Landers v. B. F. Goodrich Co.

• Citation: 369 S.W.2d 33
• Decision Date: 15 May 1963
• Docket Number: No. A-9385,A-9385
• Parties: John W. LANDERS et al., Petitioners, v. B. F. GOODRICH COMPANY et al., Respondents.
• Court: Supreme Court of Texas

Page 33

369 S.W.2d 33

John W. LANDERS et al., Petitioners, v. B. F. GOODRICH COMPANY et al., Respondents.

No. A-9385.

Supreme Court of Texas.

May 15, 1963.

Rehearing Denied July 10, 1963.

Kolander, Moser & Templeton, Amarillo, for petitioners.

Gibson, Ochsner, Harlan, Kinney & Morris, Underwood, Wilson, Sutton, Heare & Berry, Harlow Sprouse, Amarillo, with above firm, for respondents.

WALKER, Justice.

The question to be decided in this case is whether a final judgment in a wrongful death action always bars a subsequent suit by the personal representative of the decedent against the same defendant for the recovery of funeral expenses and property damage resulting from the accident which caused the decedent's death. Guinn E. Landers and his wife, Ferne Landers, lost their lives when the automobile in which they were riding collided with a vehicle operated by Robert B. Bohanon, who was the employee of and acting in the scope of his employment for B. F. Goodrich Company at the time. The decedents, each of whom died intestate, were survived by their minor children, Roger Dale Landers and Rickie Lee Landers, and by their parents, John W. Landers, Maggie Landers, L. H. Stephens, and Fannie Stephens.

Suits were brought against B. F. Goodrich Company and Bohanon, hereinafter referred to as respondents, by John W. Landers and L. H. Stephens, acting individually and on behalf of their wives and as next friends for the minor children, to recover damages under the wrongful death statutes, Articles 4671 et seq., Vernon's Ann.Tex.Civ.Stat., and for personal injuries sustained by Roger Dale Landers in the accident. The several causes were consolidated, and after a jury trial the parties agreed upon a $90,000.00 settlement which was duly approved by the court and reduced to judgment wherein the recovery was apportioned between the minor children and their grandparents. The judgment was promptly paid and satisfied by respondents.

Several months later John W. Landers was appointed and qualified as administrator of the estate of Guinn E. Landers, deceased, and L. H. Stephens was appointed and qualified as administrator of the estate of Ferne Landers, deceased. The two administrators then filed the present suit against respondents to recover medical and funeral expenses and damage to the automobile. Respondents' motion for summary judgment was granted by the trial court, and the Court of Civil Appeals affirmed. Tex.Civ.App., 361 S.W.2d 909.

Guinn E. Landers was killed instantly. The medical expenses mentioned in the petition were incurred for the treatment of Ferne Landers prior to her death. These expenses are no longer in issue, because the administrator of her estate did not appeal from the judgment of the trial court. The administrator of the estate of Guinn E. Landers did appeal and is petitioner here. We must determine whether the judgment in the former suit bars his action for funeral expenses and damage to the automobile.

Our survival statute, Art. 5525, Vernon's Ann.Tex.Civ.Stat., speaks of actions for personal injuries, and it has been said that the Texas decisions holding that an action for damage to real or personal property survives the death of the owner are based upon an erroneous historical assumption. Morton, Survival of Actions for Property Damage in Texas, 37 Tex.Law Rev. 905, 908. The rule that such actions do survive has long been recognized, however, by both the courts and the Legislature, and we will not depart from it now. See Acts 1895, 24th Leg., p. 143, ch. 89; G.L. Vol. 10, p. 873; Ferrill's Adm'x v. Mooney's Ex'rs, 33 Tex. 219; Galveston, H. & S. A. R. R. v. Freeman, 57 Tex. 156; Texas & N. O. R. Co. v. Smith, 35 Tex.Civ.App. 351, 80 S.W. 247 (no writ); Jenney v. Jackson, Tex.Civ.App., 46 S.W.2d 418 (no writ); Harper v. Johnson, Tex.Civ.App., 331 S.W.2d 482 (reversed on other grounds, 162 Tex. 117, 345 S.W.2d 277); 1 Tex.Jur.2d Abatement and Revival, § 109, p. 116.

Where injuries caused by the negligence of another result in death, the recovery in an action for wrongful death prosecuted under the provisions of Articles 4671 et seq. may include reasonable funeral expenses paid by the statutory beneficiaries. Smith v. Farrington, 117 Tex. 459, 6 S.W.2d 736; Fort Worth & Denver City Ry. Co. v. Rogers, Tex.Civ.App., 62 S.W.2d 151 (wr. ref.). This is the majority American rule. See Annotation, 94 A.L.R. 438. At least one of our Courts of Civil Appeals has said that such expenses may be recovered either by the statutory beneficiaries who paid the same or by the estate of the decedent. See Bohn Bros. v. Turner, Tex.Civ.App., 182 S.W.2d 419 (wr. ref. w. m.); Armstrong v. Marshall, Tex.Civ.App., 146 S.W.2d 250 (wr. dis. judg. cor.). The courts of other jurisdictions are divided on the latter question. See 15 Am.Jur. Damages, § 100, p. 511. Although the recovery under Article 5525 is ordinarily limited to damages sustained by the decedent prior to his death, the reasonable cost of a suitable funeral constitutes a charge against the estate and is part of the expense which must be incurred as a result of the injuries. It is our opinion that the same may be recovered in an action brought by the heirs or legal representatives under the provisions of Article 5525 provided the defendant will not be subjected thereby to a double recovery. If the present action is not barred by the judgment in the former suit, petitioner is entitled to prosecute his claim for the funeral expenses and damage to the automobile.

Respondents say that maintenance of this suit constitutes the splitting of a cause of action and contravenes the policy which shields the defendant from a multiplicity of suits. They rely primarily on Cormier v. Highway Trucking Co., Tex.Civ.App., 312 S.W.2d 406 (no writ), and Garrett v. Matthews, Tex.Civ.App., 343 S.W.2d 289 (no writ). It was there held that a single wrongful or negligent act or omission causing injury to both the person and the property of the same...