Witty v. American General Capital Distributors, Inc., 01-84-0667-CV

• Citation: 697 S.W.2d 636
• Decision Date: 03 July 1985
• Docket Number: No. 01-84-0667-CV,01-84-0667-CV
• Parties: Kimberly WITTY, Individually and as Surviving Parent of Baby Witty, a Nonborn Child, Appellant, v. AMERICAN GENERAL CAPITAL DISTRIBUTORS, INC., Appellee. (1st Dist.)
• Court: Court of Appeals of Texas

Page 636

697 S.W.2d 636

Kimberly WITTY, Individually and as Surviving Parent of Baby

Witty, a Nonborn Child, Appellant, v. AMERICAN GENERAL CAPITAL DISTRIBUTORS, INC., Appellee.

No. 01-84-0667-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

July 3, 1985.

Rehearing Denied Aug. 22, 1985.

Jeffery M. Stern, Michael W. Melton, Houston, for appellant.

Michael G. Terry, Vinson & Elkins, Houston, for appellee.

Before EVANS, C.J., and COHEN and DUNN, JJ.

OPINION

EVANS, Chief Justice.

The plaintiff, Kimberly Witty, appeals from a take-nothing summary judgment entered in favor of the defendant, American General Capital Distributors, Inc. The judgment is reversed and the cause is remanded.

The plaintiff sued individually, and also as surviving parent of her deceased unborn child, alleging that her baby had been fatally injured as a result of the defendant's negligence. She alleged that while employed by the defendant as a receptionist, she tripped over a utility outlet and fell with such force that her unborn baby was fatally injured. She asserted that the defendant was negligent in various particulars, and that as a direct and proximate result of the occurrence: (1) her baby was bruised and suffered great shock to its nervous system, as well as physical pain and mental anguish, (2) she was deprived of her baby's support, companionship, society, affection, and comfort, (3) she suffered severe emotional trauma and mental anguish because of her uncertainty about the baby's fate until its body was surgically removed from her womb nine days after the accident, and (4) alternatively, that she sustained property damage because of the destruction of her fetus.

As the baby's surviving parent, Mrs. Witty sought $1 million for her child's prenatal injuries and other damages relating to its death; and in her individual capacity, she sought an additional $1 million as damages for the loss of her baby's support and companionship; $500,000 as damages for her own emotional trauma and mental anguish, which she allegedly suffered during and after the nine-day period following the accident; and $500,000 as property damages for the loss of her fetus.

The motion for summary judgment set forth two legal theories of defense, in which the defendant contended:

(1) That Mrs. Witty was barred from asserting a claim against the defendant, her employer, under article 8306, section 3a, of the Texas Workers' Compensation Act. Mrs. Witty had made a claim for and had received worker's compensation payments of $546 for wages lost during a three-week period after the accident;

(2) That the deposition testimony of the physician who surgically removed Mrs. Witty's dead baby from her womb established that the fetus was not alive at the time of such separation, and therefore, Mrs. Witty's petition did not state a valid cause of action.

The summary judgment recites that Mrs. Witty, individually and as next friend of her unborn child, was entitled to take nothing against the defendant, but it does not specifically refer to either of the grounds set forth in the defendant's motion.

The trial court correctly determined that because the child was not born alive, Mrs. Witty was not entitled to recover damages, in her capacity as representative of the estate of her deceased child, for the child's physical pain and suffering or for other damages relating to the child's death. Although these damages ordinarily would be recoverable by the representative of a deceased child's estate under the Texas Survival Statute, Tex.Rev.Civ.Stat.Ann. art. 5525 (Vernon 1958), the Texas Supreme Court so far has not recognized an action to recover such damages unless the child is born alive. See Yandell v. Delgado, 471 S.W.2d 569 (Tex.1971). In Yandell, the supreme court by per curiam opinion approved the holding of the Fort Worth Court of Civil Appeals, stating:

We hold that subject, of course, to the proof required in such cases a cause of action does exist for prenatal injuries sustained at any prenatal stage provided the child is born alive and survives.

471 S.W.2d at 570 (emphasis supplied).

Mrs. Witty contends that the supreme court's decision in Yandell is not squarely on point with the facts here and that this is a case of first impression. She urges that we seize the initiative and give legal recognition to the claims she asserts on behalf of her baby's estate.

An intermediate court is obliged to follow the Texas Supreme Court's authoritative expressions of the law and to leave any changes in the law to that court. Swilley v. McCain, 374 S.W.2d 871, 875 (Tex.1964); see also Leal v. C.C. Pitts Sand and Gravel, Inc., 413 S.W.2d 825, 827 (Tex.Civ.App.--San Antonio), rev'd on other grounds, 419 S.W.2d 820 (Tex.1967); Stephenson v. Perlitz, 524 S.W.2d 786, 788-89 (Tex.Civ.App.--Beaumont 1975), rev'd on other grounds, 532 S.W.2d 954 (Tex.1976); Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.2d 93, 99 (Tex.Civ.App.--Amarillo 1971, writ ref'd n.r.e.).

It is accordingly this court's duty to recognize and apply the supreme court's deliberate statement of the law and, by exercising judicial self-restraint, to refrain from extending or restricting the scope of the supreme court's declaration. See Watson v. Zep Manufacturing Co., 582 S.W.2d 178, 180 (Tex.Civ.App.--Dallas 1979, writ ref'd n.r.e.). This court therefore adopts, as the law of this case, the decision of the Texas Supreme Court in Yandell, which recognizes a cause of action brought on behalf of a child for prenatal injuries, provided the child is born alive.

Yandell does not preclude Mrs. Witty's causes of action, in her individual capacity, at common law and under the Wrongful Death Statute. In her petition, Mrs. Witty alleged individual causes of action at common law and under the Wrongful Death Statute, independently of the claim asserted by her as representative of her deceased child's estate, for damages allegedly sustained because of her emotional distress during the nine-day period following the accident, and because of the loss of her baby's society and companionship, and for the mental anguish she suffered.

Since the Texas Supreme Court's decision in Hill v. Kimball, 76 Tex. 210, 13 S.W. 59 (1890), and with increased frequency in recent years, our courts have recognized a common law cause of action for emotional distress based upon a plaintiff's "contemporaneous perception" of an injury either intentionally or negligently inflicted upon another. See Dave Snelling Lincoln-Mercury v. Simon, 508 S.W.2d 923 (Tex.Civ.App.--Houston [1st Dist.] 1974, no writ); Landreth v. Reed, 570 S.W.2d 486 (Tex.Civ.App.--Texarkana 1978, no writ); Covington v. Estate of Foster, 584 S.W.2d 726 (Tex.Civ.App.--Waco 1979, writ ref'd n.r.e.); Bedgood v. Madalin, 589 S.W.2d 797 (Tex.Civ.App.--Corpus Christi 1979), rev'd on other grounds, 600 S.W.2d 773 (Tex.1980); Newman v. Minyard Food Stores, Inc., 601 S.W.2d 754 (Tex.Civ.App.--Dallas), writ ref'd per curiam, 612 S.W.2d 198 (Tex.1980); Apache Ready Mix Co. v. Creed, 653 S.W.2d 79 (Tex.App.--San Antonio 1983, no writ); Dawson v. Garcia, 666 S.W.2d 254 (Tex.App.--Dallas 1984, no writ). This theory of recovery has been applied in a case of prenatal injury to an unborn child. Haught v. Maceluch, 681 F.2d 291 (5th Cir.1982).

A statutory cause of action is also recognized under the Texas Wrongful Death Statute, Tex.Rev.Civ.Stat.Ann. art. 4671 et seq. (Vernon Supp.1985), which allows damages for loss of a minor child's society and companionship and for mental anguish. See Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983); City of Houston v. Stoddard, 675 S.W.2d 280, 285 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.). The Wrongful Death Statute does require that the wrongful occurrence be of such a character as would have entitled the injured party to maintain an action had death not ensued. Tex.Rev.Civ.Stat.Ann. art. 4672 (Vernon Supp.1985); Leal v. C.C. Pitts Sand and Gravel Co., 419 S.W.2d at 821. But this requirement speaks to the character of the wrongful occurrence, see Schwing v. Bluebonnet Express, Inc., 489 S.W.2d 279, 280 (Tex.1973), not to the status of the injured party. The Wrongful Death Statute creates a statutory cause of action for designated beneficiaries of the injured party. Therefore, Mrs. Witty's claim, in her individual capacity, under the statute was not dependent upon a showing that the child was born alive, but rather on whether the act that caused the injury was wrongful and would have given Mrs. Witty's child the right to sue if it had survived those injuries. ¹

Mrs. Witty's petition sufficiently alleges a viable claim at common law, based on the emotional distress she allegedly suffered as a result of her perception of her child's injury following the accident, and also a viable claim under the Wrongful Death Statute for mental anguish and for the loss of her baby's society and companionship.

The defendant's motion for summary judgment also alleges that Mrs. Witty's claims are barred by the Workers' Compensation Act, Tex.Rev.Civ.Stat.Ann. art. 8306, sec. 3(a) (Vernon Supp.1985), which provides in pertinent part:

The employees of a subscriber ... shall have no right of action against their employer ... for damages for personal injuries....

Mrs. Witty's petition and her response to the defendant's request for admissions conclusively show that she was injured while working in the regular course of her employment for the defendant at its offices, and that she filed a claim and received worker's compensation benefits in the amount of $546.00, representing lost wages for three weeks following the accident in June and July 1983.

Because the summary judgment record does not affirmatively show that the defendant is a subscriber under the Workers' Compensation Act, it is questionable whether its status as a covered employer is the only inference that may be drawn from the summary judgment proof. See Puga v. Donna Fruit Co., 634...