Lavender v. Hofer

• Citation: 658 S.W.2d 812
• Decision Date: 15 September 1983
• Docket Number: No. 13-82-100-CV,13-82-100-CV
• Court: Court of Appeals of Texas
• Parties: Sharon LAVENDER, Personal Representative of the Estate of Robert W. Springate, Deceased, Appellants, v. J.D. HOFER & Wife, Joan Hofer, Individually and As Personal Representatives of the Estate of Their Daughter, June Deborah Hofer, Deceased, Appellees.

Page 812

658 S.W.2d 812

Sharon LAVENDER, Personal Representative of the Estate of Robert W. Springate, Deceased, Appellants, v. J.D. HOFER & Wife, Joan Hofer, Individually and As Personal Representatives of the Estate of Their Daughter June Deborah Hofer, Deceased, Appellees.

No. 13-82-100-CV.

Court of Appeals of Texas Corpus Christi.

Sept. 15, 1983.

Rehearing Denied Oct. 16, 1983.

Tom Hermansen, Kleberg, Dyer, Redford & Weil, Corpus Christi, for appellants.

Russell H. McMains, Edwards & Perry, Corpus Christi, for appellees.

Before NYE, C.J., and YOUNG and KENNEDY, JJ.

OPINION

NYE, Chief Justice.

This is a personal injury case arising out of an intersection collision in which the only issues on appeal concern the punitive damages awarded and the recovery by the appellees of damages for mental anguish and loss of companionship.

The jury found that Robert W. Springate was guilty of numerous acts of negligence and gross negligence, all of which were the proximate cause of the death of June Hofer. The facts concerning the liability of the appellant are not at issue and need not be further discussed. It should be noted that Robert W. Springate, the original defendant, died of unrelated causes after suit was filed by appellees, but before trial. His daughter, Sharon Lavender, was substituted as his personal representative. The appellees are the mother and father of June Hofer, who died in the collision from which this litigation arose.

The jury assessed actual damages against the defendant in the amount of $109,837.25. They awarded appellees actual damages in the amount of $10,000.00 for loss of society and companionship of their daughter and assessed punitive damages against the appellant (Robert W. Springate's estate) in the amount of $400,000.00. It is only the latter two awards that are the subject matter of this appeal.

In his first point of error, the appellant complains that the trial court erred in allowing the victim's parents to recover exemplary damages because they are not in the class of persons designated to recover exemplary damages under the Texas constitution. The Texas Constitution, in Art. XVI § 26, provides Every person, corporation, or company, that may commit a homicide, through willful act or omission, or gross neglect, shall be responsible for exemplary damages, to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to the homicide.

It is appellant's argument that, regardless of whether or not recovery is sought under Tex.Rev.Civ.Stat.Ann. art. 4671 (Vernon Supp.1982), the Wrongful Death Act; or Tex.Rev.Civ.Stat.Ann. art. 5525 (Vernon 1958), the Survival Statute, the parents of the victim are not within the class designated to recover exemplary damages. While we may agree with appellant's argument concerning art. 4671 which allows recovery by a decedent's surviving spouse, children and parents for their losses as a result of the death, ¹ we do not agree with this analysis of art. 5525 (The Survival Statute). Recovery of exemplary damages in wrongful death cases are limited to that class of people set forth in art XVI § 26 of the Texas Constitution. Heil Co. v. Grant, supra at 925; Scoggins v. Southwestern Electric Service Co., 434 S.W.2d 376 (Tex.Civ.App.--Tyler 1968, writ ref'd n.r.e.). Appellees' claims are not predicated on article 4671 alone, but also on article 5525 which allows recovery by the legal representatives of the deceased for injuries suffered by the deceased. The question then becomes whether or not the heirs or legal representatives of the injured party who are not within the class of persons entitled to recover exemplary damages under art. XVI § 26 of the Texas Constitution may recover such damages under the Survival Statute.

Surviving parents may recover exemplary damages as representatives or heirs of the estate under art. 5525. It is apparent from a simple reading of the statute, that the deceased's entire cause of action, including that for exemplary damages survives death. Therefore, the heirs or representatives of the estate should be allowed to pursue the entire cause of action and not lose a part of said cause of action because they do not fall within the class of people set forth in art. XVI § 26 of the Texas Constitution. Folsom Investment, 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); See also Castleberry v. Goolsby Building Corp., 617 S.W.2d 665 (Tex.1981), wherein the court held that the Worker's Compensation Act does not bar a deceased's cause of action for exemplary damages which survives through his estate under art. 5525.

We acknowledge that our holding herein concerning the application of art. 5525 may be inconsistent with some dicta in our opinion in Bedgood v. Madalin, 589 S.W.2d 797 (Tex.Civ.App.--Corpus Christi 1979), reversed 600 S.W.2d 773 (Tex.1980). To the extent that such inconsistency exists, we withdraw that portion of the opinion that reflects such inconsistency. The appellant's first point of error is overruled.

Appellant's second point of error raises a question of law that is unique to Texas jurisprudence. That question is whether or not punitive damages are recoverable against the estate of a deceased tort-feasor. This exact question may be one of first impression in Texas because, although the issue has been discussed in two previous appellate decisions, such cases do not directly address the question that is before us. In Wright's Administratrix v. Donnell, 34 Tex. 291 (1870), the court observed that an issue on punitive damages against the estate of a tort-feasor should not have been submitted to the jury but deemed the submission of that issue harmless in light of the jury's finding of no punitive damages. In Sears, Roebuck and Co. v. Jones, 303 S.W.2d 432 (Tex.Civ.App.--Waco 1957, writ ref'd n.r.e.), the court cites the Wright's Administratrix opinion for the proposition that exemplary damages are not available against the estate of a tort-feasor. However, the court found no evidence to support the submission of any punitive damage issue, so the question of application of the award was not at issue. We pause to note that the Wright's Administratrix decision came out of the so-called "carpet-bagger court" of the 1861-1873 era. For a discussion of the impact of such a decision, see M. Boner, A Reference to Texas Law and Legal History 29-32 (1976) and see Norvell, Oran M. Roberts and the Semicolon Court, 37 Tex.L.Rev. 279 (1959).

There are three other opinions in Texas which have refused to allow the assessment of statutory penalties against the estate of the deceased wrong-doer. Basham v. Smith, 149 Tex. 279, 233 S.W.2d 297 (1950) (violation of Federal Rent Control Act); Wright v. E-Z Finance Co., 267 S.W.2d 602 (Tex.Civ.App.--Dallas 1954, writ ref'd n.r.e.) (usury); Whorton v. Nevitt, 42 S.W.2d 1056 (Tex.Civ.App.--Waco 1931, no writ) (usury). These holdings are analogous to the question at bar, but are not in point. See also, Anderson, Indemnity against Punitive Damages: An Examination of Punitive Damages, Their Purpose, Public Policy, and Coverage Provisions of the Texas Standard Automobile Policy 27 SW.L.J. 593, 623, wherein the author cites Sears, Roebucks and Company v. Jones, supra and Wright v. E-Z Finance Co., supra, for the proposition that exemplary damages are not recoverable against the estate of a decedent.

An analysis of the primary question reveals a more fundamental question which must first be decided. That question is, what is the purpose of exemplary or punitive damages? Professor Prosser, in his definitive work on torts, (Law of Torts Fourth Addition (1971) in section 2 at page 9), observed that "[s]uch damages are given the plaintiff over and above the full compensation of his injuries for the purposes of punishing the defendant, of teaching him not to do it again, and of detering others from following his example." Both 22 Am.Jur.2d, Damages § 237 (1965) and 25 C.J.S., Damages § 117(1) (1966) follow Professor Prosser's analysis that exemplary damages are awarded for the purpose of punishing the defendant and making an example of the defendant to deter others. Likewise, the Restatement (second) of Torts § 908 (1977) states the purposes of punitive damages are punishment of the wrong-doer and to set an example for others.

We observe that the Texas encyclopedia has adopted a position on the purpose of exemplary damages consistent with all of the above cited authority. In 17 Tex.Jur.2d, Damages § 174 (1960), it is stated that exemplary damages are awarded, not as compensation to the injured party, "but as punishment ... and as a deterrent to the defendant and others from future commission of like offenses and wrongs." Citing Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709 (1943); Pedernales Electric Coop, Inc. v. Schulz, 583 S.W.2d 882 (Tex.Civ.App.--Waco 1979, writ ref'd n.r.e.); Courtesy Pontiac, Inc. v. Ragsdale, 532 S.W.2d 118 (Tex.Civ.App.--Tyler 1975, writ ref'd n.r.e.); Bank of North America v. Bell, 493 S.W.2d 633 (Tex.Civ.App.--Houston [14th District] 1973, no writ). Therefore, based on the premise that the purpose of exemplary damages is punishment and to make an example of the wrong-doer, we look at the primary question of the applicability of such damages to the estate of a deceased tort-feasor.

The appellees sought recovery of exemplary damages under the auspices of Tex.Rev.Civ.Stat.Ann. art. 5525 (Vernon 1958); the Survival Statute. The Survival Statute provides:

"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...