Gilmore v. Sci Texas Funeral Services, Inc.

• Decision Date: 15 August 2007
• Docket Number: No. 10-06-00209-CV.,10-06-00209-CV.
• Citation: 234 S.W.3d 251
• Parties: Jane GILMORE, Clayton Ray Pickens, Chad Daniel Pickens, and Ernest Ray Pickens, Parent and Next Friend of R.N.P., a Child, Appellants, v. SCI TEXAS FUNERAL SERVICES, INC. d/b/a Connally/Compton Funeral Directors, Inc. and A & W Industries, Inc. d/b/a Wilbert Vault Co. of North Texas, Appellees.
• Court: Texas Court of Appeals

234 S.W.3d 251

Jane GILMORE, Clayton Ray Pickens, Chad Daniel Pickens, and Ernest Ray Pickens, Parent and Next Friend of R.N.P., a Child, Appellants, v. SCI TEXAS FUNERAL SERVICES, INC. d/b/a Connally/Compton Funeral Directors, Inc. and A & W Industries, Inc. d/b/a Wilbert Vault Co. of North Texas, Appellees.

No. 10-06-00209-CV.

Court of Appeals of Texas, Waco.

August 15, 2007.

Rehearing Overruled September 11, 2007.

Greg White, Naman Howell Smith & Lee LLP, Waco, for appellants.

Michael G. Cosby, Pakis Giotes Page & Burleson PC, Jean M. Siska, Williams McClure & Parmelee, Fort Worth, for appellees.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

FELIPE REYNA, Justice.

Appellants Jane Gilmore and the Pickens family bring this appeal from a take-nothing judgment rendered in favor of a funeral home and a cemetery vault company arising from an incident at the graveside service for Pam Pickens when a lowering device failed and the casket tipped and fell to the bottom of the vault. Appellants contend in three issues that: (1) the court abused its discretion by denying their motion for new trial in which they argued that the jury's verdict is against the great weight and preponderance of the evidence on the issues of whether: (a) the funeral home breached its contract, (b) the funeral home was negligent, and (c) they suffered compensable mental anguish damages; (2) the court erred by failing to instruct the jury in the charge that the funeral home was liable for the acts and omissions of the vault company under section 651.408 of the Occupations Code; and (3) the court erred by failing to submit a spoliation instruction in the charge because the vault company discarded the lowering device. We will affirm in part and reverse and remand in part.

Background

Pam Pickens, who was forty years' old, suffered a series of unexplained seizures which caused her brain function to cease. She was removed from artificial life support only days after she was admitted to the intensive care unit. Her mother Jane Gilmore handled the funeral arrangements.¹

Gilmore made the arrangements with Connally/Compton Funeral Home. The Connally/Compton representative recommended the "Wilbert Way" to Gilmore, which involves a ceremonial lowering of the casket into a vault and the sealing of the vault at the conclusion of the graveside service. The Wilbert Way is a service provided by the Wilbert Vault Company.

At the graveside service, the pastor stepped aside after he finished a Scripture reading, and two men approached the casket. One of them, Wilbert Vault employee James Turner, attached a pair of vice grips to a lowering device and began lowering the casket into the vault. Several witnesses testified that the lowering device emitted a ratcheting sound which was described by Gilmore's husband as being similar to a winch pulling a boat onto a trailer.² As the casket was being lowered, there was a "big boom," and the casket turned sideways and fell an unspecified distance to the bottom of the vault. The casket was partially opened by the impact, Pam's arm was exposed, and several mementos spilled out.

According to the testimony, the peaceful setting suddenly broke into pandemonium. Those in attendance scattered. There were screams. The pastor noticed "a young girl laying out on the ground." According to the Connally/Compton funeral director, "everyone was visibly upset." Several men righted the casket. The pastor had others stand in a line between the vault and the seats to provide a shield for those in attendance. At the funeral director's suggestion, the casket was opened, Pam's body was repositioned, and the mementos were returned to the casket.

After the casket fell, Gilmore was dazed and noncommunicative. Her husband testified that she "turned just as white as your shirt." In her own words, she "was way out there." She does not remember being helped to a car or taken home. She does not remember her pastor coming to visit that night. Because of her condition, Gilmore's husband had to handle family matters for a period of time. He adjusted his work schedule because she was so "distraught" that he did not want "to leave her too long by herself." He discussed the situation with Connally/Compton representatives in the days after the funeral and arranged for Pam's body to be exhumed, placed in a new casket, and reinterred in a new vault one week after the funeral. Gilmore's condition was such that she could not attend the reinterment. She testified that the screams from the graveside service "are just embedded in my mind."

Pam's oldest son Clay testified that when the casket fell he ran up to see what had happened. He estimated the casket to have opened about eight to ten inches. He saw his mother's body, which did not appear as it had for the viewing earlier in the funeral home. He then turned away and went to be with a group of his friends who had come to the graveside service. From that point, everything was "[j]ust a blur."

Pam's other son Chad testified that when the casket fell he "just stood there kind of shocked. I didn't know what to do. I was just mad." His friends came up to console him. He testified that the family drove to the Gilmores' house afterward, but he did not recall much after that.

Pam's daughter R.N.P. testified that she "[t]ook off running" when the casket fell. She ran out into the cemetery and fell down at some point. Her father and some friends came and helped her up. She did not return to the graveside area, and the only other memory she has from that day is being at the Gilmores' house afterward with the family.

Wilbert Vault had the lowering device taken to its offices in Grapevine "to determine what had gone wrong with it." It was "determined that the device couldn't be repaired," so Wilbert Vault discarded it with other scrap metal.

Gilmore and the Pickenses filed suit against Connally/Compton³ and Wilbert Vault alleging violations of Chapter 651 of the Occupations Code and of the DTPA, breach of warranty, negligence, breach of contract, and fraud. They alleged that the defendants were liable for each other's conduct under a joint-enterprise theory and alternatively that Connally/Compton was liable for Wilbert Vault's conduct under section 651.408 of the Occupations Code.

The court granted Connally/Compton's and Wilbert Vault's summary-judgment motions on the fraud, DTPA, and breach of warranty claims.

At trial, the jury was charged on the breach of contract and negligence claims as well as the joint-enterprise theory. The jury refused to find that Connally/Compton breached its contract, that Connally/Compton and Wilbert Vault were engaged in a joint enterprise, or that any negligence on Connally/Compton's part was a proximate cause of the occurrence in question. The jury found that Wilbert Vault's negligence was a proximate cause but also found that none of the plaintiffs suffered compensable mental anguish.

Mental Anguish

Appellants contend as part of their first issue that the court abused its discretion by denying their motion for new trial in which they argued that the jury's refusal to award compensable mental anguish damages is against the great weight and preponderance of the evidence.

When an appellant challenges "a jury's failure to award any damages, courts of appeals should apply the principles articulated in Pool v. Ford Motor Co." Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 775 (Tex.2003) (citing Pool, 715 S.W.2d 629, 635 (Tex.1986)).

The court of appeals must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. In doing so, the court of appeals must "detail the evidence relevant to the issue" and "state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict."

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001) (quoting Pool, 715 S.W.2d at 635).

To recover damages for mental anguish, plaintiffs must produce either:

(1) "direct evidence of the nature, duration, or severity of [plaintiffs'] anguish, thus establishing a substantial disruption in the plaintiffs' daily routine"; or

(2) other evidence of "`a high degree of mental pain and distress' that is `more than mere worry, anxiety, vexation, embarrassment, or anger.'"

Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex.1996) (quoting Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995)); accord W. Telemarketing Corp. Outbound v. McClure, 225 S.W.3d 658, 669 (Tex.App.-El Paso 2006, pet. denied); Dillard Dep't Stores, Inc. v. Silva, 106 S.W.3d 789, 799 (Tex.App.-Texarkana 2003), aff'd, 148 S.W.3d 370 (Tex.2004) (per curiam).

Recovery is warranted in such cases where the plaintiff's mental pain has risen to such a level that it has rendered him or her incapable of dealing with certain everyday activities. For instance, as a result of the mental pain, the plaintiff suffers from a myriad of negative emotions; some of these emotions may manifest themselves in such a way as to make it difficult for the plaintiff to eat, sleep, work, socially interact, or carry on any other activity which, until the time of the alleged injury, he or she could accomplish on a day-to-day basis without difficulty.

Dillard Dep't Stores, 106 S.W.3d at 799-800; accord Ortiz v. Furr's Supermarkets, 26 S.W.3d 646, 653 (Tex.App.-El Paso 2000, no pet.).

"[E]xcept in certain specific, limited instances," a plaintiff may not recover mental anguish damages in a negligence case if the plaintiff did not also suffer physical injury. Temple-Inland Forest Prods. Corp. v. Carter, 993 S.W.2d 88, 91 (Tex.1999). As an exception to this general principle, a plaintiff may recover damages for mental anguish which is:

the foreseeable result of a breach of duty arising out of certain special relationships....