The first of two issues involved in this case is whether exemplary damages may be recovered from the estate of a tortfeasor. Incidental to that inquiry is whether under Tex.Rev.Stat.Ann. art. 5525 (statute providing for survival of causes of action for personal injuries), exemplary damages may be recovered by persons other than those named in Tex. Const. art. XVI, § 26. J.D. Hofer, and his wife, Joan Hofer, brought suit against Sharon Lavender, personal representative of the estate of Robert W. Springate, deceased, in which, among other things, the Hofers sought exemplary damages for themselves, individually,
June Hofer, age eighteen, while driving a vehicle, with her parents as passengers, was struck by a vehicle driven by Robert W. Springate. Tests administered shortly after the accident indicated that Springate had a 0.27% blood alcohol content. June Hofer survived the accident but a few hours. Springate died of unrelated causes before the case came to trial. In answer to special issues, the jury found Springate to have been guilty of gross negligence and awarded J.D. Hofer and Joan Hofer $100,000 each in exemplary damages. The jury likewise awarded the estate of June Hofer $200,000 in exemplary damages. Although the Hofers had pleaded for damages under Tex.Rev.Civ.Stat.Ann. art. 4671 (Texas Wrongful Death Act), there is no contention that the exemplary damages awarded to J.D. Hofer and Joan Hofer, individually, were done so pursuant to that statute. No objection to the charge was made in this respect and there has been no complaint as to excessiveness of those exemplary damages. We will, therefore, conclude that such damages were awarded to the Hofers as individuals, and are supported by actual damages awarded to the Hofers on account of their own personal injuries sustained in the accident.
The trial court defined "exemplary damages" in respect to the pertinent special issues as follows:
The Hofers contend that under the Texas Survival Statute, all causes of action survive, both in behalf of the estate of the deceased and against the estate of the tortfeasor. The Hofers additionally assert that the constitutional designation of who may recover exemplary damages applies to wrongful death actions, only, and was not meant to preclude recovery under the survival statute. Ms. Lavender contends that as the purpose of punitive damages is punishment, and as a deceased may no longer be punished on this earth, there is no longer a basis for awarding such damages. While neither the word "punitive" nor a discussion of its purpose are contained in the court's charge, no objection was made as to the instruction other than the one that punitive damages cannot be recovered against the estate of a deceased. Nevertheless, we consider that objection sufficient to have preserved error, if any. Ms. Lavender further maintains that in any event, the estate of June Hofer is not entitled to recover exemplary damages because parents are not included among the constitutional list of those entitled to recover. While supporting Ms. Lavender's position on the first contention, the court of appeals concluded that but for the death of Springate, the constitutional provision would not have barred recovery of exemplary damages by the estate of June Hofer.
At common law all causes of action died with the person of the party injured or the person inflicting the injury, except damages to property. Johnson v. Rolls, 97 Tex. 453, 79 S.W. 513 (1904); Johnson v. Farmer, 89 Tex. 610, 35 S.W. 1062 (1896); and, Watson v. Loop, 12 Tex. 11 (1854). That was changed by the adoption of the Texas Survival Statute which was initially enacted May 4, 1895. Ch. 89, 1895 Tex. Gen.Laws 143. It has since been amended, and now reads as follows:
Tex.Rev.Civ.Stat.Ann. art. 5525. Because of the survival statute, it is now accepted that death of the injured party does not bar a recovery of exemplary damages by the estate. Castleberry v. Goolsby Building Corp., 617 S.W.2d 665 (Tex.1981); Folsom Investments, Inc. v. Troutz, 632 S.W.2d 872 (Tex.App. — Fort Worth 1982, writ ref'd n.r.e.); Pace v. McEwen, 574 S.W.2d 792 (Tex.Civ.App. — El Paso 1978, writ ref'd n.r. e.); Houston American Life Insurance Co. v. Tate, 358 S.W.2d 645 (Tex.Civ.App. — Waco 1962, no writ). The argument advanced by the Hofers is that as the survival statute has been interpreted to allow the recovery of exemplary damages to survive the death of one injured, why would not the same survival statute permit the recovery of exemplary damages against a deceased tortfeasor?
The Hofers rely on the survival statute in their attempt to distinguish this case from that of Wright's Administratrix v. Donnell, 34 Tex. 291 (1870), relied upon by Lavender. That "semi-colon" court
Statutory enactments by other states prohibiting or allowing punitive damages provide no assistance in resolving the specific issue before us: whether exemplary damages may be assessed under a statute which specifically provides that all causes of action survive against the representative of a deceased. As to the cases cited in footnote three, two important considerations must be observed. First, these cases did not interpret the right of recovery under a survival statute. Second, all of these opinions are based on the concept that the
Courts in five states have addressed the question which is presented here, i.e., the assessment of exemplary damages against a deceased tortfeasor under a survival statute. Those states are Florida, Iowa, Minnesota, Nevada
Conversely, the reason for allowing exemplary damages against estates of deceased tortfeasors by the courts of Florida and West Virginia is because each of those
In Perry v. Melton, 299 S.E.2d 8 (W.Va. 1982), the Supreme Court of Appeals of West Virginia analyzed the cases of many other jurisdictions, and concluded that the basis of those decisions was because the purpose of punitive damages under the laws of such other states was to punish. The West Virginia court said:
Id. at 12. The West Virginia court continued by pointing out that punitive damages go beyond personal vindication, that they serve a societal function of deterring others from engaging in similar acts and provide additional compensation to sufferers from a defendant's reckless and wanton misconduct.
The analysis of cases from other jurisdictions causes us to conclude that the issue at hand must be resolved on the basis of what Texas has heretofore recognized as the purpose of punitive, vindictive, or exemplary damages. Of course, punishment of the wrongdoer is one purpose of exemplary damages. But, as recently as last year, we have stated that another of the purposes of such damages is to serve as an example to others. Pace v. State, 650 S.W.2d 64, 65 (Tex.1983). We said the same thing in Sheffield Division, Armco Steel Corp. v. Jones, 376 S.W.2d 825, 831 (Tex.1964). An earlier supreme court had concluded that exemplary damages also exist to reimburse for losses too remote to be considered as elements of strict compensation. Mayer v. Duke, 72 Tex. 445, 10 S.W. 565 (1889). In Allison v. Simmons, 306 S.W.2d 206 (Tex.Civ.App. — Waco 1957, writ ref'd n.r.e.), it was held that exemplary damages existed as an example for the good of the public and to compensate for inconvenience and attorney's fees. Another statement as to the purpose of exemplary damages in Texas appears in Foster v. Bourgeois, 253 S.W. 880 (Tex.Civ.App. — Austin 1923), aff'd, 113 Tex. 489, 259 S.W. 917 (1924), where it was stated:
253 S.W. at 885. One of the earliest recorded cases on the subject, Cole v. Tucker,
Inasmuch as Texas case law indicates that the public policy for exemplary damages includes equally important considerations other than punishment of the wrongdoer, the situation in this case is far more closely akin to the holdings of the Florida and West Virginia courts than it is to those of the Iowa, Minnesota, and Nevada courts. For this reason, we conclude that under the Texas Survival Statute there exists a right to collect exemplary damages from the estate of a deceased tortfeasor. Therefore, the trial court judgment in behalf of the Hofers, individually, should be affirmed and the judgment of the court of appeals accordingly reversed. To the extent that Wright's Administratrix v. Donnell is in conflict, it is overruled. The dictum in Sears, Roebuck and Co. v. Jones, 303 S.W.2d 432 (Tex.Civ.App. — Waco 1957, writ ref'd n.r.e), restating the rule of Wright's Administratrix, is disapproved.
Having so concluded, we are compelled to address the alternative argument presented by Ms. Lavender. That argument, restated, is that as the Hofers are not among the class of persons entitled to recover exemplary damages for wrongful death, as delineated by Tex.Const. art. XVI, § 26, they may not recover under the guise of the survival statute. That constitutional provision is as follows:
The original Wrongful Death Act was contained in Ch. 35, 1860 Tex.Gen.Laws 33. The purpose of the act was to create a cause of action for a designated class of persons on account of the wrongful death of one bearing a relationship in a certain degree of consanguinity. Those now entitled to bring a wrongful death action are limited to the surviving husband, wife, children and parents of the deceased. Tex. Rev.Civ.Stat.Ann. art. 4675. Early on it was held that the Wrongful Death Act was not intended as a survival statute. March v. Walker, 48 Tex. 372, 375 (1877).
Quite plainly, the Hofers have no cause of action for exemplary damages under the Wrongful Death Act because Tex.Rev.Civ. Stat.Ann. art. 4675 cannot enlarge upon Tex. Const. art. XVI, § 26. Winnt v. International & G.N.R.R., 74 Tex. 32, 11 S.W. 907 (1889); Houston & T.C. Ry. Co. v. Baker, 57 Tex. 419 (1882). We are of the opinion, however, that the court of appeals correctly decided that pursuant to the survival statute "the heirs or representatives of the estate should be allowed to pursue the entire cause of action and not lose a part of said cause of action because they do not fall within the class of people set forth in art. XVI, § 26 of the Texas Constitution."
As stated in Landers v. B.F. Goodrich Co., 369 S.W.2d 33 (Tex.1963), "[t]wo separate and distinct causes of action may arise where injuries wrongfully inflicted result in death." The opinion observes that statutory beneficiaries are not always entitled to assert both causes of action. Id. at 35. The purposes of the two causes differ. The Wrongful Death Act created a new cause of action in favor of certain named survivors. The survival statute did not create a new cause of action, but kept alive the cause of action that the deceased might have had. It makes no sense to say that a tortfeasor may have exemplary damages assessed against him in favor of a decedent's estate if the beneficiaries of the estate are a spouse or children, but not if the beneficiaries are otherwise. To follow Ms. Lavender's argument to its logical conclusion, actual damages could not be recovered under the survival statute if the beneficiaries of the decedent's estate were other than those persons named in Tex.Rev.Civ. Stat.Ann. art. 4675. Such interpretation would often render meaningless the survival statute. Thus, we are of the opinion that the two most recent Texas writings on this subject, Folsom Investments, Inc. v. Troutz and the court of appeals' opinion in this case, correctly conclude that exemplary damages survive to the estate, whoever the beneficiaries of that estate may be.
We reverse the judgment of the court of appeals and affirm that portion of the judgment of the trial court awarding exemplary damages to the Hofers, individually. As to the exemplary damages awarded J.D. Hofer and Joan Hofer as representatives of the estate of June Hofer, we likewise reverse the judgment of the court of appeals, and remand to that court for its consideration the issue of excessiveness of the exemplary damages awarded by the trial court judgment.
SPEARS, J., dissents with opinion in which POPE, C.J., and McGEE and BARROW, JJ., join.
SPEARS, Justice, dissenting.
I respectfully dissent. I would affirm the holding of the court of appeals that exemplary damages are not assessable against a tortfeasor's estate.
The Hofers contend they are entitled to exemplary damages against Springate's estate
Tex.Rev.Civ.Stat.Ann. art. 5525 (Vernon 1958).
The language of the statute does not expressly allow or disallow exemplary damages against an estate. The Hofers argue that the more natural reading of the statute suggests that exemplary damages should be allowed because a cause of action, including all elements of recovery, survives as if the deceased party were still alive. Because the statutory language is not conclusive, we must decide whether construing the survival statute to allow an award against an estate serves the purposes that justify exemplary damages.
Exemplary damages unquestionably serve to punish the offender and to specifically deter him from future misconduct. E.g., Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex.1981); Bernal v. Seitt, 158 Tex. 521, 313 S.W.2d 520 (1958); Bennett v. Howard, 141 Tex. 101, 170 S.W.2d 709 (1943). Exemplary damages also make an example of the tortfeasor, which serves as a lesson to the public and as a general deterrent to similar actions by others. These dual aims were noted in Wright's Administratrix v. Donnell, 34 Tex. 291 (1870), and were reaffirmed in Sheffield Division, Armco Steel Corp. v. Jones, 376 S.W.2d 825, 831 (Tex.1964), and Pace v. State, 650 S.W.2d 64, 65 (Tex.1983). See also W. Prosser, Handbook of the Law of Torts § 2 (4th ed. 1971); 25 C.J.S. Damages § 117(1) (1966); 28 Tex.Jur.3d Damages § 170 (1983) (collecting other Texas cases). The separate aims of punishing the tortfeasor and providing an example to deter others are mirrored by the interchangeable use of the terms "punitive" and "exemplary" to describe these damages.
Springate's death made legal punishment impossible. No social benefit is served by attempting to punish his estate and, hence, his heirs. The Hofers apparently recognized as much and elected to submit only the exemplary element. The jury was given the following instruction:
No damages were sought or awarded as punishment. The issue then is whether the aim of general deterrence, alone, is sufficient to support an award of exemplary damages.
No Texas court has addressed this specific issue or the broader question of whether the survival statute altered the common law rule precluding exemplary damages against an estate. The case of Wright's Administratrix v. Donnell, 34 Tex. 291 (1870), holding that exemplary damages could not be assessed, was decided long before the survival statute was enacted. The court of appeals decision in Sears, Roebuck & Co. v. Jones, 303 S.W.2d 432 (Tex.Civ.App.— Waco 1957, writ ref'd n.r.e.), also denied exemplary damages, but the effect of the survival statute was not addressed.
The Restatement (Second) of Torts also does not allow exemplary damages against
Because the jury instruction excluded any reference to punishment, the award cannot be disallowed on the basis that it attempts to punish a dead man. The Hofers do not contend that we should allow exemplary damages in order to punish Springate or his estate. Their argument is that, even without inflicting punishment, exemplary damages continue to act as a deterrent to others and are supportable on that basis.
In my opinion, the punitive and deterrent aims of exemplary damages are not separable. The general deterrent effect of an award cannot be considered in isolation, because to a large extent general deterrence depends on punishment. Specifically, members of the public are deterred from similar misconduct because they witness the wrongdoer's punishment. When, through death, the tortfeasor is no longer subject to legal punishment, the general deterrent effect likewise is greatly diminished, if not completely frustrated. Effective deterrence cannot be achieved when punishment is impossible. For this reason, the deterrent function of exemplary damages is insufficient to support an award when the tortfeasor dies before trial. By separating the dual aims of exemplary damages, the court creates the potential for double recovery. The court's reasoning will allow parties to submit one issue seeking damages to punish and deter the tortfeasor and another issue seeking damages as an example to others.
POPE, C.J., and McGEE and BARROW, JJ., join in this dissent.
POPE, Chief Justice, dissenting on motion for rehearing.
I respectfully dissent. I would not visit punishment upon the children and family of the deceased wrongdoer in either a criminal action or a civil action. Plaintiffs, in pressing the right to recover punitive damages from a dead person, accelerate the need for a reexamination of the whole subject of punitive damages. The court holds that the purpose of punitive damages is to punish, to deter others by example, and also to compensate for remote and uncompensated actual damages. If those are the varied purposes, then awards for punitive damages are not anchored to sound doctrinal underpinnings. The whole subject of punitive damages needs study.
Professor Dorsey D. Ellis, Jr. in his article, Fairness and Efficiency in the Law of Punitive Damages, 56 S.CAL.L.REV. 1 (1982), explains that the concept of punitive damages exists somewhere in the borderland between criminal law and torts, and yet it has received only scant attention and is usually relegated to discussion in a footnote. Whether the remedy is civil or criminal in nature, punitive damages are awarded upon vague standards not found in the criminal law and not permitted in the civil law in assessing all other kinds of damages.
I agree with Justice Spears' dissent that the only sound basis for continuing to award punitive damages is that they punish wrongdoers. To say that punitive damages serve as an example and deter egregious conduct is merely to state the purpose of punishment.
The court finds that one reason for awarding punitive damages is to compensate for those elements of injury not covered by an award of actual damages. The court cites Mayer v. Duke, 72 Tex. 445, 10 S.W. 565, 569 (1889) for its statement that punitive damages compensate a claimant for losses too remote to be considered as elements of compensation. It cites Allison v. Simmons, 306 S.W.2d 206 (Tex.Civ.App. — Waco 1957, writ ref'd n.r.e.), for the proposition that punitive damages compensate for inconvenience and attorney fees. Early decisions by this court permitted punitive damages because the law failed to recognize all of the damages required to fully compensate a plaintiff. Stuart v. Western Union Tel. Co., 66 Tex. 580, 18 S.W. 351 (1885); Flanagan v. Womack & Perry, 54 Tex. 45 (1880).
If punitive damages are presently used only to cloak additional elements of actual damages, they should not be allowed at all. We are careful to require a measure of certainty in all other forms of compensatory damages; why should we allow punitive damages to stand alone without any standards or instructions necessary for recovery. If punitive damages serve to permit recovery for some kind of unmentioned compensation, how can we know that there is not a double recovery? If punitive damages mask phantom elements of actual damages, why is it that a plaintiff in an ordinary negligence case is denied those illusive forms of compensatory damages, but a plaintiff can recover them when he proves gross negligence? For example, attorney fees are not recoverable in a negligence case, and they should not be recovered under the guise of punitive damages. We should no longer countenance this legerdemain. We should address the matter of any uncompensated actual damages forthrightly. Certainly we should not permit punitive damages to be an indirect method of collecting attorney fees.
Tangential forms of compensatory damages, if ever justifiably recovered as punitive damages, are now items added to the catalogue of elements that have been carefully isolated, articulated, and explained to
Since punishment and deterrence are the true reasons for punitive damages, and since compensation to victims is not a sound basis for punitive damages, we need to examine the relationship between criminal and civil fines. Punishment is the common thread that has always run through the Texas cases allowing punitive damages. Smith v. Sherwood, 2 Tex. 460, 463 (1847). The damages are not only awarded for the benefit of the aggrieved party, but they are granted to further the public good. Cole v. Tucker, 6 Tex. 266 (1851); Graham v. Roder, 5 Tex. 141, 149 (1849). They are permitted as a "private remedy to become an instrument of public correction." Graham v. Roder, at 150. Punitive damages, says Cotton v. Cooper, 209 S.W. 135, 138 (Tex. Comm'n App.1919, opinion adopted), "are not awarded to enrich the injured party, but are intended rather for the public good...." They are compensation for a "quasi-criminal act of commission or malfeasance." Southern Cotton Press Co. v. Bradley, 52 Tex. 587, 601 (1880).
If we are to continue using punitive damages as a private system of law enforcement for conduct that offends public standards, we must consider innovative ways to improve that system. Who should receive the money derived from the trial that enforces the public good? Should fines imposed for civil wrongs that offend the public go to the state? The tort victim is entitled to be made whole; that should be accomplished by allowing him full compensation for every kind of damage suffered. Some scholars are asking why all of the punitive damages award should go to the victim, when it serves as a civil fine or penalty recovered to benefit the whole public. The victim, who affords the means and provides the attorney to suppress the antisocial conduct, needs some incentive to bring forward the extra proof required to punish the tortfeasor. See Cooter, Economic Analysis of Punitive Damages, 56 S.CAL.L.REV. 79, 90 n. 9 (1982). For his service the attorney should recover a fair fee, perhaps one-third of the punitive damages. If we permit recovery of punitive damages for the public good against a deceased person, I would divide that recovery, after attorney fees, equally between the plaintiffs and the State's General Fund.
GONZALEZ, J., joins in this dissent.
RESTATEMENT (SECOND) OF TORTS, § 926(b) (1979).
A number of these cases are also distinguishable because the courts only considered the frustrated punitive aim and did not discuss the viability of the general deterrent effect of an award. This distinction was recognized in Perry v. Melton, 299 S.E.2d 8 (W.Va.1982), which held that exemplary damages were recoverable because they also served to deter others and provide additional compensation. See also Johnson v. Rinesmith, 238 So.2d 659 (Fla.Dist.Ct.App. 1969), cert. denied 241 So.2d 857 (Fla.1970).