Moore v. Lillebo

• Decision Date: 09 July 1986
• Docket Number: No. C-3508,C-3508
• Citation: 722 S.W.2d 683
• Parties: Fred S. MOORE et al., Petitioners, v. Douglas Stephen LILLEBO, Respondent.
• Court: Texas Supreme Court

Page 683

722 S.W.2d 683

Fred S. MOORE et al., Petitioners, v. Douglas Stephen LILLEBO, Respondent.

No. C-3508.

Supreme Court of Texas.

July 9, 1986.

Rehearing Denied Feb. 11, 1987.

Malcolm McGregor, El Paso, for petitioners.

Sam Sparks, Grambling, Mounce, Sims, Galatzan & Harris, El Paso, for respondent.

CAMPBELL, Justice.

Fred Moore and Martha Theaker sued Douglas Stephen Lillebo for the wrongful death of their adult son, Paul Moore. Lillebo allegedly fell asleep while driving his car. An accident occurred and Paul, a passenger in Lillebo's car, was killed. The jury found Lillebo 60% negligent and awarded $2,500 in pecuniary damages to Moore and $4,000 in pecuniary damages to Theaker.

Moore and Theaker each requested a single issue which asked the jury to determine damages, if any, for loss of companionship and society, and for mental anguish resulting from Paul's death. The trial judge refused to submit the issues. On appeal, Moore and Theaker contended the trial judge improperly refused to submit their issues. The court of appeals held there was evidence of loss of companionship and society as to each party but concluded there was no evidence the parties suffered mental anguish as a result of Paul's death. Therefore, the court held it was not error to refuse to submit the requested issues. 674 S.W.2d 474. We reverse the judgment of the court of appeals and remand this cause for a new trial.

In 1983, this court rejected the pecuniary loss rule in response to the "seminal question" of "whether damages for mental anguish are recoverable under the Texas Wrongful Death Act for the death of a child." Sanchez v. Schindler, 651 S.W.2d 249, 250 (Tex.1983). We recognized in that case, as before, that "injuries to the familial relationship are significant injuries and are worthy of compensation." Id. at 252; Whittlesey v. Miller, 572 S.W.2d 665, 668 (Tex.1978). Then, as now, we observed that a "destruction of the parent-child relationship results in mental anguish, and it would be unrealistic to separate injury to the familial relationship from emotional injury." Sanchez, 651 S.W.2d at 253. When such emotional injuries are alleged, a plaintiff should be permitted to prove them, including recovery for mental anguish. Id.

Sanchez involved a parent's claim for mental anguish for the loss of a minor child. In Cavnar v. Quality Control Parking, Inc., we expanded the scope of permitted recovery for mental anguish damages to include all family members listed in the wrongful death act. 696 S.W.2d 549 (Tex.1985). In the face of a contention that children should not be allowed to recover mental anguish damages, we said "there is no logical reason to treat an injury to the familial relationship resulting from the wrongful death of any family member ... differently than an injury to such relationship resulting from the wrongful death of a child." Id. at 551.

Generally, before awarding mental anguish damages, the majority of states, ¹ including Texas, requires proof of a physical injury resulting from mental anguish, or a physical manifestation of mental anguish. See Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171, 175 n. 5 (1982); Harned v. E-Z Finance Co., 151 Tex. 641, 254 S.W.2d These exceptions have involved cases of intentional torts, gross negligence, or a willful and wanton disregard for another's rights. See, e.g., Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 939 (Tex.1980) (rule stated). Thus, we have allowed an award of mental anguish damages for wrongful dishonor of checks upon a showing of malicious intent. Farmers & Merchants State Bank of Krum v. Ferguson, 617 S.W.2d 918, 921 (Tex.1981). We held damages for mental anguish recoverable for a willful and unwarranted invasion of privacy in Billings v. Atkinson, 489 S.W.2d 858, 861 (Tex.1973). And, in a case of assault and battery, we approved mental anguish damages without forcing the plaintiff to demonstrate any resulting physical injury. Fisher, 424 S.W.2d at 630.

81 (1953). In some cases, however, we have recognized exceptions to this general rule. See Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 630 (Tex.1967).

Other exceptions exist. Quite often, the nature of the tort alleged assures courts of the genuineness of mental anguish claims, even without resort to proof of physical manifestation. In Stuart v. Western Union Telegraph Co., we allowed recovery for mental anguish damages for a negligently delivered death message. 66 Tex. 580, 18 S.W. 351 (1885); see also, Western Union Telegraph Co. v. Buchanan, 129 S.W. 850 (Tex.Civ.App.--San Antonio 1910, no writ). In Classen v. Benfer, the court of appeals allowed recovery for mental anguish damages after the mishandling of a corpse. 144 S.W.2d 633, 635 (Tex.Civ.App.--San Antonio 1940, writ dism'd, jdgmt correct). These cases create an exception to the general rule. The nature of the torts assures that the claimants will suffer mental injury. There is no need to require proof of physical manifestation of the mental injury.

Our decisions allowing mental anguish recovery without proof of physical manifestation recognize that mental anguish inheres in the nature of certain torts, and therefore, proof of physical injury is not required. Thus, in Billings, we wrote:

damages for mental suffering are recoverable without the necessity of showing actual physical injury in a case of willful invasion of the right of privacy because the injury is essentially mental and subjective, not actual harm done to the plaintiff's body.

489 S.W.2d at 861. Similarly, in Fisher we applied the same rule because "personal indignity is the essence of an action for battery; and consequently the defendant is liable not only for contacts which do actual physical harm, but also for those which are offensive and insulting." 424 S.W.2d at 630. Each of these decisions rejected arguments that proof of physical injury should be required. This is because torts inherently involving mental anguish claims demand proof of mental anguish, not physical pain.

Our question is whether the mental anguish already recognized as an element of wrongful death damages must be proved by physical manifestation. Moore and Theaker contend that a family relationship establishes some evidence of mental anguish in the surviving family members when one of the family dies. We agree.

This court has recognized that, in a wrongful death case, an emotional reaction on the part of a parent is a natural by-product of injury to the familial relationship. Sanchez, 651 S.W.2d at 252-53; Note, 15 St. Mary's L.J. 185, 194 (1983). All wrongful death actions are predicated on the proposition that a wrongful death necessarily destroys any pre-existing family relationship. In most death cases, the emotional impact of the loss of a beloved person "is the most significant damage suffered by surviving relatives." S. Speiser and S. Malawer, An American Tragedy: Damages for Mental Anguish of Bereaved Relatives in Wrongful Death Actions, 51 Tulane L.Rev. 1, 17 (1976).

Wrongful death cases present another circumstance where the genuineness of a mental anguish claim obviates the physical manifestation requirement. Like the battery in Fisher and the willful invasion of privacy in Billings, the injury in a The physical manifestation rule has been expanded to include many symptoms. "Courts have gone to great lengths in order to find a physical injury." Comment, Texas Bystander Recovery: In the Aftermath of Sanchez v. Schindler, 35 Baylor L.Rev. 896, 901 (1983). All manner of symptoms have qualified as physical manifestations: nervousness, fatigue, weakened muscles, severe headaches, memory lapses, and "brain deterioration." Houston Electric Co. v. Dorsett, 145 Tex. 95, 194 S.W.2d 546 (1946). See also, e.g. Gulf, C. & S.F. Ry Co. v. Hayter, 93 Tex. 239, 54 S.W. 944 (1900). Such a wide-ranging meaning has attached to "physical manifestation," that the term has lost much of its former significance; even "embarrassment" and "humiliation" have sufficed in other jurisdictions. See R. Byrd, Recovery for Mental Anguish in North Carolina, 58 N.C. L.Rev. 435, 456 (1980).

wrongful death case is largely emotional. The substance of the recovery sought is for emotional damage to the family unit and its surviving members rather than for physical injuries; thus, the proof should consist of evidence of mental anguish rather than of physical pain. We hold, in a wrongful death cause of action, it is no longer necessary to prove that mental anguish is physically manifested. A physical manifestation of mental anguish is evidence of the extent or nature of the mental anguish suffered, but it is no longer the only proof of mental anguish.

Up to now, identically situated plaintiffs in wrongful death actions would face different standards. The wrongful death survivors of a person killed by an ordinarily negligent tortfeasor had to prove physical manifestation to recover for mental anguish. This was true no matter how loving and closely-knit the family. However, the wrongful death survivors of a person killed by a grossly negligent tortfeasor could recover for mental anguish without proof of physical manifestation. This was true no matter how hateful or openly hostile the family members. Identically situated plaintiffs should face the same standard of proof.

Proof of Moore and Theaker's family relationship constitutes some evidence they suffered mental anguish from the wrongful death of their son. The evidence mandates submission of a damage issue on mental anguish. Tex.R.Civ.P. 277. The court of appeals held there was no evidence of mental anguish because there was no testimony concerning how Moore or Theaker learned of their son's death, whether they attended the funeral, or what effect the loss of a child had on their lives. However, we agree with the reasoning of the Eighth Circuit in Connell v. Steel Haulers, Inc., 455 F.2d 688 (8th Cir.1972). In interpreting Arkansas law, ...