Missouri Pacific R. Co. v. Vlach

• Decision Date: 07 February 1985
• Docket Number: No. A14-84-396CV,A14-84-396CV
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. Victoria VLACH, Ind. & a/n/f of Victoria Ann Vlach, et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 414

687 S.W.2d 414

MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. Victoria VLACH, Ind. & a/n/f of Victoria Ann Vlach, et al., Appellees.

No. A14-84-396CV.

Court of Appeals of Texas Houston (14th Dist.).

Feb. 7, 1985.

Rehearing Denied March 14, 1985.

Gordon A. Holloway, Sewell & Riggs, Houston, for appellant.

William Mac Gann, Gann, Fried & Edwards, Travis Johnson, Robert D. Roll, Martin & Sperry, Houston, for appellees.

Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.

OPINION

J. CURTISS BROWN, Chief Justice.

Appellees, the wife and six children of the deceased Terence Paul Vlach, brought suit under the Wrongful Death Statute, TEX.REV.CIV.STAT.ANN. art. 4671 (Vernon Supp.1984) and the Survival Statute, TEX.REV.CIV.STAT.ANN. art. 5525 (Vernon 1958) against Missouri Pacific Railroad Co., appellant.

On December 6, 1977, appellant's train struck Terence Vlach when he drove his truck into the crossing. He was hospitalized until he died on January 9, 1978. The jury found that the negligence of both appellant and Terence Vlach proximately caused Vlach's death. The jury attributed 50% negligence to each. The trial court granted to each appellee 50% of the damages found by the jury for:

1) care, maintenance, support, services and contributions of pecuniary value that appellee would in reasonable probability have received from Terence Paul Vlach during his lifetime had he lived.

2) loss of love, advice, comfort, companionship and society that appellee has suffered since the death of Terence Paul Vlach, and which appellee will, in all reasonable probability suffer in the future.

3) grief, sorrow, emotional trauma and mental anguish which appellee has suffered in the past, as a proximate result of the death of Terence Paul Vlach and which appellee will, in all reasonable probability, suffer in the future.

The spouse was awarded 50% of the damages (in lieu of the second category stated above) for the:

loss of love, affection, solace, comfort, companionship, society, assistance and sexual relations that she has suffered since the death of her husband and which she will, in all reasonable probability, suffer in the future.

The trial court also awarded $10,000 for the conscious pain and mental anguish suffered by the deceased.

Appellant raises issues concerning: 1) the nature of damages which may be recovered by the spouse and children of the deceased under the Wrongful Death Act; 2) the kind of evidence required to recover damages for mental anguish under the Act; 3) whether prior consistent statements of witnesses were properly excluded by the trial court because the witnesses were unavailable for cross-examination. TEX.R.EVID. 801(e)(1)(B); 4) whether the evidence is sufficient to support the jury's finding that Mr. Vlach suffered conscious physical pain and mental anguish before his death; and 5) whether the trial court erred in submitting the issue of negligence broadly because of a variance between the pleadings and evidence. TEX.R.CIV.P. 277. We find no error and accordingly affirm the judgment of the trial court.

Appellant contends in its second, fourth, fifth, and sixth points of error that the trial court erred in awarding appellees non-pecuniary damages. In Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983) the Supreme Court held that the plaintiff may recover damages for loss of society and companionship and for mental anguish for the death of his or her minor child. Appellant asserts that the Supreme Court purposely limited the kind of non-pecuniary damages that can be recovered under the statute and held that only one class of beneficiaries could recover such damages.

For the reasons stated in Cavnar v. Quality Parking Control, Inc., 678 S.W.2d 548 (Tex.App.--Houston [14th Dist.] 1984, writ granted), we disagree. We concluded in Cavnar that every class of beneficiary under the statute can recover for emotional injury. We held that the trial court erred by refusing to grant the adult children of the deceased damages for loss of society and companionship.

We further conclude that the Supreme Court also intended to allow recovery by a spouse for the loss of consortium as established in Whittlesey v. Miller, 572 S.W.2d 665 (Tex.1978). This intention is evidenced by the court's use of loss of consortium as an analogy in Sanchez, 651 S.W.2d at 252, to establish the parent's right to damages for the loss of companionship of a child. The correctness of our interpretation is supported by Missouri Pacific Railroad Co. v. Dawson, 662 S.W.2d 740 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.) wherein this element of damages was allowed.

All the damages awarded appellees are recoverable under the Wrongful Death Statute and points of error two, four, five, and six are overruled.

Appellant contends in its third point of error that the trial court erred in submitting special issues on mental anguish because there is no evidence to support their submission. Appellant failed to brief and argue this point. It is well settled that points of error are required to be supported by argument and authority under Rule 418(e) of the Texas Rules of Civil Procedure, and if not supported, the points are waived. Ozuna v. Dyer Fruit Box Manufacturing Co., 606 S.W.2d 334, 337 (Tex.Civ.App.--Tyler 1980, no writ); Burgess v. Sylvester, 143 Tex. 25, 182 S.W.2d 358, 360 (1944).

Appellant contends in its seventh point of error that the trial court erred in including damages for loss of advice as part of the recovery for loss of society and companionship damages. Appellant contends that loss of advice has historically been classified as one of the elements of pecuniary damages. Lee v. Andrews, 545 S.W.2d 238 (Tex.Civ.App.--Amarillo 1976, writ dism'd); J.A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728 (Tex.Civ.App.--Amarillo 1967, writ ref'd n.r.e.). Thus, to permit recovery of loss of advice as an element of loss of society and companionship damages would result in a double recovery. The pecuniary loss issues submitted to the jury did not include loss of advice as an element. Loss of advice was referred to only in the damage issues concerning loss of society and companionship. Thus, there was no danger of double recovery. Point of error seven is overruled.

Appellant contends in its first point that the trial court erred in awarding appellees damages for mental anguish because there is no proof of accompanying physical injury. Appellant argues that while Sanchez allowed a mother to recover mental anguish damages for the death of her child, it did not abrogate requirement of accompanying physical injury. We disagree. We do not find in that case a requirement that proof...