Houston-American Life Ins. Co. v. Tate

• Decision Date: 24 May 1962
• Docket Number: HOUSTON-AMERICAN,No. 3985,3985
• Citation: 358 S.W.2d 645
• Parties: LIFE INSURANCE CO. et al., Appellants, v. Eleanor M. TATE, Appellee.
• Court: Texas Court of Appeals

Page 645

358 S.W.2d 645

HOUSTON-AMERICAN LIFE INSURANCE CO. et al., Appellants, v. Eleanor M. TATE, Appellee.

No. 3985.

Court of Civil Appeals of Texas, Waco.

May 24, 1962.

Affirmed as Reformed on Remittitur May 31, 1962.

Rehearing Denied June 28, 1962.

Irion, Cain, Cocke & Magee, Don W. Davis, Dallas, for appellants.

Fritz & Vinson, Edward R. Vinson, Dallas, for appellee.

TIREY, Justice.

This action was brought originally by Millard C. Tate for actual and exemplary damages he claimed to have sustained to himself and to his wife because of the wrongful conduct of the appellant in seeking to enforce the provisions of a usurious contract. Before the trial his wife filed a suggestion of death stating that her husband had died and alleged that she was his surviving widow; that under his will she was named the sole beneficiary and independent executrix without bond. She alleged that the cause of action is one which survives, and she asked the Court that the suit be continued in her name, namely Eleanor M. Tate, in her own right, and as independent executrix of the estate of Millard C. Tate, plaintiff. The Court granted this motion and entered an order in accordance with the request. The Court overruled appellant, Houston-American Life Insurance Company's motion for severance and submitted the cause to the jury. The verdict was favorable to plaintiffs. The jury fixed the actual damages in behalf of Mrs. Tate and her husband at $100.00 each, and awarded the sum of $6300.00 as exemplary damages. The Court overruled each of appellants' motions for judgment and for remittitur, and granted plaintiff's motion on the verdict of the jury and decreed to Mrs. Tate in her own right and as independent executrix of the estate of Millard C. Tate, deceased, against the defendants, jointly and severally: (1) cancellation of $50.61 usurious interest contained in the promissory note of September 21, 1956, (2) and awarded to her $196.33 insurance benefits, (3) and $200.00 actual damages for mental or emotional pain and physical illness suffered by Eleanor M. Tate and Millard C. Tate, deceased, and (4) $6300.00 exemplary damages for malicious harassment, with interest on the sums specified in (2), (3) and (4) above, at the rate of 6% per annum from the date of this judgment, and (5) all court costs in this cause incurred. The judgment is assailed on 13 Points. 1 and 2 are to the effect that judgment for exemplary damages does not survive the death of the injured party, and that plaintiff failed to request and obtain the submission of a separate issue inquiring as to exemplary damages relative to the surviving plaintiff only, and that since exemplary damages do not survive in behalf of the deceased husband, there is no way in which the Court can split the exemplary damages here awarded because it was submitted in one issue. Issues 21, 28 and 30 are pertinent to the above Points. 21 is: 'Do you find from a preponderance of the evidence that the said unreasonable collection efforts, if any, by Houston-American Finance Corporation against Eleanor M. Tate were actuated by malice, as that term is defined herein?' To which the jury answered 'Yes'. '28. Do you find from a preponderance of the evidence that the said unreasonable collection efforts, if any, by Houston-American Finance Corporation against Millard C. Tate were actuated by malice, as that term is defined herein?' To which the jury answered 'Yes.' Issue 30: 'What sum of money, if any, do you find from a preponderance of the evidence should be awarded plaintiff as exemplary damages for the malicious collection efforts, if any, of Houston-American Finance Corporation, against Millard C. Tate and Eleanor M. Tate?' To which the jury answered '$6300.00.' Defendants only objection to Issues 21 and 28 is: 'that the same is wholly without support in the evidence.' There is no objection to Issue 30. Article 5525 Vernon's Ann.Tex.Civ.St., provides that:

'All causes of action upon which suit has been or may hereafter 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 cause 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 person or persons against whom same accrued were alive.'

Rule 150 Texas Rules of Civil Procedure provides in effect, where the cause is one which survives, no suit shall abate because of the death of any party thereto. In Norman v. Valley Gin Co., (Tex.Civ.App., 1936), 99 S.W.2d 1065, writ ref., the Beaumont Court, in considering this statute stated:

'Under this statute, the cause of action that survives is for damages for injuries received by the injured party, which, if he lives, may be recovered by him, but, if he dies from the injuries, then his heirs and legal representatives have the right to recover the same damages that the injured party, had he lived, could have recovered. That is, his right to recover damages because of the injuries which he has suffered up to the time of his death, survives to his heirs, legal representatives, and estate. The value of his life, measured by his earning power during the period of his life expectancy, is not the estate, the right to recover which is provided by the statute.'

We see no conflict in the Beaumont Court's opinion with the Texarkana Court in Fleming Oil Company v. Watts, Tex.civ.App., 193 S.W.2d 979, writ ref., n. r. e. However, if there should be, the Beaumont opinion would control because of the straight out refusal, and because our Supreme Court has not changed or modified the statement of the Rule there made. See also 33 Tex.Jur. 179. In Vol. 1 C.J.S. Abatement and Revival Sec. 138, p. 190, we find this statement:

'* * * ordinarily where a cause of action ex delicto survives the death of person injured, it survives in its entirety so as to entitle the personal representative to recover exactly the same damages as his decedent might have recovered.'

In 1 Am.Juris., Sec. 89, (pocket part) we find this statement of the Rule:

'In a majority of cases considering the question, the view has been taken that where an action in which exemplary damages might properly be allowed has been begun by the injured party himself, his later death does not preclude recovery of such damages by his personal representative, assuming, of course, that circumstances justifying the allowance of punitive damages generally are adequately established.'

It is true that we have not been cited to any case in Texas where any of our Appellate Courts have held that a cause of action (similar to this one) for exemplary damages survives. However, the question has been passed upon by the Supreme Court of Vermont where the survival statute is very similar in many respects to our Art. 5525, R.C.S. The Vermont statute, Gen.St., c. 52 Sec. 11, provides as follows:

'If, in any proper action new pending, or which may hereafter be commenced, for the recovery of damages for any bodily hurt or injury, occasioned to plaintiff by the act or default of defendant * * *, either party shall decease during the pendency of such action, such action shall, nevertheless, survive, and may be prosecuted to final judgment by or against the executors or administrators of such deceased party.'

In Bradley v. Andrews, Supreme Court of Vt., 51 Vt. 525, the father instituted a suit in behalf of his minor son for injuries sustained when the defendant shot the boy with a Roman Candle. The son died before the trial, and the defendant contended the cause of action abated by reason of the son's death, and the Supreme Court held that under the above statute quoted that the cause of action survived in favor of the father as administrator, both as to actual and exemplary damages. Again in Earl v. Tupper, 45 Vt. 275, we have this situation: Mr. and Mrs. Earl had brought suit for actual and exemplary damages on account of Mrs. Earl having been beaten by the defendant with a stick. Mrs. Earl died during the pendency of the suit. Her husband prosecuted the suit to completion and recovered actual and exemplary damages. The Court, in discussing exemplary damages, said:

'But, as has been stated before, such damages are given to stamp the condemnation of the jury upon the acts of the defendant on account of the malicious or oppressive character of the acts, and the decease of the party injured would not take away the bad character of the acts, nor prevent the jury from holding them in detestation nor take away their right to visit the defendant with damages to show what might be expected from similar conduct.'

In 17 Tex.Jur.2d at page 241, we find this statement:

'Although the Courts declare that exemplary damages are not compensatory in character, nevertheless they are, in some aspects, compensatory, for they are payment to the sufferer in an attempt to compensate him for his sufferings.'

In Cole v. Tucker, 6 Tex. 266, we find this statement by Chief Justice Hemphill:

'It is only by legal fiction that the plaintiff suing for exemplary damages represents the public.'

In Allison v. Simmons, Tex.Civ.App., 306 S.W.2d 206, n. r. e., this Court approved the following definition of exemplary damages:

'Compensation allowed by law in addition to actual damages by way of punishment, and as an example for the good of the public, and may also include compensation for inconvenience, reasonable attorney's fees, and other losses too remote to be considered under actual damages.'

Citing Wright Titus, Inc. v. Swafford, Tex.Civ.App., 133 S.W.2d 287,...