Hofer v. Lavender

• Decision Date: 11 July 1984
• Docket Number: No. C-2552,C-2552
• Citation: 679 S.W.2d 470
• Parties: J.D. HOFER et ux., Petitioners, v. Sharon LAVENDER, Respondent.
• Court: Texas Supreme Court

Page 470

679 S.W.2d 470

J.D. HOFER et ux., Petitioners, v. Sharon LAVENDER, Respondent.

No. C-2552.

Supreme Court of Texas.

July 11, 1984.

Rehearing Denied Nov. 28, 1984.

Edwards, McMains & Constant, William R. Edwards and Russell H. McMains, Corpus Christi, for petitioners.

Hunt, Hermansen, McKibben & Barger, Tom Hermansen, Corpus Christi, for respondent.

KILGARLIN, Justice.

The first of two issues involved in this case is whether exemplary damages may be recovered from the estate of a tortfeasor. Incidental to that inquiry is whether under Tex.Rev.Stat.Ann. art. 5525 (statute providing for survival of causes of action for personal injuries), exemplary damages may be recovered by persons other than those named in Tex. Const. art. XVI, § 26. J.D. Hofer, and his wife, Joan Hofer, brought suit against Sharon Lavender, personal representative of the estate of Robert W. Springate, deceased, in which, among other things, the Hofers sought exemplary damages for themselves, individually and for the estate of their deceased daughter, June. The judgment of the trial court included an award for both sets of exemplary damages. The court of appeals concluded that exemplary damages could not be recovered against the estate of a deceased and, accordingly, reversed the judgment of the trial court and rendered judgment that the Hofers recover no exemplary damages in any capacity. 658 S.W.2d 812. We reverse the judgment of the court of appeals and reinstate the exemplary damage awards to the Hofers, individually. We sever and remand this cause to that court for a determination of Lavender's contention that the amount of exemplary damages allowed the estate of June Hofer was excessive.

June Hofer, age eighteen, while driving a vehicle, with her parents as passengers, was struck by a vehicle driven by Robert W. Springate. Tests administered shortly after the accident indicated that Springate had a 0.27% blood alcohol content. June Hofer survived the accident but a few hours. Springate died of unrelated causes before the case came to trial. In answer to special issues, the jury found Springate to have been guilty of gross negligence and awarded J.D. Hofer and Joan Hofer $100,000 each in exemplary damages. The jury likewise awarded the estate of June Hofer $200,000 in exemplary damages. Although the Hofers had pleaded for damages under Tex.Rev.Civ.Stat.Ann. art. 4671 (Texas Wrongful Death Act), there is no contention that the exemplary damages awarded to J.D. Hofer and Joan Hofer, individually, were done so pursuant to that statute. No objection to the charge was made in this respect and there has been no complaint as to excessiveness of those exemplary damages. We will, therefore, conclude that such damages were awarded to the Hofers as individuals, and are supported by actual damages awarded to the Hofers on account of their own personal injuries sustained in the accident.

The trial court defined "exemplary damages" in respect to the pertinent special issues as follows:

"Exemplary damages" means an amount which you may award in your discretion and as an example for the good of the public, in the interest of society at large in deterring the commission of similar wrongs.

The Hofers contend that under the Texas Survival Statute, all causes of action survive, both in behalf of the estate of the deceased and against the estate of the tortfeasor. The Hofers additionally assert that the constitutional designation of who may recover exemplary damages applies to wrongful death actions, only, and was not meant to preclude recovery under the survival statute. Ms. Lavender contends that as the purpose of punitive damages is punishment, and as a deceased may no longer be punished on this earth, there is no longer a basis for awarding such damages. While neither the word "punitive" nor a discussion of its purpose are contained in the court's charge, no objection was made as to the instruction other than the one that punitive damages cannot be recovered against the estate of a deceased. Nevertheless, we consider that objection sufficient to have preserved error, if any. Ms. Lavender further maintains that in any event, the estate of June Hofer is not entitled to recover exemplary damages because parents are not included among the constitutional list of those entitled to recover. While supporting Ms. Lavender's position on the first contention, the court of appeals concluded that but for the death of Springate, the constitutional provision would not have barred recovery of exemplary damages by the estate of June Hofer.

At common law all causes of action died with the person of the party injured or the person inflicting the injury, except damages to property. Johnson v. Rolls, 97 Tex. 453, 79 S.W. 513 (1904); Johnson v. Farmer, 89 Tex. 610, 35 S.W. 1062 (1896); and, Watson v. Loop, 12 Tex. 11 (1854). That was changed by the adoption of the Texas Survival Statute which was initially enacted May 4, 1895. Ch. 89, 1895 Tex.Gen.Laws 143. It has since been amended, and now reads as follows All causes of action upon which suit has been or may hereinafter be brought for personal injuries, or for injuries resulting in death whether such injuries be to the health or to the reputation, or to the person of the injured party, shall not abate by reason of the death of the person against whom such causes of action shall have accrued, nor by reason of the death of such injured person, but, in the case of the death of either or both, all such causes of action shall survive to and in favor of the heirs and legal representatives and estate of such injured party and against the person, or persons liable for such injuries and his or their legal representatives, and may be instituted and prosecuted as if such action or persons against whom same accrued were alive. (emphasis added).

Tex.Rev.Civ.Stat.Ann. art. 5525. Because of the survival statute, it is now accepted that death of the injured party does not bar a recovery of exemplary damages by the estate. Castleberry v. Goolsby Building Corp., 617 S.W.2d 665 (Tex.1981); Folsom Investments, Inc. v. Troutz, 632 S.W.2d 872 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.); Pace v. McEwen, 574 S.W.2d 792 (Tex.Civ.App.--El Paso 1978, writ ref'd n.r.e.); Houston American Life Insurance Co. v. Tate, 358 S.W.2d 645 (Tex.Civ.App.--Waco 1962, no writ). The argument advanced by the Hofers is that as the survival statute has been interpreted to allow the recovery of exemplary damages to survive the death of one injured, why would not the same survival statute permit the recovery of exemplary damages against a deceased tortfeasor?

The Hofers rely on the survival statute in their attempt to distinguish this case from that of Wright's Administratrix v. Donnell, 34 Tex. 291 (1870), relied upon by Lavender. That "semi-colon" court ¹ opinion held that punitory or vindictive damages could not be recovered against the representative of a deceased. It is true that many other jurisdictions have also denied the recovery of exemplary damages from the estate of a deceased tortfeasor. However, the overwhelming majority of those states which have done so have acted on the basis of either a statute which explicitly precluded such a recovery ² or on premises which did not involve the interpretation of a survival statute. ³

Statutory enactments by other states prohibiting or allowing punitive damages provide no assistance in resolving the specific issue before us: whether exemplary damages may be assessed under a statute which specifically provides that all causes of action survive against the representative of a deceased. As to the cases cited in footnote three, two important considerations must be observed. First, these cases did not interpret the right of recovery under a survival statute. Second, all of these opinions are based on the concept that the purpose of punitive damages is to punish the wrongdoer and that as the wrongdoer, in death, is beyond punishment, the reason for assessment no longer exists. Specifically, there is no mention, except by the courts of Alabama and Wyoming, that an additional purpose of such damages is to serve as an example and warning to others. In Meighan v. Birmingham Term. Co., 165 Ala. 591, 51 So. 775 (1910), the Alabama court does mention that punitive damages serve as a warning to other wrongdoers, but concludes that punitive damages are assessed as punishment. In Marcante v. Hein, 51 Wyo. 389, 67 P.2d 196 (1937), the Wyoming court states that "since the purpose of punitive damages is to punish the wrongdoer for his acts" and to deter him from future commission of wrongs, such damages are not allowed. These cases, not being based on survival act interpretations, offer little assistance in resolving the issue, as previously stated. Further, whatever may be the majority rule in other jurisdictions or be the expression of commentators does not necessarily mean it will be the rule of law in Texas. See Givens and Dawson d/b/a United Farm Agency v. Dougherty, 671 S.W.2d 877 (Tex.1984).

Courts in five states have addressed the question which is presented here, i.e., the assessment of exemplary damages against a deceased tortfeasor under a survival statute. Those states are Florida, Iowa, Minnesota, Nevada ⁴ and West Virginia. The statutes of the states are similar to that of Texas in regards to the language that all causes of action survive in behalf of a deceased and against a deceased tortfeasor. ⁵ Florida and West Virginia have concluded that exemplary damages may be assessed against the estate of a deceased tortfeasor. The courts of the other three states have concluded to the contrary. In analyzing the reasons for different results in interpreting similar statutes, the distinctions turn on the reasons for assessing punitive or exemplary damages. The Minnesota Supreme Court in Thompson v. Estate of Petroff, 319 N.W.2d 400, 408 (Minn.1982), concluded that actual damages were recoverable...