Sanchez v. Schindler , 26 Tex. Sup. Ct. J. 353 ( 1983 )

SPEARS, Justice.

Eugene and Angelica Sanchez brought this wrongful death action against Charles Schindler and his parents for the death of their minor son, Johnny Sanchez, arising from a collision between Johnny’s motorcycle and Schindler’s pick-up truck. The jury found for plaintiffs on the liability issues. On the damages issues, however, they found that Mr. and Mrs. Sanchez sustained no pecuniary loss, but awarded $102,500.00 in damages for the mental anguish suffered by Mrs. Sanchez. The trial court disregarded the jury’s answers to the special issues on mental anguish. The court of appeals affirmed the trial court’s denial of recovery for mental anguish. 626 S.W.2d 871. We reverse in part and render judgment for Sanchez for the damages found for mental anguish.

Johnny Sanchez, age fourteen, was severely injured in a motorcycle-pickup truck collision in Key Allegro, Texas in 1979. Paramedics treated him on the scene and transported him to Memorial Medical Center in Corpus Christi. His parents were at home at the time of the accident, and were told of the collision by a neighbor. At the hospital, they were prevented from seeing their son, but caught glimpses of his bloody legs through the doorway. He died several hours later.

Mr. and Mrs. Sanchez brought suit for the damages they sustained, individually and as heirs of Johnny Sanchez, against Charles J. Schindler, Jr., a minor, and Charles J. and Jean Schindler, his parents. The jury awarded $50,000 for the pain and suffering endured by Johnny Sanchez prior to his death, $7,187.41 for Johnny’s medical treatment, $4,000 for funeral and burial expenses, and $450 for damages to his motorcycle. The jury found that Mr. and Mrs. Sanchez sustained no pecuniary loss resulting from their son’s death; however, they awarded $102,500 damages for the mental anguish suffered by Mrs. Sanchez. Upon defendants’ motion, the trial court disregarded the answers to the special issues on mental anguish. Angelica Sanchez has appealed, seeking the jury award of $102,500 for her injuries.

The seminal question presented is whether damages for mental anguish are recoverable under the Texas Wrongful Death Act for the death of a child. Tex.Rev.Civ.Stat. Ann. art. 4671. More specifically, we must determine whether Texas should continue to follow the pecuniary loss rule as the proper measure of damages for the death of a child.

In the past a surviving parent’s damages in an action for the death of a child under the Texas Wrongful Death Act have been limited to the pecuniary value of the child’s services and financial contributions, minus the cost of his care, support and education. The Texas statute does not expressly limit recovery to pecuniary loss. Tex.Rev.Civ. Stat.Ann. article 4671¹ creates a cause of action for “actual damages on account of the injuries causing the death .... ” Article 4677 provides that “[t]he jury may give such damages as they may think proportionate to the injury resulting from such death.” Like most states, Texas patterned its wrongful death statutes after Lord Campbell’s Act. The Fatal Accident Act, 9 & 10 Viet., ch. 93 § 1 (1846). The English court ruled that Lord Campbell’s Act limited recovery to pecuniary loss. Blake v. Midway Railway Co., 118 Eng.Rep. 35 (Q.B.1852). In March v. Walker, 48 Tex. 372, 375 (1877), this court held that since the language of the Texas Wrongful Death Act was based on Lord Campbell’s Act, the measure of damages under the Texas statute would also be restricted to pecuniary loss.

Sanchez argues the pecuniary loss rule is based on an antiquated concept of the child as an economic asset, and should be rejected. We agree. It is time for this court to revise its interpretation of the Texas Wrongful Death statutes in light of present social realities and expand recovery beyond the antiquated and inequitable pecuniary loss rule. If the rule is literally followed, the average child would have a negative worth. Selders v. Armentrout, 190 Neb. 275, 207 N.W.2d 686, 688-89 (Neb.1973); Ferguson, Damages For the Death of a Minor Child Under the Texas Wrongful Death Act, 4 St. Mary’s L.J. 157, 160 (1972). Strict adherence to the pecuniary loss rule could lead to the negligent tortfeasor being rewarded for having saved the parents the cost and expense of rearing a child. The real loss sustained by a parent is not the loss of any financial benefit to be gained from the child, but is the loss of love, advice, comfort, companionship and society. Fussner v. Andert, 261 Minn. 347, 113 N.W.2d 355, 359 (Minn.1961); Jones v. Carvell, 641 P.2d 105, 108 (Utah 1982). We, therefore, reject the pecuniary loss limitation and allow a plaintiff to recover damages for loss of companionship and society and damages for mental anguish for the death of his or her child.² In this case, Mrs. Sanchez pleaded for the recovery of damages for mental anguish, and the jury awarded her $102,500 pursuant to the special issues on mental anguish. She has preserved her argument on appeal to this court.

Schindler argues that the responsibility of changing the recovery under the Wrongful Death statute belongs to the Texas Legislature. This court originally imposed the pecuniary loss rule as a limitation of the damages recoverable under the Texas Wrongful Death Act. March v. Walker, 48 Tex. 372, 375 (1877). It is, therefore, logical for this court to now act in response to the needs of a modern society, and abolish the antiquated rule in favor of recovery of loss of society and mental anguish.

This court has always endeavored to interpret the laws of Texas to avoid inequity. As a result, the court has abolished other antiquated doctrines. See, e.g., Parker v. Highland Park, Inc., 565 S.W.2d 512, 514 (Tex.1978) (abolished no-duty rule); Davila v. Sanders, 557 S.W.2d 770, 771 (Tex.1977) (per curiam) (doctrine of imminent peril abolished); Farley v. M & M Cattle Co., 529 S.W.2d 751, 758 (Tex.1975) (abolished doctrine of assumption of the risk).

The legislature has attempted to amend the Texas Wrongful Death Act to allow damages for loss of society and mental anguish; however, none of the bills have passed. This court should not be bound by the prior legislative inaction in an area like tort law which has traditionally been developed primarily through the judicial process. Green, Protection of the Family Under Tort Law, 10 Hastings L.J. 237, 245 (1959). In his article, Dean Green stated that because the difficulties in reducing the refinements of tort law doctrines into statutory form often result in legislation which is either underinclusive or overbroad and which is frequently couched in ambiguous terms which the court must interpret, judicial decision is the best way to develop tort law. Id. at 246. Inaction of the legislature cannot be interpreted as prohibiting judicial reappraisal of the judicially created pecuniary loss rule. Bedgood v. Madelin, 600 S.W.2d 773, 780 (Tex.1980) (Spears, J., concurring). “[A] legislature legislates by legislating, not by doing nothing, not by keeping silent.” Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118, 121-22 (Mich.1960).

This court has recognized previously that injuries to the familial relationship are significant injuries and are worthy of compensation. In Whittlesey v. Miller, 572 S.W.2d 665, 668 (Tex.1978), we held that either spouse has a cause of action for loss of consortium suffered as a result of an injury to the other spouse by a tortfeasor’s negligence. We held that loss of affection, solace, comfort, companionship, society, assistance, and sexual relations were real, direct, and personal losses and said that these losses were not too intangible or conjectural to be measured in pecuniary terms. Id. at 667. A parent’s claim for damages for the loss of companionship of a child is closely analogous to the loss of consortium cause of action created in Whittlesey. In Selders v. Armentrout, 190 Neb. 275, 207 N.W.2d 686, 689 (Neb.1973), the Nebraska Supreme Court noted this analogy with loss of consortium and said, “There is no logical reason for treating an injury to the family relationship resulting from the wrongful death of a child more restrictively.”

Either by statute or judicial decision, thirty-five states allow recovery for loss of companionship and society in a wrongful death action brought by the parents. Presently, fourteen jurisdictions allow recovery for damages for loss of companionship and society under statutes containing language which traditionally had been interpreted as limiting recovery to pecuniary loss.³ Twenty one states recognize recovery for loss of society and companionship by statute.⁴ Nine of these statutes were amended to include these elements after their existing statutes were judicially interpreted to include society and companionship.⁵

Commentators are virtually unanimous in their criticism of the pecuniary loss limitation and advocate recovery for nonpecuni-ary losses. See, e.g., 2 F. Harper & F. James, The Law of Torts § 25.14, at 1331 (1956); W. Prosser, The Law of Torts § 127, at 908-09 (4th ed. 1971); Decof, Damages In Actions For Wrongful Death of Children, 47 Notre Dame Law, 197, 198 (1971); Speiser & Malawer, An American Tragedy: Damages For Mental Anguish of Bereaved Relatives In Wrongful Death Actions, 51 Tul.L.Rev. 1, 5-6 (1976); Strong & Jacobsen, Such Damages As Are Just: A Proposal For More Realistic Compensation In Wrongful Death Cases, 43 Mont.L.Rev. 55 (1982).

The jurisdictions that do not limit recovery to pecuniary loss realize that damages for loss of companionship and society of a child are not too uncertain to be measured in pecuniary terms in an attempt to redress the actual loss which a parent suffers. These elements of damage are not too speculative to be given a monetary value. Recovery is allowed in other tort areas for injuries which are equally intangible; e.g., pain and suffering. The fear of excessive verdicts is not a sufficient justification for denying recovery for loss of companionship. The judicial system has adequate safeguards to prevent recovery of damages based on sympathy or prejudice rather than fair and just compensation for the plaintiff’s injuries.

A parent’s recovery under the wrongful death statute includes the mental anguish suffered as a result of the child’s wrongful death. The 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. Wilson v. Lund, 80 Wash.2d 91, 491 P.2d 1287, 1292 (Wash.1971) (en banc). Injuries resulting from mental anguish may actually be less nebulous than pain and suffering, or injuries resulting from loss of companionship and consortium. A plaintiff should be permitted to prove the damages resulting from a tortfeasor’s negligent infliction of emotional trauma. Leong v. Takasaki, 55 Hawaii 398, 520 P.2d 758, 767 (Hawaii 1974). This includes recovery for mental anguish.

In this case Mrs. Sanchez proved she is suffering from traumatic depressive neurosis. She presented testimony that she is despondent and disoriented, has been forced to seek medical attention for her neurosis and has frequent neck and shoulder paing and headaches. Mrs. Sanchez has proved that she suffered mental anguish, and therefore, is entitled to recover the $102,500 awarded to her by the jury for her mental anguish.⁶

Presently, the courts of several states allow recovery for mental anguish under statutes similar to Texas’ statute. See, e.g., City of Tucson v. Wondergem, 105 Ariz. 429, 466 P.2d 383, 386 (Ariz.1970); Nance v. State Board of Education, 277 S.C. 64, 282 5.E.2d 848, 849 (S.C.1981); Wilson v. Lund, 80 Wash.2d 91, 491 P.2d 1287 (Wash.1971).⁷ In City of Tucson v. Wondergem, 466 P.2d at 388, the Arizona Supreme Court allowed a plaintiff to recover for mental anguish in a wrongful death action under a statute which provided “the jury shall give such damages as it deems fair and just with reference to the injury resulting from the death ... . ” The Arizona court found the denial of recovery for mental anguish deprived the survivor of material damages “resulting from the death.” Id. 466 P.2d at 386. The court noted that the Arizona Wrongful Death Act had already been interpreted to allow recovery for loss of companionship and comfort and said that these losses result in mental anguish. Id. 466 P.2d at 386.

It is within our discretion to determine whether our reinterpretation of damages under the Wrongful Death Act will be given prospective or retrospective application. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932). The general rule is that a decision of a supreme court is to be retrospective in its operation. Storrie v. Cortes, 90 Tex. 283, 38 S.W. 154 (1896). However, exceptions are recognized when considerations of fairness and policy preclude full retroactivity. Resolution of the issue turns primarily on the extent of public reliance on the former rule and the ability to foresee a coming change in the law. See In Re S/S Helena, 529 F.2d 744, 754 (5th Cir.1976); City of Farmers Branch v. Matushita Electric Corp., 537 S.W.2d 452, 454 (Tex.1976). In wrongful death cases it seems very unlikely that the negligent party would be influenced by the earlier interpretation of damages. Therefore, our holding that a plaintiff may recover under the Wrongful Death Statute for loss of society and companionship and damages for mental anguish for the death of his or her minor child applies to all future causes as well as those still in the judicial process. See Downs v. J.M. Huber Corp., 580 F.2d 794, 797 (5th Cir.1978) (held decision in Parker v. Highland Park Inc., 565 S.W.2d 512 (Tex.1978) was applicable to case tried and on appeal on date of decision); Taggert v. Taggert, 552 S.W.2d 422, 423 (Tex.1977) (decision in Cleary v. Cleary, 544 S.W.2d 661 (Tex.1976) applied to case on appeal at time of Cleary); Felderhoff v. Felderhoff, 473 S.W.2d 928, 933 (Tex.1971) (decision applied to causes of action arising since the accident in the case).

We, therefore, reverse the judgment of the court of appeals, and render judgment that Mrs. Angelica Sanchez recover $102,-500 for the mental anguish she suffered as a result of her son’s death in addition to the other damages awarded by the jury which have not been appealed.

POPE, C.J., dissents in an opinion in which McGEE and BARROW, JJ., join.

1 . All statutory references are to Texas Revised Civil Statutes Annotated.

2 . We overrule the following cases to the extent that they conflict with our present holding: J.A. Robinson Sons, Inc. v. Wigart, 431 S.W.2d 327, 334-35 (Tex.1968); Tex-Jersey Oil Corp. v. Beck, 157 Tex. 541, 549, 305 S.W.2d 162, 169 (1957); Smith v. Farrington, 117 Tex. 459, 463, 6 S.W.2d 736, 737 (1928); Francis v. Atchison, Topeka & Santa Fe Railway Co., 113 Tex. 202, 209, 253 S.W. 819, 822 (1923); Gulf, Colorado & Santa Fe Railway Co. v. Farmer, 102 Tex. 235, 239, 115 S.W. 260, 261 (1909); International & Great Northern Railroad Co. v. McVey, 99 Tex. 28, 32, 87 S.W. 328, 329 (1905); Merchants’ & Planters’ Oil Co. v. Burns, 96 Tex. 573, 581, 74 S.W. 758, 761 (1903); Galveston, Harrisburg & San Antonio Railway Co. v. Worthy, 87 Tex. 459, 465, 29 S.W. 376 (1895); San Antonio & Arkansas Pass Railway Co. v. Long, 87 Tex. 148, 156, 27 S.W. 113, 116 (1894); McGown v. International & Great Northern Railroad Co., 85 Tex. 289, 293, 20 S.W. 80, 81 (1892); Taylor, Bastrop & Houston Railway Co. v. Warner, 84 Tex. 122, 125, 19 S.W. 449, 450 (1892); Houston City Street-Railway Co. v. Sciacca, 80 Tex. 350, 355, 16 S.W. 31, 33 (1891); St. Louis, Arkansas & Texas Railroad Co. v. Johnson, 78 Tex. 536, 542, 15 S.W. 104, 106 (1890); Missouri Pacific Railway Co. v. Lehmberg, 75 Tex. 61, 67, 12 S.W. 838, 840 (1889); Missouri Pacific Railway Co. v. Henry, 75 Tex. 220, 224, 12 S.W. 828, 829 (1889); Brunswig v. White, 70 Tex. 504, 8 S.W. 85 (1888); City of Galveston v. Barbour, 62 Tex. 172, 174 (1884); International & Great Northern Railroad Co. v. Kindred, 57 Tex. 491, 498 (1882); Houston & Texas Central Railway Co. v. Cowser, 57 Tex. 293, 303 (1881); March v. Walker, 48 Tex. 372, 375 (1877).

3 . Arizona: City of Tucson v. Wondergem, 105 Ariz. 429, 466 P.2d 383, 386 (Ariz.1970); California: Krouse v. Graham, 19 Cal.3d 59, 137 Cal.Rptr. 863, 562 P.2d 1022, 1025 (1977); Idaho: Volk v. Baldazo, 103 Idaho 570, 651 P.2d 11, 14 (Idaho 1982); Illinois: Elliott v. Willis, 89 Ill.App.3d 1144, 45 Ill.Dec. 287, 412 N.E.2d 638, 641 (Ill.App.1980); Indiana: American Car Loading Corp. v. Gary Trust & Savings Bank, 216 Ind. 649, 25 N.E.2d 777, 782 (Ind.1940); Louisiana: Marceleno v. State Dept. of Highways, 367 So.2d 882, 889 (La.App.1978); Minnesota: Fussner v. Andert, 261 Minn. 347, 113 N.W.2d 355, 359 (Minn.1961); Mississippi: Bouroughs v. Oliver, 226 Miss. 609, 85 So.2d 191, 193 (Miss.1956); Montana: Swanson v. Champion International Corp., 646 P.2d 1166, 1170 (Mont.1981); Nebraska: Garwin v. Coover, 202 Neb. 582, 276 N.W.2d 225, 227 (Neb.1979); New Jersey: Green v. Bittner, 85 N.J. 1, 424 A.2d 210, 215 (N.J.1980); South Carolina: Nance v. State Board of Education, 282 S.W.2d 848, 849 (S.C.1981); South Dakota: Anderson v. Lele, 88 S.D. 11, 216 N.W.2d 152 (S.D.1974); Utah: Jones v. Carvell, 641 P.2d 105, 108 (Utah 1982).

4 . Ark.Stat.Ann. § 27-909 (1979); Fla.Stat.Ann. § 768.21 (Supp.1981); Hawaii Rev.Stat. § 663-3 (1976); Iowa Code Ann. § 633-336 (Supp.1982); Kan.Stat.Ann. § 60-1904 (1976); Ky.Rev.Stat.Ann. § 411.135 (1972); Me.Rev. Stat.Ann. tit. 18-A § 2-804 (Supp.1982); Md. Cts. & Jud.Proc.Code Ann. § 3-904(d) (1980); Mass.Ann. Laws ch. 229 § 1 (Michie/Law CoOp 1982); Mich.Comp. Laws Ann. § 600.2922 (Supp.1982); Mo.Ann.Stat. § 537.090 (Supp. 1982); Nev.Rev.Stat. § 41.090 (1979); N.C. Gen.Stat. § 28.174 (Supp.1982); Okla.Stat.Ann. tit. 12 § 1055 (West 1981); Or.Rev.Stat. § 30.-020 (1981); Vt.Stat.Ann. tit. 14 § 1492(b) (Supp.1982); Va.Code § 8.01-52 (Supp.1982); Wash.Rev.Code Ann. § 424.010 (1981); W.Va. Code § 55-7-6 (Supp.1982); Wis.Stat.Ann. § 895.05 (West Supp.1982); Wyo.Stat. § 1-38-102 (Supp.1982).

5 . Arkansas: Vines v. Arkansas Power & Light, 232 Ark. 173, 337 S.W.2d 722, 724 (Ark.1960); Florida: Lithgow v. Hamilton, 69 So.2d 776, 778 (Fla.1954); Hawaii: Ginozo v. Takai, 40 Hawaii 691 (1955); Iowa: Wardlow v. City of Keokuk, 190 N.W.2d 439, 448 (Iowa 1971); Michigan: Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118, 122 (Mich.1960); Virginia: Matthews v. Hicks, 197 Va. 112, 87 S.E.2d 629, 633 (Va.1955); Washington: Lockhart v. Besel, 71 Wash.2d 112, 426 P.2d 605, 608 (Wash.1967); West Virginia: Black v. Peerless Elite Laundry Co., 113 W.Va. 828, 169 S.E. 447, 449 (W.Va.1933); Wyoming: McPike v. Scheuerman, 398 P.2d 71, 71 (Wyo.1965).

6 . Under the Wrongful Death Act there is no requirement that the plaintiff be within the zone of danger or have witnessed the accident in order to recover for mental anguish.

7 . Additionally, eight states allow recovery for mental anguish by statute. Ark.Stat.Ann. § 27.909 (1979); Fla.Stat.Ann. § 768.21 (Supp. 1981); Kan.Stat.Ann. § 60-1904 (1976); Md. Cts. & Jud.Proc.Code Ann. § 3-904(d) (1980); Nev.Rev.Stat. § 41.090 (1979); Okla.Stat.Ann. tit. 12 § 1053 (West 1981); Va.Code § 8.01-52 (Supp. 1982); W.Va.Code § 55-7-6 (Supp. 1982).