Mayo v. Tri-Bell Industries, Inc.

• Decision Date: 21 April 1986
• Docket Number: TRI-BELL,No. 84-5010,84-5010
• Citation: 787 F.2d 1007
• Parties: 20 Fed. R. Evid. Serv. 779 Pam MAYO, Individually and as next friend of Kent and Jeremy Mayo, her minor children, Plaintiff-Appellant, v.INDUSTRIES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1007

787 F.2d 1007

20 Fed. R. Evid. Serv. 779

Pam MAYO, Individually and as next friend of Kent and Jeremy Mayo, her minor children, Plaintiff-Appellant, v. TRI-BELL INDUSTRIES, INC., Defendant-Appellee.

No. 84-5010.

United States Court of Appeals, Fifth Circuit.

April 21, 1986.

Darrell Panethiere, Dallas, Tex., for plaintiff-appellant.

Sam R. Cummings, Culton, Morgan, Britain & White, Amarillo, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, HILL and JONES, Circuit Judges.

EDITH HOLLAN JONES, Circuit Judge:

We address in this appeal the application of the Texas modified comparative negligence statute, Tex.Rev.Civ.Stat.Ann. art. 2212a, to state wrongful death claims, where the survivor plaintiffs seek damages for nonpecuniary losses, specifically loss of consortium, loss of society and mental anguish. After careful review of state case law, we conclude that the statute is equally as applicable to nonpecuniary as to pecuniary loss claims. Accordingly, we hold that the trial court properly refused to enter judgment on the jury's award of all damages, pursuant to art. 2212a, because the deceased's negligence exceeded that of the tortfeasor.

FACTUAL BACKGROUND

This appeal arises from a 1982 collision between two trailer tractors on a highway in Texas, in which both drivers, Joe Mayo and David Sullivan, were killed. The Texas plaintiffs are Mayo's wife, Pam, and her minor children, Jeremy and Kent Mayo, who brought a wrongful death action against Sullivan's employer, Tri-Bell Industries, Inc., a Montana corporation. The jury found that Mayo was 55 percent negligent and Sullivan 45 percent negligent. The jury awarded $300,000 to Mrs. Mayo for her pecuniary losses of maintenance and support, as well as nonpecuniary damages for mental anguish and loss of consortium, and $250,000 and $225,000, respectively to Jeremy and Kent Mayo for pecuniary losses, as well as mental anguish and loss of society. The trial court refused to enter judgment in favor of the survivors because of the jury's finding that Mayo's negligence exceeded that of Sullivan. The

survivors appeal the denial of recovery for nonpecuniary damages; they do not contest the apportionment of negligence.

ANALYSIS

1. Interplay of Wrongful Death and Comparative Negligence Statutes

The Texas wrongful death statute, Tex.Rev.Civ.Stat.Ann. art. 4672, ¹ provides in pertinent part:

The wrongful act, negligence ... must be of such character as would, if death had not ensued, have entitled the party injured to maintain an action for such injury.

This court, in Delesma v. City of Dallas, 770 F.2d 1334, 1338 (5th Cir.1985), recently surveyed state case law on wrongful death claims and concluded that the Texas courts have, in an undeviating line, characterized the action on behalf of the decedent's family as a purely derivative one:

[A] wrongful death claim derives wholly from the cause of action that the decedent could have asserted for personal injuries had he lived. The survivors thus occupy the decedent's legal shoes. Any defense that would have defeated a personal injury claim during his lifetime likewise vanquishes their claims.

Texas courts have construed the state modified comparative negligence statute, art. 2212a, ² to bar recovery by survivors in a wrongful death action, where the deceased's negligence is greater than the alleged tortfeasor's. Velasquez v. Livingston, 598 S.W.2d 346, 349 (Tex.Civ.App.--Corpus Christi 1980, no writ); New Terminal Warehouse Corp. v. Wilson, 589 S.W.2d 465, 470 (Tex.Civ.App.--Houston [14th Dist.] 1979), writ ref'd n.r.e., 605 S.W.2d 855 (Tex.1980); see also Folsom Investments, Inc. v. Troutz, 632 S.W.2d 872, 876 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.).

This appeal concerns the more specific related question whether the nonpecuniary claims for loss of consortium/society ³ and mental anguish, judicially created by the Texas Supreme Court, are also barred by the state comparative negligence statute. Neither parties' nor our research has unearthed a state court opinion that is dispositive of the issue. ⁴ However, sufficient precedent as to the relevant components of the issue does exist, enabling us, as an Erie court sitting in diversity, to decide the issue as a Texas court would.

Mrs. Mayo first contends that in fashioning the nonpecuniary loss remedies, the Texas Supreme Court, in effect, has created causes of action that are separate and distinct from the wrongful death action, and as such they escape the reach of art. 2212a. She relies upon holdings such as Graham v. Franco, 488 S.W.2d 390 (Tex.1972) (a husband's negligence may not be imputed to bar a wife's separate property recovery), and Gulf Production Co. v. Quisenberry, 128 Tex. 347, 97 S.W.2d 166 (1936) (a parent's negligence is not imputable to a child so as to bar the child's recovery for the child's personal injuries). In support of her position, Mrs. Mayo also points to language from the case where the Texas Supreme Court created the loss of consortium remedy, Whittlesey v. Miller, 572 S.W.2d 665, 667 (Tex.1978) ("the consortium action is ... independent and apart from that of the impaired spouse's negligence action"), and to a holding in City of Denton v. Page, 683 S.W.2d 180, 206 (Tex.App.--Fort Worth 1985), rev'd on other grounds, 701 S.W.2d 831 (Tex.1986), where the appellate court treated a mental anguish claim as non-derivative.

We do not find the nonpecuniary loss remedies asserted here to constitute separate causes of action. The first two cases cited by Mrs. Mayo, Graham and Gulf Production and their progeny, are distinguishable, because in each case, the third party is seeking to recover for personal injuries that are not derived from the injuries of the plaintiff who was contributorily negligent, but which are separate and distinct injuries inflicted directly upon the third party by the tortfeasor. ⁵ The distinction is illustrated by the recent Williams v. Steves Indus., Inc., 678 S.W.2d 205, 210 (Tex.App.--Austin 1984), aff'd, 699 S.W.2d 570 (Tex.1985), where the court reduced the recovery for the loss of society of the mother, as the driver of the car in the collision where her children were killed, in proportion to her contributory negligence. By contrast, the court awarded the father, whose claim for loss of society derived from his non-negligent children's death pursuant to the wrongful death statute, full recovery.

Mrs. Mayo's selective quotation from Whittlesey does injustice to the complete statement made by the court:

Finally, while the deprived spouse's suit for loss of consortium is considered to be derivative of the impaired spouse's negligence action to the extent that the tortfeasor's liability to the impaired spouse must be established, the consortium action is, nevertheless, independent and apart from that of the impaired spouse's negligence action.

572 S.W.2d at 667 (citations omitted). In Reed Tool Co. v. Copelin, 610 S.W.2d 736, 738 (Tex.1980), a case where a wife sought to recover for negligent loss of consortium from her husband's employer for her husband's physical injuries, the Supreme Court dispelled any possible ambiguity:

In Whittlesey, we ... characterized the wife's [loss of consortium] action as being derivative of the tortfeasor's liability to her husband for his physical injuries ... (court's emphasis).

The Reed court went on to explain that because loss of consortium is derivative, the beneficiary must, as a prerequisite, establish liability on the tortfeasor's part, and "a defense that tends to constrict or exclude" that liability "will have the same effect on [her] consortium action" 610 S.W.2d at 738-39. Even in City of Denton, 683 S.W.2d at 206, the appellate court, following Reed, reduced the wife's award for loss of consortium by the 15 percent negligence attributable to her husband.

With regard to the mental anguish claim, however, the City of Denton court, 683 S.W.2d at 206, without citing authority, essayed a different approach:

Mental anguish is an injury separate and apart from that suffered by an injured spouse. It might well be possible that the injured spouse's suit against the tortfeasor could be barred and yet the spouse suffering mental anguish could still recover against such tortfeasor. We find that a cause of action for mental anguish is not derivative and any recovery will not be constricted by the injured spouse's contributory negligence.

We note that another appellate court, in Dawson v. Garcia, 666 S.W.2d 254, 260 (Tex.App.--Dallas 1984, no writ), has reached the opposite conclusion, holding that the survivors' mental anguish claim is derivative. In Dawson, the court applied art. 2212a to bar recovery in a bystander's action for mental pain and anguish brought by the widow and children of the decedent who had been found 75 percent contributorily negligent. The court reasoned that, absent primary liability of the tortfeasor for the victim's death, no derivative right of recovery was available to the survivors.

We believe that the mental anguish holding in City of Denton is a tenuous, alien graft on a sturdy framework of Texas law mandating the opposite conclusion. Article 4671 creates a cause of action for "actual damages on account of the injuries causing the death...." In Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983), where the Texas Supreme Court for the first time allowed the recovery of damages for loss of companionship and mental anguish, it was not creating independent causes of action, but interpreting the Texas wrongful death statutes "in light of present social realities" and expanding "recovery beyond the antiquated and inequitable pecuniary loss rule." 651 S.W.2d at 251. Nothing in Whittlesey or Sanchez or their progeny indicates that a claim for loss of consortium/society or mental anguish should be treated any differently from pecuniary losses in the wrongful death...