Dawson v. Garcia

• Court: Texas Court of Appeals
• Writing for the Court: WHITHAM; SPARLING
• Citation: Dawson v. Garcia, 666 S.W.2d 254 (Tex. App. 1984)
• Decision Date: 17 January 1984
• Docket Number: No. 05-82-01170-CV,05-82-01170-CV
• Parties: Davey Joe DAWSON, Appellant, v. Louisa GARCIA, et al., Appellees.

Page 254

666 S.W.2d 254

Davey Joe DAWSON, Appellant, v. Louisa GARCIA, et al., Appellees.

No. 05-82-01170-CV.

Court of Appeals of Texas Dallas.

Jan. 17, 1984.

Rehearing Denied March 1, 1984.

Byron L. Falk, Newton J. Jones, Gerald R. Powell, Dallas, for appellant.

Dennis R. Croman, Irving, for appellees.

Before CARVER, SPARLING and WHITHAM, JJ.

WHITHAM, Justice.

Appellant, Davey Joe Dawson, appeals a judgment in favor of appellees, Louisa Garcia, individually, and as next friend of Alberto Garcia, a minor, and Isabel Garcia Carranza arising out of an intersectional automobile collision between vehicles driven by Dawson and Nick Garcia, the spouse and father of the Garcias. Judgments were also rendered in favor of Dawson and the passenger in his automobile, Jack Cook, against Louisa Garcia, as community administratrix of the estate of Nick Garcia; however, no appeal was perfected from those judgments. The principal issues involve (1) the right to recover any damages for bystander's mental anguish where the decedent's negligence exceeds that of the defendant; (2) the existence, or sufficiency, of evidence of contemporaneous perception of the accident; (3) abuse of discretion in awarding fees to a guardian ad litem resulting from trial court bias and prejudice against insurance companies; (4) the separate or community nature of recovery for medical expenses, lost earnings, and lost earning capacity if a spouse dies the day following the accident and (5) the right to recover pre-judgment interest on medical expenses in the absence of any pleading for interest. For the reasons that follow, we reverse and render. Bystander's Damages, The Evidence And The Jury Issues.

In Kaufman v. Miller, 414 S.W.2d 164, 168 (Tex.1967), the Supreme Court tells us that "[c]ourts have been virtually unanimous in recognizing that one who suffers injury from mental shock as a result of an injury or threatened injury to a third person cannot recover damages from the negligent tortfeasor." Perhaps recognizing dicta, Dawson ignores Kaufman's language and tells us in his brief that "[a]lthough Texas courts now recognize a cause of action for recovery of damages due to bystander's injury, such recovery is only permitted where the shock and mental suffering result from a direct emotional impact upon the Plaintiff from a contemporaneous perception of the accident, as distinguished from learning of the accident from others after its occurrence," citing Bedgood v. Madalin, 589 S.W.2d 797 (Tex.Civ.App.--Corpus Christi 1979), rev'd on other grounds, 600 S.W.2d 773 (Tex.1980); Covington v. Estate of Foster, 584 S.W.2d 726 (Tex.Civ.App.--Waco 1979, writ ref'd n.r.e.); Landreth v. Reed, 570 S.W.2d 486 (Tex.Civ.App.--Texarkana 1978, no writ). Although none of the cases cited are decisions of our Supreme Court, we take Dawson at his word and hold that "Texas courts now recognize a cause of action for recovery of damages due to bystander's injury." Such a cause of action for bystander's recovery in Texas appears to originate with Landreth v. Reed, 570 S.W.2d 486, 489 (Tex.Civ.App.--Texarkana 1978, no writ), adopting a test for foreseeability enunciated in Dillon v. Legg, 68 Cal.2d 728, 441 P.2d 912, 920, 69 Cal.Rptr. 72 (1968), as follows:

We note, first, that we deal here with a case in which plaintiff suffered a shock which resulted in physical injury and we confine our ruling to that case. In determining, in such a case, whether defendant should reasonably foresee the injury to plaintiff, or, in other terminology, whether defendant owes plaintiff a duty of due care, the courts will take into account such factors as the following: (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. [emphasis ours].

Nick Garcia's wife, Louisa Garcia, and his two children, Isabel Garcia Carranza and Alberto Garcia were passengers in the automobile driven by Nick Garcia. At some point after the accident occurred, Nick Garcia died. Immediately following the impact of the two vehicles, Isabel, a front seat occupant of the Garcia vehicle, fainted. Isabel did not hear her father or mother make any sounds at any time during the accident. She did not see her father after the accident and did not see him as he was placed in an ambulance and taken to the hospital. The next time Isabel saw her father was when he was removed from the ambulance and taken into the hospital. On that occasion she saw her father for only a few minutes, at which time he was unconscious and not making any sounds. Isabel could not recall observing her father in the Garcia car after the accident, nor did she observe any blood or visible injuries to her father when she saw him at the hospital. Isabel could not tell whether her father was in pain. At the time of the collision, Alberto was in the back seat of the Garcia automobile. Immediately following the impact, Alberto fainted and remained unconscious until he arrived at the hospital. He did not learn of his father's death until the day following the accident. Alberto did not observe his father in any manner at the accident scene, nor did he see his father in the ambulance or at the hospital. Alberto remembered nothing from the time of the collision until waking up at the hospital. Louisa Garcia, the wife, was seated in the front seat of the Garcia automobile when the collision occurred. She did not recall what happened at the point of collision since she was rendered unconscious for an indefinite period of time. At no time after the collision did Louisa observe any visible injuries to Nick, and she did not see Nick after he reached the hospital.

In his first four points, Dawson contends that the trial court erred (a) in awarding damages for mental pain and suffering as a consequence of witnessing the death of Nick Garcia because the comparative negligence finding against Mr. Garcia bars any such recovery; (b) in submitting bystander's damage issues to the jury, and rendering judgment thereon, because there was no evidence, or factually insufficient evidence, that any of the Garcias contemporaneously perceived the injury to, or death of, Mr. Garcia; (c) in failing properly to instruct the jury concerning the elements of damages it may consider in bystander injury cases; and (d) in submitting a single damage issue inquiring as to the Garcias' damages for their own injuries and for their bystanders' injuries because the submission improperly joined recoverable and non-recoverable elements of damage.

1. The comparative negligence: The Garcias sought recovery against Dawson only. The jury attributed seventy-five percent (75%) of the total negligence to Nick Garcia with the remaining twenty-five percent (25%) attributed to Dawson. The trial court rendered judgment on the verdict and awarded each of the Garcias the sum of $2,000.00 for his or her own personal injuries and as damages for mental suffering experienced from having witnessed Nick Garcia's death. Dawson argues that the entire award of damages in favor of the Garcias for mental pain and anguish as a consequence of witnessing the death of Nick Garcia is improper and not allowable as a matter of law. We agree. The question of whether a person is entitled to recover any damages for bystander's mental anguish where the decedent's negligence exceeds that of the defendant is one of first impression in this state. In deciding the question we find Dillon v. Legg, 68 Cal.2d 728, 441 P.2d 912, 69 Cal.Rptr. 72 (1968), instructive. Dillon has been cited with approval in Texas. Bedgood v. Madalin, 600 S.W.2d 773 (Tex.1980); Newman v. Minyard Food Stores, 601 S.W.2d 754 (Tex.Civ.App.--Dallas 1980, no writ); Covington v. Estate of Foster, 584 S.W.2d 726 (Tex.Civ.App.--Waco 1979, writ ref'd n.r.e.); Landreth, 570 S.W.2d at 489; Dave Snelling Lincoln Mercury v. Simon, 508 S.W.2d 923 (Tex.Civ.App.--Houston [1st Dist.] 1974, no writ).

In Dillon a mother asserted several actions, including one for emotional trauma she experienced from witnessing an auto-pedestrian accident in which her infant daughter (a pedestrian) was killed when struck by the defendant's vehicle. The mother sued both for wrongful death damages and for mental anguish she suffered as a bystander who witnessed the collision which killed her daughter. The vehicle driver interposed as defenses the contributory negligence of the mother, a sister who also saw the accident, and the deceased child. The trial court dismissed all causes of action for bystander's injury and the case was appealed to consider, inter alia, whether contributory negligence of the deceased would preclude the also-negligent defendant from liability to the bystander. The Supreme Court of California concluded that, in such a situation, the claims for bystanders' mental anguish would be barred. The court reasoned as follows:

We further note, at the outset, that defendant has interposed the defense that the contributory negligence of the ... [deceased] child contributed to the accident. If any such defense is sustained and defendant found not liable for the death of the child because of the contributory negligence of the ... [deceased] child, we do not believe that the mother or sister should recover for the emotional trauma which they allegedly suffered. In the absence of the primary liability of the tort-feasor for the death of the child, we see no ground for an independent and secondary liability for claims for injuries by third parties. The basis for such claims must be adjudicated liability and fault of defendant; that...