Go Intern., Inc. v. Lewis

• Decision Date: 04 June 1980
• Docket Number: No. 6861,6861
• Citation: 601 S.W.2d 495
• Parties: GO INTERNATIONAL, INC. et al., Appellants, v. Hazel O. LEWIS, Individually, et al., Appellees.
• Court: Texas Court of Appeals

Page 495

601 S.W.2d 495

GO INTERNATIONAL, INC. et al., Appellants, v. Hazel O. LEWIS, Individually, et al., Appellees.

No. 6861.

Court of Civil Appeals of Texas, El Paso.

June 4, 1980.

Rehearing Denied June 25, 1980.

Rassman, Gunter & Boldrick, John E. Gunter, Leslie G. McLaughlin, Midland, for appellants.

Law Offices of Warren Heagy, Warren Heagy, Phillip E. Godwin, Odessa, for appellees.

OPINION

WARD, Justice.

This is a wrongful death action arising out of a head-on collision between a motorcycle and a truck. Suit was brought for the benefit of the five minor children of the two deceased motorcycle riders. Trial was to a jury, and, based on issues submitted, judgment was entered for actual and exemplary damages for each of the five children. The corporate truck owner and truck driver appeal, both complaining of (1) the liability of the two Defendants for any exemplary damages, (2) the award of either actual or exemplary damages to two of the children who had been adopted by others prior to the death of their natural parents, and (3) the excessiveness of the award of the exemplary damages. We affirm in part, and reverse and render in part.

The accident occurred on Sunday, June 13, 1976, in Odessa. A heavy logging truck, driven by Jimmy Wester and owned by his employer, Go International, Inc., was returning from having made an induction log in Iraan, and was attempting to turn into the company parking lot. In doing so, the truck made a left hand turn into the path of an oncoming motorcycle, which was being ridden by Ray Wampler and his wife, Dovie Ellen Wampler. Mr. and Mrs. Wampler were killed immediately. They left five minor children; however, the two oldest had been adopted by an aunt when they were quite young and their names had been changed to Mills. Jimmy Wester, the truck driver, was twenty years of age at the time of the accident, had been driving for Go International since he was eighteen, and his driving record was bad. Suit was filed on behalf of the five children with Hazel Lewis, a grandmother, representing the three youngest, and Thelma Williams, an aunt, representing the two oldest. The Plaintiffs alleged that Wester was negligent in several respects, and that Go International was negligent in entrusting the truck to Jimmy Wester in view of his past driving record; that Go International was liable to the Plaintiffs under the doctrine of negligent entrustment; and, further, that, under the circumstances, the entrustment of the truck to Jimmy constituted gross negligence. In response to the Court's charge, the jury determined that the truck driver was guilty of two acts of ordinary negligence that proximately caused the collision, and acquitted the motorcycle driver of any fault. In response to those issues submitting the Plaintiffs' theory of negligent entrustment, the jury found that, on the occasion in question, Jimmy Wester was driving the truck with permission of Go International Inc.; that Jimmy Wester was a reckless and incompetent driver; that when Go International permitted him to drive the vehicle, Go International knew that he was a reckless and incompetent driver; and that Go International was guilty of gross negligence in entrusting the truck to a known reckless and incompetent driver. The jury assessed actual damages to the named children of Ray Wampler as follows:

To Ouida Lucinda Wampler, $25,000.00;

To Ellen Christine Wampler, $25,000.00;

To Christopher Lynn Wampler, $35,000.00;

To William Ray Mills, $7,500.00; and

To Gerald Tennis Mills, $7,500.00.

Like sums were assessed to the same children because of the death of Dovie Ellen Wampler. Exemplary damages were awarded against Go International for the two deaths in the amount of $180,000.00 to each of the five named children. The parties stipulated that the two Defendants would pay the funeral expenses in the amount of $3,969.50. Based on the verdict and the stipulation, judgment was then entered for the benefit of the children against the two Defendants, jointly and severally, in the total sum of $1,103,969.50. Both Defendants appeal, and concede that the judgment was correct insofar as it awarded the actual damages for the three smaller children. The Plaintiffs likewise concede that the judgment was erroneous in awarding exemplary damages against Jimmy Wester, Individually.

A series of three points attack the award of any damages to the two older children who had been adopted out. At the time of trial, William Mills was sixteen and Gerald Mills was fifteen. Their aunt, Lorene Mills, adopted them fourteen years before when their natural parents were sick and unemployed. Appellees' evidence was that, after the adoption, they were still close and often visited the family. Further, the adoptive parent, Lorene Mills, and her husband had died within a year previous to the trial. The first point which we will consider is that there was error in allowing either actual or exemplary damages because, as a matter of law, the two Mills children sustained no actual damages. The point necessarily calls for an examination of the wrongful death and the adoption statutes. Actions for wrongful death did not exist at common law. The action for wrongful death is purely statutory and does not inure to the benefit of the children of a deceased by reason of inheritance. Under the Texas death statute, only those persons designated in the statute who have suffered some pecuniary loss by the death may recover. Article 4675, Tex.Rev.Civ.Stat.Ann.; Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex.1968); 17 Tex.Jur.2d Death by Wrongful Act section 18 at 556 (1960). The act permits recovery by a decedent's surviving spouse, children and parents for the pecuniary losses they sustained by reason of the death. Heil Company v. Grant, 534 S.W.2d 916, 924 (Tex.Civ.App. Tyler 1976, writ ref'd n. r. e.).

The effect of the adoption decree is now set out by Section 15.07, Tex. Family Code Ann. (1974).

A decree terminating the parent-child relationship divests the parent and the child of all legal rights, privileges, duties, and powers with respect to each other, except that the child retains the right to inherit from its parent unless the court otherwise provides.

The provision results in a complete severance of the parent-child relationship, except that the adopted child preserves its right to inherit from and through his natural parents unless the decree expressly ordered otherwise. At the same time, upon the entry of the decree of adoption, a new parent-child relationship is created between the adopted child and the adoptive parents "as if the child were born to the adoptive parents during marriage." Section 16.09, Tex. Family Code Ann. (1974). Practically the same wording was found in the old adoption statute, Section 9, Article 46a.

The Appellees rely upon Barnard v. Dallas Ry. & Terminal Co., 63 F.Supp. 344 (N.D.Tex. 1945), and Miller v. Alexandria Truck Lines, Inc., 273 F.2d 897, 79 A.L.R.2d 812 (5th Cir. 1960). Both of those cases held that minor children adopted by others could recover for the wrongful death of their natural parents under the Texas statutes.

In spite of the reasoning contained in the two federal cases, we feel that the point is controlled by the holding in the later case of Patton v. Shamburger, 431 S.W.2d 506 (Tex.1968). There, the issue was whether or not death benefits under the Workmen's Compensation Act could be paid to the workman's children who had been adopted by another man. Regardless of the rights that adopted children had to inheritance from their natural parent, the Court held that the right to workmen's compensation benefits were not obtained through an inheritance but were conferred by statute, and the portions of the adoption statute relating to inheritance were not applicable. The Court stated that the adopted children were no longer "minor children" of the natural father under the workmen's compensation statute, but became minor children of the adopted parents. The Patton holding has since been followed in Zanella v. Superior Insurance Company, 443 S.W.2d 95 (Tex.Civ.App. Eastland 1969, writ ref'd), and Banegas v. Holmquist, 535 S.W.2d 410 (Tex.Civ.App. El Paso 1976, no writ).

Following the reasoning made in the Patton case at page 507, the adoption statute now says that, upon adoption, all legal rights, privileges, duties and powers between the natural parent and the child with respect to each other are divested upon the adoption. Hence, if the Legislature had intended to make an exception with regard to those rights which accrue under the wrongful death statute, it could easily have said so. Goss v. Franz, 287 S.W.2d 289 (Tex.Civ.App. Amarillo 1956, writ ref'd). We hold that the two adopted children were no longer "children" within the statute. See generally Powell v. Gessner, 231 So.2d 50 (Fla.Dist.Ct.App.1970) aff'd Gessner v. Powell, 238 So.2d 101 (Fla.1950); Simmons v. Brooks, 342 So.2d 236 (La.Ct. of App.1977); Annot. 67 A.L.R.2d 745; Speicer, Recovery for Wrongful Death section 10.7 (1975).

Since there was no legal basis for the award of actual damages to the Mills children on account...