Vaughn v. Reagan
| Decision Date | 07 December 1989 |
| Docket Number | No. C14-88-00369-CV,K-J,C14-88-00369-CV |
| Citation | 784 S.W.2d 88 |
| Parties | Lester VAUGHN, Keith J. Nichols, Individually and d/b/aacs, and Ernest Rosenovac, Individually and d/b/aacs, Appellants, v. William David REAGAN and Tressa Arnet a/n/f of Julia Reagan, Appellees. (14th Dist.) |
| Court | Texas Court of Appeals |
John P. Venzke, Houston, for appellants.
William F. Hagans, Houston, for appellees.
Before ROBERTSON, CANNON and ELLIS, JJ.
This is an appeal regarding a personal injury lawsuit. In June of 1980, William David Reagan was injured by Lester Vaughn, the manager of a Pasadena bar. Vaughn was attempting to break up a fight involving Reagan when he hit Reagan in the head with a baseball bat. Reagan suffered a severe brain injury and now functions at the level of a six- or seven-year-old child. Reagan and his minor daughter Julia sued Vaughn and Keith Nichols and Ernest Rosenovac, the owners of the bar. A jury found Vaughn, Nichols and Rosenovac 60% negligent and Reagan 40% negligent. The jury awarded damages in the amount of $2,432,000 to Reagan and $405,000 to Julia, and the trial court entered judgment for them. Vaughn, Nichols and Rosenovac appeal that judgment with twelve points of error. We find error in the award of damages to Julia Reagan, and we modify the judgment to delete those damages. We affirm the judgment as modified.
Points of error one through five complain of jury Questions 1 and 3 and are argued together. Those questions, as well as Question 2, read as follows:
QUESTION 1
Was the negligence, if any, of the Defendants a proximate cause of the injuries to David Reagan?
Answer "Yes" or "No" separately as to each.
A. Lester Vaughn Yes
B. Ernest Rozenovak Yes
C. Keith J. Nichols Yes
QUESTION 2
Was the negligence, if any, of David Reagan a proximate cause of the injuries to David Reagan?
Answer "Yes" or "No."
If you have answered "Yes" to any part of Question 1 and "Yes" to Question 2, then answer the following Question:
QUESTION 3
What percentage of the negligence that caused, in whole or in part, David Reagan's injuries, if any, do you find from a preponderance of the evidence is attributable to each of the parties? Answer only as to the person whose negligence was found by you to have been a proximate cause of David Reagan's injuries, if any. Answer by stating the percentage, if any, opposite each name. The percentages you find must total 100%. The percentage of negligence attributable to a party is not necessarily measured by the number of acts or omissions found.
A. Lester Vaughn 20%
B. Keith J. Nichols, Individually and d/b/a K"Jacs 20%
C. Ernest Rozenovak, Individually and d/b/a K"Jacs 20%
D. David Reagan 40%
TOTAL: 100%
It is obvious that Keith Nichols and Ernest Rosenovac are identified differently in Questions 1 and 3 because in Question 3 their names are followed by the words "individually and d/b/a K-Jacs." Appellants maintain that as a result of the difference in wording, the trial court erred in entering judgment against them because 1) the jury's verdict did not contain all of the essential elements of recovery; 2) the verdict as a whole did not support the entry of judgment; 3) appellees failed to file a motion to disregard the jury's answers to Questions 3B and 3C; 4) there was no evidence to support the submission of Question 3B; and 5) there was no evidence to support the submission of Question 3C. The gist of appellants' argument is that the parties found to have been negligent in Questions 1B and 1C are not the same as the parties whose percentage of fault is inquired about in Questions 3B and 3C.
Appellants' contention fails for several reasons. In the first place, appellants bore the burden of obtaining a finding on the comparative negligence issue and, consequently, of submitting the issue in substantially correct form. Estate of Clifton v. Southern Pac. Transp. Co., 709 S.W.2d 636, 638 (Tex.1986); see also Johnson v. Swain, 787 S.W.2d 36, 37 (Tex. 1989). Furthermore, appellants waived their argument by failing to object to the form of the question prior to its submission to the jury. TEX.R.CIV.P. 274.
More importantly, however, appellants fail to articulate any material difference in the questions. In their answer and general denial, Nichols and Rosenovac styled themselves as Keith J. Nichols, Individually and d/b/a K-Jacs, and Ernest Rosenovac, Individually and d/b/a K-Jacs. Stipulations made before trial referred to the parties in the same manner. Appellants also never raised any issue about the capacity in which they were sued. Finally, Question 3 was predicated on an affirmative answer to any part of Question 1 and stated the following: "Answer only as to the person whose negligence was found by you to have been a proximate cause of David Reagan's injuries, if any." We do not think the jury was confused as to the parties, and we overrule points of error one, two and three.
In points of error four and five, appellants complain there was no evidence to support the submission of Questions 3B and 3C; however, they do not address these points in their argument. Since appellants do not attack the sufficiency of the evidence regarding Questions 1 and 2, we assume they mean only that there was no evidence to support the submission of Questions 3B and 3C in the form to which appellants are now objecting. Given that we find no material difference in the questions, if there was evidence to support the submission of Questions 1 and 2, then the same was true of Question 3. Moreover, one need only look at the pleadings and stipulations to see that the form of Questions 3B and 3C was correct. Points of error four and five are overruled.
In answer to Questions 5C, 5D and 5E, the jury awarded damages to David Reagan's daughter Julia for loss of parental care, nurture and guidance and for past and future mental anguish. In points of error six through eleven, appellants argue that there was no evidence to support the submission of these questions and, further, that there was insufficient evidence to support the jury's answers. In point of error twelve, appellants assert the trial court erred in entering judgment for Julia Reagan because Texas does not recognize a cause of action in favor of a minor plaintiff for loss of parental consortium in a non-wrongful death case.
Three years ago this court (with one justice dissenting) declined to extend a right of recovery in these cases, stating that the decision to create a new cause of action was one for the legislature or the supreme court. Hughes Drilling Fluids, Inc. v. Eubanks, 729 S.W.2d 759, 762 (Tex.App.--Houston [14th Dist.] 1986), 742 S.W.2d 275 (Tex.1987) (). Since then, however, neither the legislature nor the supreme court has addressed this issue directly, and the appellate courts continue to refuse to recognize such a cause of action. Graham v. Ford Motor Co., 721 S.W.2d 554, 555 (Tex.App.--Tyler 1986, no writ); Ramos v. Champlin Petroleum Co., 750 S.W.2d 873, 878 (Tex.App.--Corpus Christi 1988, writ denied). The Fifth Circuit has considered the issue as well and, "[a]fter wading through the uncertain thicket of present-day Texas tort law," concluded that no such cause of action exists. In re Air Crash at Dallas/Fort Worth Airport on August 2, 1985, 856 F.2d 28, 29 (5th Cir.1988).
In support of the judgment, appellees argue that Texas law already provides for loss of parental consortium. They point out that at least one appellate court has held that damages to the filial relationship are compensable. Hall v. Birchfield, 718 S.W.2d 313, 338 (Tex.App.--Texarkana 1986), rev'd on other grounds, 747 S.W.2d 361 (Tex.1987). Appellees also cite several supreme court decisions as standing for the principle that the nuclear family is worthy of protection in circumstances of either death or injury. Whittlesey v. Miller, 572 S.W.2d 665 (Tex.1978); Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983); Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex.1985); Yowell v. Piper Aircraft Corp., 703 S.W.2d 630 (Tex.1986). In addition, appellees refer us to Salinas v. Fort Worth Cab & Baggage Co. and argue that in that case the supreme court appeared to recognize the right to recover for impairment of familial relationships. 725 S.W.2d 701, 704 (Tex.1987) (). Finally, appellees argue that the force of logic in cases from other states supports the trial court's judgment and that it would be unconstitutional under the open courts provision to limit recovery of parent-child consortium to death cases.
In Bennight v. Western Auto Supply Co., both the husband and daughter of the injured party sought compensation for loss of consortium. 670 S.W.2d 373 (Tex.App.--Austin 1984, writ ref'd n.r.e.). The Austin Court of Appeals held that a cause of action for loss of parental consortium was not allowed under the laws of this state and that it was not the role of an intermediate appellate court to create a new cause of action. Id. at 379-80. However, the court also stated, Id. at 379. The court noted the "obvious reality" of such injuries to the child when the parent suffers injuries of the kind sustained in Bennight. The court also noted the incongruity of allowing certain family members, but not others, to recover for substantially the...
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