n.r.e.). The City of Gladewater takes issue only with the jury's finding of proximate cause.

Proximate cause was described to the jury in this case as:

... that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred; and in order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that event, or some similar event, might reasonably result therefrom....

See Hart v. Van Zandt, 399 S.W.2d 791, 793 (Tex.1965); Young v. Massey, 128 Tex. 638, 101 S.W.2d 809, 810 (1937).

Thus, the two elements of proximate cause are cause-in-fact and foreseeability. Williams v. Steves Industries, Inc., 699 S.W.2d 570, 575 (Tex.1985); McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex.1980); Missouri Pac. R. Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex.1977). Cause in fact means that the omission or act involved was a substantial factor in bringing about the injury and without which no harm would have occurred. McClure, 608 S.W.2d at 903. Foreseeability requires that the actor, as a person of ordinary intelligence, would have anticipated the danger that his negligent act created for others. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 549-50 (Tex.1985). Foreseeability does not require that a person anticipate the precise manner in which injury will occur once a negligent situation that he has created exists. Southwest Forest Industries, Inc. v. Bauman, 659 S.W.2d 702, 704 (Tex.App.--El Paso 1983, writ ref'd n.r.e.). In applying these rules of law, however, we are dependent upon the facts of the case.

To begin with, it is clear under the facts that the injury here was foreseeable. The major reason to keep a record of burials is to ensure that it is known where bodies are interred. By failing to keep the records, it is obvious that the exact occurrence sought to be avoided herein has occurred, namely, that a body cannot be found. The City Manager and City Secretary, as reasonable people, should have anticipated the dangers that their lack of diligence threatened.

The City of Gladewater maintains that no evidence exists to support the jury finding of factual causation. In deciding a no evidence point, this court may consider only that evidence and the reasonable inferences therefrom which, when viewed in their most favorable light, support the jury's verdict, and reject all evidence to the contrary. Stanglin v. Keda Development Corp., 713 S.W.2d 94, 95 (Tex.1986). McKnight v. Hill & Hill Exterminators, Inc., 689 S.W.2d 206, 207 (Tex.1985); King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985).

In approaching this question, we are cognizant of our decision in McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901 (Tex.1980), where we held that "proximate cause may not be established by a mere guess or conjecture, but rather must be proved by evidence of probative force." McClure, 608 S.W.2d at 904. Like any other ultimate fact, however, proximate cause need not be supported by direct evidence, as circumstantial evidence and inferences therefrom are a sufficient basis for a finding of causation. Farley v. MM Cattle Co., 529 S.W.2d 751, 755 (Tex.1975). As in McClure, the issue here is whether there is any evidence from which reasonable minds could draw an inference that the negligence was a cause in fact of the injury. The Pikes are not required to distinguish all possible inferences, but must only show that the greater probability was that the lack of record keeping probably caused the injury. The relevant facts show that the Pike family entrusted the body of their loved one to the City, that the remains were placed in a grave, and that the gravesite cannot be located under the City records. The fact that the Pikes believed they knew where Johnny's remains lay should not be controlling. For example, had the Pikes forgotten precisely where the grave was, then sought the proper plot through City records, they would have been unable to find the gravesite. The fact that no traces whatsoever were uncovered, a situation which even the defense's expert witness said would be extremely unlikely, makes it probable that the wrong grave was uncovered, or at least the excavation was commenced at the wrong spot. How then are the Pikes to determine where the proper site is? Without City records showing which plots are empty or filled, it is impossible for them to do so. The dissent seizes on the fact that the Pikes never actually relied on the records in their search for the remains. Such a statement may very well be so, but any argument on that score is certainly answered by the equitable maxim that a court should not require the doing of a useless thing. Boman v. Gibbs, 443 S.W.2d 267, 272 (Tex.Civ.App.--Amarillo 1969, writ ref'd n.r.e.).

Proximate cause eventually mandates weighing of policy considerations. It is "a practical test, a test of common experience applied to human conduct." Cook Consultants, Inc. v. Larson, 700 S.W.2d 231, 236 (Tex.App.--Dallas 1985, writ ref'd n.r.e.). It is a result of endeavors by the courts to evade, when possible, the "metaphysical and philosophical niceties" in the time-worn discussion of causation. Springall v. Fredericksburg Hosp. & Clinic, 225 S.W.2d 232, 235 ...