Russell v. Ingersoll-Rand Co.

• Citation: 841 S.W.2d 343
• Decision Date: 14 October 1992
• Docket Number: No. D-0489,INGERSOLL-RAND,D-0489
• Parties: , Prod.Liab.Rep. (CCH) P 13,345 Betty Parr RUSSELL, Individually and as Independent Executrix of the Estate of Donnon O'Neal Russell, Deceased, et al., Petitioners, v.COMPANY, et al., Respondents.
• Court: Supreme Court of Texas

Page 343

841 S.W.2d 343

61 USLW 2265, Prod.Liab.Rep. (CCH) P 13,345

Betty Parr RUSSELL, Individually and as Independent Executrix of the Estate of Donnon O'Neal Russell, Deceased, et al., Petitioners, v. INGERSOLL-RAND COMPANY, et al., Respondents.

No. D-0489.

Supreme Court of Texas.

Oct. 14, 1992.

Rehearing Overruled Dec. 9, 1992.

Michael Y. Saunders, John W. Tavormina, Carl D. Kulhanek, Jr., Richard P. Hogan, Jr., Helm, Pletcher, Hogan, Bowen & Saunders, Houston, for petitioners.

Max E. Roesch, Thomas B. Taylor, Taylor & Eggleston, Laurie B. Easter, Hutcheson & Grundy, Houston, Gordon R. Pate, Karen L. Spivey, Pate & Dodson, Beaumont, William S. Rhea, IV, Robert F. Maher, Maureen McPherson Spector, Crain, Caton & James, Houston, P. Michael Jung, Strasburger & Price, Dallas, Edward J. Mahar, Michael Phillips & Associates, Robert L. Adams, Willard M. Tinsley, Dunn, Kacal, Adams, Pappas & Law, Houston, for respondents.

OPINION

HECHT, Justice.

If an individual's action for personal injuries would have been barred by limitations at the time of his death, are actions based upon the same wrongful conduct, brought by his heirs, legal representatives or estate under the Survival Statute, TEX.CIV.PRAC. & REM.CODE § 71.021, and by his beneficiaries under the Wrongful Death Statute, TEX.CIV.PRAC. & REM.CODE §§ 71.001-.011, also barred by limitations? Both the district court and the court of appeals answered this question affirmatively. 795 S.W.2d 243. We agree.

I

In 1981, Donnon Russell was diagnosed as suffering from chronic obstructive pulmonary disease caused by exposure to silica during his employment for many years as a sandblaster and painter. In 1982, Russell filed suit to recover damages for his injuries. In amended pleadings, Russell named a total of 14 defendants who he alleged manufactured and distributed products containing silica that he had used in his work. In 1988, before the case could come to trial, Russell died. Five weeks later, Russell's widow and four children ¹ filed an amended petition naming themselves as plaintiffs and claiming damages on behalf of Russell's estate and for his death. Plaintiffs also added seven defendants whom Russell had never sued himself, who are respondents in this Court. ²

Respondents moved for summary judgment on the ground that plaintiffs' claims against them are barred by limitations. In their last amended petition in the trial court plaintiffs asserted claims based on strict liability, negligence, gross negligence, misrepresentation, and breach of warranty. Respondents argue that the causes of action against them accrued either in 1981 when Russell's condition was first diagnosed, or no later than 1982 when he filed suit. Had Russell sued respondents immediately before his death, his claims would have been barred by limitations. ³ Respondents contend that plaintiffs' actions are derivative of Russell's and are therefore likewise barred.

Plaintiffs argue that while their actions are in some sense derivative of Russell's, the sole statute of limitations applicable to their claims under the survival and wrongful death statutes is TEX.CIV.PRAC. & REM.CODE § 16.003(b), which states: "A person must bring suit not later than two years after the day the cause of action accrues in an action for injury resulting in death. The cause of action accrues on the death of the injured person." Based upon this statute, plaintiffs argue that they had two years from Russell's death to file their claims, even if Russell's own claims for the same injury would have been barred at the time he died.

The district court granted summary judgment for respondents and severed it from plaintiffs' claims against the defendants which Russell timely sued. The court of appeals affirmed. 795 S.W.2d 243.

II

At common law, an individual's action for personal injuries did not survive his death. Rose v. Doctors Hosp., 801 S.W.2d 841, 845 (Tex.1990); Landers v. B.F. Goodrich Co., 369 S.W.2d 33, 35 (Tex.1963). The Legislature has abrogated this rule by TEX.CIV.PRAC. & REM.CODE § 71.021, which states:

Survival of Cause of Action

(a) A cause of action for personal injury to the health, reputation, or person of an injured person does not abate because of the death of the injured person or because of the death of a person liable for the injury.

(b) A personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person. The action survives against the liable person and the person's legal representatives.

(c) The suit may be instituted and prosecuted as if the liable person were alive.

By this statute, a decedent's action survives his death and may be prosecuted in his behalf. The survival action, as it is sometimes called, is wholly derivative of the decedent's rights. The actionable wrong is that which the decedent suffered before his death. The damages recoverable are those which he himself sustained while he was alive and not any damages claimed independently by the survival action plaintiffs (except that funeral expenses may also be recovered if they were not awarded in a wrongful death action). Landers, 369 S.W.2d at 35. Any recovery obtained flows to those who would have received it had he obtained it immediately prior to his death--that is, his heirs, legal representatives and estate. Id. Defenses that could have been raised against a claim by the injured person may also be raised against the same claim asserted by the person's heirs and estate. See Castleberry v. Goolsby Bldg. Corp., 617 S.W.2d 665 (Tex.1981).

It follows from these general principles that if a decedent's action would have been barred by limitations had it been asserted immediately prior to his death, a survival action based upon the same alleged wrong is likewise barred. If the decedent's action would not have been barred, the running of the limitations period is tolled by the decedent's death for up to one year. TEX.CIV.PRAC. & REM.CODE § 16.062. ⁴ Had Russell sued respondents immediately prior to his death, alleging the same causes of action plaintiffs now assert in their survival action, those actions would have been barred by limitations. Accordingly, we hold that plaintiffs' survival action against respondents is likewise barred by limitations.

III

Wrongful death actions are also derivative of the decedent's rights. Such actions are creatures of statute abrogating the common law rule that no cause of action may be brought for the death of another person. Rose v. Doctors Hosp., 801 S.W.2d at 845; Farmers & Mechanics' Nat'l Bank v. Hanks, 104 Tex. 320, 137 S.W. 1120, 1122 (1911). As initially passed, our Wrongful Death Statute provided in part:

Sec. 1. [W]hensoever the death of any person may be caused by wrongful act, neglect, unskilfulness or default, and the act, neglect, unskilfulness or default is such as would (if death had not ensued) have entitled the party, injured, to maintain an action for such injury, then and in every such case the person who would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured....

. . . . .

Sec. 3. The action shall be brought within one year after the death of such deceased.

Act approved Feb. 2, 1860, 8th Leg., R.S., ch. 35, § 1, 1860 Tex.Gen.Laws 32, 4 H. GAMMEL, LAWS OF TEXAS 1394 (1898). Sections 1 and 3 were amended and separated in 1879. Section 1 was changed to read in part: "The wrongful act, negligence, carelessness, unskillfulness or default mentioned ... must be of such character as would, if death had not ensued, have entitled the party injured to maintain an action for such injury." Tex.Rev.Civ.Stat. art. 2900 (1879). Section 3 was moved from the wrongful death provisions to a general limitations provision which prescribed that certain actions be brought within one year, including: "Actions for injuries done to the person of another where death ensued from such injuries". Tex.Rev.Civ.Stat. art. 3202(4) (1879). The 1879 provision added: "the cause of action shall be considered as having accrued at the death of the party injured." Id. In 1897, the limitations period was changed from one to two years. Act approved Mar. 4, 1897, 25th Leg., R.S., ch. 14, 1897 Tex.Gen.Laws 12, 12; 10 H. GAMMEL, LAWS OF TEXAS 1066, 1066 (1898). The language establishing the cause of action remained in substantially the same form, becoming article 4672 of the Texas Revised Civil Statutes of 1925, and in 1985, section 71.003(a) of the Texas Civil Practice and Remedies Code, Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex.Gen.Laws 3242, 3296, which is in effect today. The two-year limitations period has also remained constant, and is now codified at Tex.Civ.Prac. & Rem.Code § 16.003(b).

Currently, the Wrongful Death Statute allows an action by a decedent's beneficiaries "only if the individual injured would have been entitled to bring an action for the injury if he had lived." TEX.CIV.PRAC. & REM.CODE § 71.003(a). As can be seen from the history of the statute recited above, this language is not a recent innovation but merely a recodification of language which has always been part of the Wrongful Death Statute. ⁵ From the earlier language, it could have been argued, and in fact was, that a wrong "such as would (if death had not ensued) have entitled the party, injured, to maintain an action for such injury then" meant only a wrong of an actionable nature, not one for which the injured party could actually have succeeded in recovering damages. In other words, the earlier language may be read to allow a decedent's beneficiaries to recover for a wrong which caused his death, even if he could not have recovered himself, as long as it was "such as would" have allowed action--that is, the type of wrong for which he could have recovered. We long ago rejected this argument that the statute did not condition allowance of a wrongful death action upon the...