Davenport v. Phillip Morris, Inc., C14-87-918-CV
| Decision Date | 27 October 1988 |
| Docket Number | No. C14-87-918-CV,C14-87-918-CV |
| Citation | 761 S.W.2d 70 |
| Parties | Prod.Liab.Rep. (CCH) P 12,016 Mrs. Charles A. DAVENPORT, Jr., et al., Appellants, v. PHILLIP MORRIS, INCORPORATED, et al., Appellees. (14th Dist.) |
| Court | Texas Court of Appeals |
Grant Kaiser, Houston, for appellants.
Lawrence L. Germer, Beaumont, Daniel O. Goforth, Houston, Gail C. Jenkins, Hubert Oxford, III, Beaumont, G.R. Poehner, Lea F. Courington, David P. Stone, Dallas, Marie R. Yeates, Houston, for appellees.
Before JUNELL, SEARS and CANNON, JJ.
Appellants appeal from the granting of appellees' motion for summary judgment. In one point of error appellants claim the trial court erred in granting appellees' motion because their original petition was filed within the time period specified by the applicable statute of limitations. We affirm.
On June 9, 1986 appellants, the surviving wife and children of Charles A. Davenport, filed suit against appellees, six cigarette manufacturers, four cigarette distributors, a scientific organization, and a tobacco industry group, alleging that Mr. Davenport died of emphysema and cardiovascular problems caused by his smoking cigarettes manufactured and/or marketed by each of the appellees. Appellants asserted claims under both the Texas Survival Statute and Wrongful Death Statute.
All parties have stipulated that in 1977, nine years before his death, Mr. Davenport was advised and believed that his emphysema and cardiovascular problems were the result of his cigarette smoking. Mr. Davenport died of those diseases in 1986.
Appellants abandoned their survival cause of action in the trial court. Appellee Brown and Williamson Tobacco Corporation moved for summary judgment against appellants urging that any remaining wrongful death claims were barred because the decedent's claim for his own injuries would have been barred by limitations at the time of his death. All appellees joined in Brown and Williamson's motion and amended their pleadings asserting the affirmative defense of a limitations bar. On September 17, 1987, the trial court granted appellees' motion for summary judgment, holding that the running of the statute of limitations on Mr. Davenport's cause of action prevented appellants from asserting a wrongful death cause of action.
In one point of error appellants claim the trial court improperly granted the motion for summary judgment because their wrongful death cause of action was timely filed. Appellants assert that the statute of limitations for wrongful death claims is prescribed by section 16.003 of the Texas Civil Practice and Remedies Code Annotated (Vernon 1986), which states in part:
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.
Appellants assert that since their cause of action was brought within two years of Mr. Davenport's death, it is not barred by limitations.
The applicable limitations period for Mr. Davenport's cause of action was two years. TEX.CIV.PRAC. & REM.CODE ANN. § 16.003(a) (Vernon 1986). Therefore, Mr. Davenport's cause of action against the tobacco companies for his injuries was barred by limitations at the time of his death.
A cause of action under the Texas Wrongful Death Act is, by its nature, a derivative action. Leal v. C.C. Pitts Sand and Gravel, 419 S.W.2d 820, 821 (Tex.1967). Section 71.003 of the Texas Civil Practice and Remedies Code Annotated (Vernon 1986) provides that the code provisions which create the wrongful death cause of action apply "only if the individual injured would have been entitled to bring an action for the injury if he had lived." A wrongful death action cannot be maintained successfully when the decedent has no cause of action if he survived the injuries. Schwing v. Bluebonnet Express, Inc., 489 S.W.2d 279, 281 (Tex.1973). Therefore, the controlling issue is whether the alleged tortfeasors, appellees in this case, would have been liable to the decedent had he lived and brought the instant suit.
Because of the derivative nature of a wrongful death cause of action, several defenses to a decedent's cause of action for his own injuries have been held to be available to a defendant in a subsequent action for wrongful death. See ...
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