Mental Anguish Damage Case law in Texas Civil Litigation Appeal

JANE GILMORE, CLAYTON RAY PICKENS, CHAD DANIEL PICKENS, AND
ERNEST RAY PICKENS, PARENT AND NEXT FRIEND OF R.N.P., A CHILD,
Appellants v. SCI TEXAS FUNERAL SERVICES, INC. D/B/A
CONNALLY/COMPTON FUNERAL DIRECTORS, INC. AND A&W
INDUSTRIES, INC. D/B/A WILBERT VAULT CO. OF NORTH TEXAS, Appellees
No. 10-06-00209-CV
COURT OF APPEALS OF TEXAS, TENTH DISTRICT, WACO
234 S.W.3d 251; 2007 Tex. App. LEXIS 6512
August 15, 2007, Opinion Delivered, Dissenting and Concurring Opinion Delivered
August 15, 2007, Filed
SUBSEQUENT HISTORY: Rehearing denied by
Gilmore v. SCI Tex. Funeral Servs., 2007 Tex. App.
LEXIS 8426 (Tex. App. Waco, Sept. 11, 2007)
Petition for review denied by SCI Tex. Funeral Servs.,
Inc. v. Gilmore, 2008 Tex. LEXIS 89 (Tex., Jan. 25, 2008)
PRIOR HISTORY: [**1]
From the 19th District Court. McLennan County,
Texas. Trial Court No. 2004-308-1.
DISPOSITION: Affirmed in part, Reversed and
remanded in part.
COUNSEL: For APPELLANT/RELATOR: Greg White,
NAMAN HOWELL SMITH & LEE LLP, Waco, TX.
For APPELLEE/RESPONDENT: Michael G. Cosby,
PAKIS GIOTES PAGE & BURLESON PC, Waco, TX.;
James L. Williams, Williams McClure & Parmelee, Ft. Worth,
TX.
JUDGES: Before Chief Justice Gray, Justice Vance, and
Justice Reyna. (Chief Justice Gray concurring and
dissenting).
OPINION BY: FELIPE REYNA
OPINION
[*253] Appellants Jane Gilmore and the Pickens
family bring this appeal from a take-nothing judgment
rendered in favor of a funeral home and a cemetery vault
company arising from an incident at the graveside service
for Pam Pickens when a lowering device failed and the
casket tipped and fell to the bottom of the vault.
Appellants contend in three issues that: (1) the court
abused its discretion by denying their motion for new
trial in which they [*254] argued that the jury’s verdict
is against the great weight and preponderance of the
evidence on the issues of whether: (a) the funeral home
breached its contract, (b) the funeral home was negligent,
and (c) they suffered compensable mental anguish
damages; (2) the court erred by failing to instruct the jury
in the charge that the funeral home was liable for the acts
and omissions of the vault company under section
651.408 of the Occupations Code; and (3) the court erred
by failing to submit a spoliation [**2] instruction in the
charge because the vault company discarded the lowering
device. We will affirm in part and reverse and remand in
part.
Background
Pam Pickens, who was forty years’ old, suffered a
Page 1
series of unexplained seizures which caused her brain
function to cease. She was removed from artificial life
support only days after she was admitted to the intensive
care unit. Her mother Jane Gilmore handled the funeral
arrangements. 1
1 Pam had been divorced from Ernest Pickens
for 12 years. They had three children: Clay, Chad,
and R.N.P., on whose behalf Ernest appears as
next friend.
Gilmore made the arrangements with
Connally/Compton Funeral Home. The
Connally/Compton representative recommended the
“Wilbert Way” to Gilmore, which involves a ceremonial
lowering of the casket into a vault and the sealing of the
vault at the conclusion of the graveside service. The
Wilbert Way is a service provided by the Wilbert Vault
Company.
At the graveside service, the pastor stepped aside
after he finished a Scripture reading, and two men
approached the casket. One of them, Wilbert Vault
employee James Turner, attached a pair of vice grips to a
lowering device and began lowering the casket into the
[**3] vault. Several witnesses testified that the lowering
device emitted a ratcheting sound which was described
by Gilmore’s husband as being similar to a winch pulling
a boat onto a trailer. 2 As the casket was being lowered,
there was a “big boom,” and the casket turned sideways
and fell an unspecified distance to the bottom of the
vault. The casket was partially opened by the impact,
Pam’s arm was exposed, and several mementos spilled
out.
2 According to the Wilbert Vault employee who
engaged the lowering device, it “was practically
noiseless until the accident happened, and then
you could hear the noise of the gears going like
the sound of a boat winch.”
According to the testimony, the peaceful setting
suddenly broke into pandemonium. Those in attendance
scattered. There were screams. The pastor noticed “a
young girl laying out on the ground.” According to the
Connally/Compton funeral director, “everyone was
visibly upset.” Several men righted the casket. The pastor
had others stand in a line between the vault and the seats
to provide a shield for those in attendance. At the funeral
director’s suggestion, the casket was opened, Pam’s body
was repositioned, and the mementos were returned [**4]
to the casket.
After the casket fell, Gilmore was dazed and
noncommunicative. Her husband testified that she
“turned just as white as your shirt.” In her own words, she
“was way out there.” She does not remember being
helped to a car or taken home. She does not remember
her pastor coming to visit that night. Because of her
condition, Gilmore’s husband had to handle family
matters for a period of time. He adjusted his work
schedule because she was so “distraught” that he did not
want “to leave her too long by herself.” He discussed the
[*255] situation with Connally/Compton representatives
in the days after the funeral and arranged for Pam’s body
to be exhumed, placed in a new casket, and reinterred in a
new vault one week after the funeral. Gilmore’s condition
was such that she could not attend the reinterment. She
testified that the screams from the graveside service “are
just embedded in my mind.”
Pam’s oldest son Clay testified that when the casket
fell he ran up to see what had happened. He estimated the
casket to have opened about eight to ten inches. He saw
his mother’s body, which did not appear as it had for the
viewing earlier in the funeral home. He then turned away
and went to be [**5] with a group of his friends who had
come to the graveside service. From that point,
everything was “[j]ust a blur.”
Pam’s other son Chad testified that when the casket
fell he “just stood there kind of shocked. I didn’t know
what to do. I was just mad.” His friends came up to
console him. He testified that the family drove to the
Gilmores’ house afterward, but he did not recall much
after that.
Pam’s daughter R.N.P. testified that she “[t]ook off
running” when the casket fell. She ran out into the
cemetery and fell down at some point. Her father and
some friends came and helped her up. She did not return
to the graveside area, and the only other memory she has
from that day is being at the Gilmores’ house afterward
with the family.
Wilbert Vault had the lowering device taken to its
offices in Grapevine “to determine what had gone wrong
with it.” It was “determined that the device couldn’t be
repaired,” so Wilbert Vault discarded it with other scrap
metal.
Gilmore and the Pickenses filed suit against
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234 S.W.3d 251, *254; 2007 Tex. App. LEXIS 6512, **2
Connally/Compton 3 and Wilbert Vault alleging
violations of Chapter 651 of the Occupations Code and of
the DTPA, breach of warranty, negligence, breach of
contract, and fraud. They alleged [**6] that the
defendants were liable for each other’s conduct under a
joint-enterprise theory and alternatively that
Connally/Compton was liable for Wilbert Vault’s conduct
under section 651.408 of the Occupations Code.
3 Connally/Compton is a wholly owned
subsidiary of SCI Texas Funeral Services, Inc.
The court granted Connally/Compton’s and Wilbert
Vault’s summary-judgment motions on the fraud, DTPA,
and breach of warranty claims.
At trial, the jury was charged on the breach of
contract and negligence claims as well as the
joint-enterprise theory. The jury refused to find that
Connally/Compton breached its contract, that
Connally/Compton and Wilbert Vault were engaged in a
joint enterprise, or that any negligence on
Connally/Compton’s part was a proximate cause of the
occurrence in question. The jury found that Wilbert
Vault’s negligence was a proximate cause but also found
that none of the plaintiffs suffered compensable mental
anguish.
Mental Anguish
Appellants contend as part of their first issue that the
court abused its discretion by denying their motion for
new trial in which they argued that the jury’s refusal to
award compensable mental anguish damages is against
the great weight [**7] and preponderance of the
evidence.
When an appellant challenges “a jury’s failure to
award any damages, courts of appeals should apply the
principles articulated in Pool v. Ford Motor Co.” Golden
Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 775
(Tex. 2003) (citing Pool, 715 S.W.2d 629, 635 (Tex.
1986)).
[*256] The court of appeals must
consider and weigh all of the evidence,
and can set aside a verdict only if the
evidence is so weak or if the finding is so
against the great weight and
preponderance of the evidence that it is
clearly wrong and unjust. In doing so, the
court of appeals must “detail the evidence
relevant to the issue” and “state in what
regard the contrary evidence greatly
outweighs the evidence in support of the
verdict.”
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.
2001) (quoting Pool, 715 S.W.2d at 635).
To recover damages for mental anguish, plaintiffs
must produce either:
(1) “direct evidence of the nature,
duration, or severity of [plaintiffs’]
anguish, thus establishing a substantial
disruption in the plaintiffs’ daily routine”;
or
(2) other evidence of “‘a high degree
of mental pain and distress’ that is ‘more
than mere worry, anxiety, vexation,
embarrassment, or [**8] anger.'”
Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d
607, 614 (Tex. 1996) (quoting Parkway Co. v. Woodruff,
901 S.W.2d 434, 444 (Tex. 1995)); accord W.
Telemarketing Corp. Outbound v. McClure, 225 S.W.3d
658, 669 (Tex. App.–El Paso 2006, pet. denied); Dillard
Dep’t Stores, Inc. v. Silva, 106 S.W.3d 789, 799 (Tex.
App.–Texarkana 2003), aff’d, 148 S.W.3d 370 (Tex.
2004) (per curiam).
Recovery is warranted in such cases
where the plaintiff’s mental pain has risen
to such a level that it has rendered him or
her incapable of dealing with certain
everyday activities. For instance, as a
result of the mental pain, the plaintiff
suffers from a myriad of negative
emotions; some of these emotions may
manifest themselves in such a way as to
make it difficult for the plaintiff to eat,
sleep, work, socially interact, or carry on
any other activity which, until the time of
the alleged injury, he or she could
accomplish on a day-to-day basis without
difficulty.
Dillard Dep’t Stores, 106 S.W.3d at 799-800; accord
Ortiz v. Furr’s Supermarkets, 26 S.W.3d 646, 653 (Tex.
App.–El Paso 2000, no pet.).
Page 3
234 S.W.3d 251, *255; 2007 Tex. App. LEXIS 6512, **5
“[E]xcept in certain specific, limited instances,” a
plaintiff may not recover mental anguish [**9] damages
in a negligence case if the plaintiff did not also suffer
physical injury. Temple-Inland Forest Prods. Corp. v.
Carter, 993 S.W.2d 88, 91 (Tex. 1999). As an exception
to this general principle, a plaintiff may recover damages
for mental anguish which is:
the foreseeable result of a breach of duty
arising out of certain special relationships.
These include the physician-patient
relationship, perhaps because most
physicians’ negligence also causes bodily
injury, and a very limited number of
contracts dealing with intensely emotional
noncommercial subjects such as preparing
a corpse for burial, or delivering news of
a family emergency.
City of Tyler v. Likes, 962 S.W.2d 489, 496 (Tex. 1997)
(citing Pat H. Foley & Co. v. Wyatt, 442 S.W.2d 904
(Tex. Civ. App.–Houston [14th Dist.] 1969, writ ref’d
n.r.e.)) (emphasis added) (other citations omitted);
accord Temple-Inland Forest Prods., 993 S.W.2d at 91;
Freeman v. Harris County, 183 S.W.3d 885, 890 (Tex.
App.–Houston [1st Dist.] 2006, pet. denied); Lions Eye
Bank of Tex. v. Perry, 56 S.W.3d 872, 875-77 (Tex.
App.–Houston [14th Dist.] 2001, pet. denied).
These “special relationship” cases generally have
three common elements:
(1) [**10] a contractual relationship
between the parties;
[*257] (2) a particular susceptibility
to emotional distress on the part of the
plaintiff; and
(3) the defendant’s knowledge of the
plaintiff’s particular susceptibility to the
emotional distress based on the
circumstances.
Freeman, 183 S.W.3d at 890; Lions Eye Bank, 56 S.W.3d
at 877.
The oft-cited decision of the Fourteenth Court of
Civil Appeals in Pat H. Foley & Co. v. Wyatt is an
example of a “special relationship” case involving a
funeral home. In Pat H. Foley & Co., the plaintiff sued a
funeral home for breach of contract and negligence
arising from the funeral home’s failure to properly
embalm her 23-year-old son’s body. 442 S.W.2d at 905.
Near the conclusion of the service the
plaintiff indicated her insistence that the
casket be opened. All others were then
excused except for members of the
immediate family. Upon the opening of
the casket there emanated from the body
of her son a grossly offensive odor. It was
this occurrence which gave rise to the
damages claimed by the plaintiff. The
plaintiff immediately became ill, fainted
and received medication. It may fairly be
said that the impact of the occurrence
occasioned a significant effect [**11]
upon the sensibilities of the plaintiff.
Id.
The funeral home argued that the jury was not
authorized to award damages for mental anguish because
the plaintiff suffered no physical injury. Id. at 906. The
court rejected this complaint.
In the instant case, however, the mental
anguish is not founded solely in the
tortious act of the defendant, it is at least
in part based upon their contractual
relationship. Secondly, the enumerated
considerations fail for the reasons best set
forth in Lamm v. Shingleton, supra, “The
tenderest feelings of the human heart
center around the remains of the dead.
When the defendants contracted with
plaintiff to inter the body of her deceased
husband in a workmanlike manner they
did so with the knowledge that she was the
widow and would naturally and probably
suffer mental anguish if they failed to
fulfil [sic] their contractual obligation in
the manner here charged. The contract was
predominently [sic] personal in nature and
no substantial pecuniary loss would follow
its breach. Her mental concern, her
sensibilities, and her solicitude were the
prime considerations for the contract, and
the contract itself was such as to put the
defendants on notice that [**12] a failure
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234 S.W.3d 251, *256; 2007 Tex. App. LEXIS 6512, **8
on their part to inter the body properly
would probably produce mental suffering
on her part. It cannot be said, therefore,
that such damages were not within the
contemplation of the parties at the time the
contract was made.”
Id. at 907 (quoting Lamm v. Shingleton, 231 N.C. 10, 55
S.E.2d 810, 813-14 (1949)); see also Freeman, 183
S.W.3d at 890 (loss of infant body after autopsy); Wilson
v. Ferguson, 747 S.W.2d 499, 501-03 (Tex. App.–Tyler
1988, writ denied) (concrete lid dropped on coffin,
breaking coffin and damaging concrete liner).
The following evidence provides some support for
the jury’s refusal to award mental anguish damages to
Gilmore. She does not have any memory of the events
which occurred from the moment the casket fell that
afternoon until late in the evening. She has not sought
counseling or consulted with her pastor about this
incident. 4 And she was already [*258] grieving because
of Pam’s unexpected death. 5
4 Expert testimony is not required to recover
mental anguish damages. See Parkway Co. v.
Woodruff, 901 S.W.2d 434, 444 (Tex. 1995)
(mental anguish may be established from “the
claimants’ own testimony, that of third parties, or
that of experts”); Beaumont v. Basham, 205
S.W.3d 608, 615 (Tex. App.–Waco 2006, pet.
denied) [**13] (same); accord Clayton v.
Wisener, 190 S.W.3d 685, 697 (Tex. App.–Tyler
2005, pet. denied).
5 But see Coates v. Whittington, 758 S.W.2d 749,
752 (Tex. 1988) (orig. proceeding) (“a tortfeasor
takes a plaintiff as he finds him”); Owens v.
Perez, 158 S.W.3d 96, 111 (Tex. App.–Corpus
Christi 2005, no pet.) (same); In re Nance, 143
S.W.3d 506, 512 (Tex. App.–Austin 2004, orig.
proceeding) (same).
Conversely, the record contains significant evidence
which would support a finding that Gilmore suffered
mental anguish because of the occurrence in question.
After the casket fell, she was dazed and
noncommunicative. She had handled virtually all of the
funeral arrangements up to that point, but the events at
the graveside service left her so distraught that she could
not make the arrangements for Pam’s body to be
reinterred. Because of her condition, her husband
adjusted his work schedule because he did not want “to
leave her too long by herself.” 6
6 The fact that this disruption in Gilmore’s daily
activities lasted for only a period of days or weeks
does not mean that she did not suffer compensable
mental anguish. See SunBridge Healthcare Corp.
v. Penny, 160 S.W.3d 230, 251-52 (Tex.
App.–Texarkana 2005, no pet.) [**14]
(discussing cases upholding mental anguish
damages in which the suffering lasted only
moments).
Thus, the record contains substantial evidence that
the emotional trauma caused by the incident made it
difficult for Gilmore to “socially interact, or carry on any
other activity which, until the time of the alleged injury,
[she] could accomplish on a day-to-day basis without
difficulty.” See Dillard Dep’t Stores, 106 S.W.3d at
799-800; Ortiz, 26 S.W.3d at 653; see also W.
Telemarketing Corp. Outbound, 225 S.W.3d at 671
(plaintiff felt “crushed,” her body “br[oke] down,” and
she “was confined to her bed” at times); Robertson
County v. Wymola, 17 S.W.3d 334, 347 (Tex.
App.–Austin 2000, pet. denied) (plaintiff described loss
as “devastating” and “overwhelming”); Stevens v. Nat’l
Educ. Ctrs., Inc., 990 S.W.2d 374, 379 (Tex.
App.–Houston [14th Dist.] 1999) (plaintiff felt
“devastated and depressed” and “did not leave her house
much”), pet. denied, 11 S.W.3d 185 (Tex. 2000) (per
curiam). Accordingly, we hold that the jury’s refusal to
award damages to Gilmore for past mental anguish “is so
against the great weight and preponderance of the
evidence that it is clearly wrong and unjust.” See Doctor
v. Pardue, 186 S.W.3d 4, 19-21 (Tex. App.–Houston [1st
Dist.] 2005, pet. denied); [**15] see also Dow Chem.
Co., 46 S.W.3d at 242.
However, there is slight evidence in the record that
any of the children suffered compensable mental anguish
damages or that Gilmore will suffer compensable mental
anguish in the future. Therefore, we hold that the jury’s
refusal to award damages for these elements of
Appellants’ claims is not “so against the great weight and
preponderance of the evidence that it is clearly wrong and
unjust.” See Dow Chem. Co., 46 S.W.3d at 242.
Breach of Contract
Appellants also contend in their first issue that the
court abused its discretion by denying their motion for
Page 5
234 S.W.3d 251, *257; 2007 Tex. App. LEXIS 6512, **12
new trial in which they argued that the jury’s refusal to
find that Connally/Compton breached its contract is
against the great weight and preponderance of the
evidence. Appellants argue in this regard that the primary
breach of contract is Connally/Compton’s [*259] failure
to provide the Wilbert Way as contemplated by the
parties’ contract.
Under the plain language of the written contract,
Gilmore purchased a Wilbert Venetian Vault and the
“Dignity Heritage Memorial Package” from
Connally/Compton for Pam’s burial. Although there is no
express provision in the contract regarding the purchase
of the Wilbert [**16] Way, no one disputes that the
purchase of this particular vault and the Dignity Heritage
Memorial Package includes purchase of the Wilbert Way
service. See Transcontinental Gas Pipeline Corp. v.
Texaco, Inc., 35 S.W.3d 658, 670 (Tex. App.–Houston
[1st Dist.] 2000, pet. denied) (trade usage is admissible to
explain contract terms so long as it does not contradict
express terms of contract); see also TEX. BUS. & COM.
CODE ANN. § 1.303(c) (Vernon Supp. 2006), § 2.202(1)
(Vernon 1994).
A breach of contract has been defined as “a failure,
without legal excuse, to perform any promise that forms
the whole or part of a contract.” 23 Samuel Williston &
Richard A. Lord, A Treatise on the Law of Contracts §
63:1 (4th ed. 2002) (emphasis added); accord Crim Truck
& Tractor Co. v. Navistar Int’l Transp. Corp., 823 S.W.2d
591, 597 (Tex. 1992) (“the failure to perform the terms of
a contract is a breach of contract”); IKON Office
Solutions, Inc. v. Eifert, 125 S.W.3d 113, 130 (Tex.
App.–Houston [14th Dist.] 2003, pet. denied) (same).
Connally/Compton argues that the failure of the
lowering device does not constitute a breach of the
parties’ contract on its part because Wilbert Vault and not
Connally/Compton [**17] was responsible for the
lowering device. We disagree. Section 318(3) of the
Restatement (Second) of Contracts provides:
Unless the obligee agrees otherwise,
neither delegation of performance nor a
contract to assume the duty made with the
obligor by the person delegated discharges
any duty or liability of the delegating
obligor.
RESTATEMENT (SECOND) OF CONTRACTS § 318(3)
(1981); see Honeycutt v. Billingsley, 992 S.W.2d 570, 579
(Tex. App.–Houston [1st Dist.] 1999, pet. denied).
Connally/Compton also suggests that Appellants
suffered no contract damages from this breach because
Connally/Compton wrote off the $ 8,878 which Gilmore
still owed. We likewise reject this assertion. Even
assuming a jury determined that Gilmore suffered no
actual pecuniary loss, she would at minimum be entitled
to nominal damages. See Centre Equities, Inc. v. Tingley,
106 S.W.3d 143, 154 n.7 (Tex. App.–Austin 2003, no
pet.); Hauglum v. Durst, 769 S.W.2d 646, 651 (Tex.
App.–Corpus Christi 1989, no writ); Fisher v.
Westinghouse Credit Corp., 760 S.W.2d 802, 808 (Tex.
App.–Dallas 1988, no writ).
It is undisputed that Pam’s graveside service did not
conclude with a ceremonial lowering via the Wilbert Way
as contemplated [**18] by the contract. There is no
evidence in the record that Gilmore agreed to discharge
Connally/Compton from this obligation, notwithstanding
Connally/Compton’s delegation of this duty to Wilbert
Vault. See Honeycutt, 992 S.W.2d at 579; Restatement
(Second) of Contracts § 318(3). Therefore, the jury’s
refusal to find a breach of contract “is so against the great
weight and preponderance of the evidence that it is
clearly wrong and unjust.” See Dow Chem. Co., 46
S.W.3d at 242.
Negligence
In the last sub-part of Appellants’ first issue, they
contend that the court abused its discretion by denying
their motion for new trial in which they argued that the
jury’s refusal to find Connally/Compton [*260]
negligent is against the great weight and preponderance
of the evidence. The primary evidence in the record
regarding Connally/Compton’s alleged negligence is that:
(1) Connally/Compton apparently failed to notify Wilbert
Vault ahead of time that Pam’s graveside service would
employ the Wilbert Way; and (2) the funeral director
consented to Wilbert Vault’s use of the vice grips to
activate the lowering device. 7
7 Appellants devote much attention in their brief
to evidence regarding the duty Connally/Compton
[**19] owed Appellants. Connally/Compton does
not dispute the duty element of Appellants’
negligence claim. Nevertheless, we focus on the
lack of evidence that any act or omission on
Connally/Compton’s part was a proximate cause
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234 S.W.3d 251, *258; 2007 Tex. App. LEXIS 6512, **15
of damages to Appellants. See LMB, Ltd. v.
Moreno, 201 S.W.3d 686, 688 (Tex. 2006) (“The
proximate cause element has two components:
cause-in-fact and foreseeability. The test for
cause-in-fact, or “but-for” causation, is whether
(1) the act or omission was a substantial factor in
causing the injury and (2) without the act or
omission the harm would not have occurred.”).
According to the testimony, Wilbert Vault employee
Turner had two lowering devices available on the day of
Pam’s funeral. He used his “primary” lowering device for
an earlier funeral at another cemetery, and the “backup”
device at Pam’s funeral. Turner set up both lowering
devices earlier in the day before he was informed that
Pam’s family had chosen the Wilbert Way. The lowering
device was set to lower Pam’s casket at a fairly rapid rate,
and there was not sufficient time before the graveside
service to reset it to a slower rate of descent. Turner
decided to use the vice grips to control its descent [**20]
and slow it down, though he had never used vice grips in
this manner before. 8 The funeral director did not object
to this plan. 9 According to Turner, the device was
operating properly when the lowering commenced. As
the casket descended, however, a gear inside the lowering
device broke, and the casket fell.
8 Turner explained that there was a specially
designed handle which was usually used to
control the rate of descent. However, he had
misplaced this handle about a week before Pam’s
funeral.
9 Turner testified that he “would have followed
[the funeral director’s] directions” with regard to
the lowering of the casket if she had told him not
to use the vice grips or not to lower the casket at
the conclusion of the graveside service. However,
Appellants do not seek to hold Connally/Compton
liable for Turner’s acts or omissions under a
borrowed employee theory, nor did they seek a
jury instruction on this theory. See St. Joseph
Hosp. v. Wolff, 94 S.W.3d 513, 537-38 (Tex.
2003); see also Bell v. VPSI, Inc., 205 S.W.3d
706, 721 n.3 (Tex. App.–Fort Worth 2006, no
pet.) (“The nature of the control required either
for joint enterprise liability or sovereign immunity
is entirely different [**21] from the control
necessary to impose vicarious liability for
negligence of an independent contractor.”).
“When we measure the sufficiency of the
evidence, we do so under the law as submitted in
the charge if the complaining party did not object
to the charge.” Beaumont v. Basham, 205 S.W.3d
608, 619 (Tex. App.–Waco 2006, pet. denied)
(citing Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.
2000)) (other citations omitted).
Assuming without deciding that a “reasonable
funeral director” would have given Wilbert Vault earlier
notice that Pam’s family had chosen to use the Wilbert
Way and that Turner would have thus set the device to
lower the casket at a slower rate, there is no evidence in
the record that the lowering device would not have failed
under these different circumstances. See LMB, Ltd. v.
Moreno, 201 S.W.3d 686, 688 (Tex. 2006) (“The test for
cause-in-fact, or “but-for” causation, is whether (1) the
act or omission was a substantial factor in causing the
injury and (2) without the act or omission the harm
[*261] would not have occurred.”). Nor is there any
evidence in the record to suggest that the
Connally/Compton funeral director knew or should have
known that the use of the vice grips [**22] would lead to
an increased risk that the lowering device would fail. 10
10 In fact, the only evidence in the record on this
issue (James Turner’s testimony) is that the use of
the vice grips had nothing to do with the failure of
the lowering device.
Accordingly, we cannot say that the jury’s refusal to
find Connally/Compton negligent “is so against the great
weight and preponderance of the evidence that it is
clearly wrong and unjust.” See Dow Chem. Co., 46
S.W.3d at 242.
For the foregoing reasons, we sustain Appellants’
first issue in part and overrule it in part.
Texas Occupations Code Section 651.408
Appellants contend in their second issue that the
court abused its discretion by refusing to instruct the jury
in the charge that the funeral home was liable for the acts
and omissions of the vault company under section
651.408 of the Occupations Code.
We review a trial court’s rulings with regard to
questions, instructions, and definitions to be included in a
jury charge under an abuse-of-discretion standard. See
Roberson v. City of Austin, 157 S.W.3d 130, 138 (Tex.
App.–Austin 2005, pet. denied); Baribeau v. Gustafson,
Page 7
234 S.W.3d 251, *260; 2007 Tex. App. LEXIS 6512, **19
107 S.W.3d 52, 60 (Tex. App.–San Antonio 2003, pet.
denied).
Chapter [**23] 651 of the Occupations Code
establishes the Texas Funeral Service Commission and
governs “Cemetery and Crematory Services, Funeral
Directing, and Embalming.” See Tex. Occ. Code Ann. ch.
651 (Vernon 2004 & Supp. 2006). Section 651.408
provides:
The fact that a funeral director contracts
for cemetery or crematory services,
including [sic] as part of a package
arrangement, does not limit the director’s
liability to the customer for those services.
Id. § 651.408 (Vernon 2004). Connally/Compton argues
that this statute does not apply because the goods and
services provided by Wilbert Vault are not “cemetery or
crematory services.” We agree.
Chapter 651 essentially divides the type of services
to be provided in connection with the disposition of
human remains into “funeral services,” “cemetery
services,” or “crematory services.” See, e.g., id. §
651.001(10) (Vernon 2004) (defining “funeral service”),
§ 651.004 (Vernon 2004) (entitled “Regulation of
Cemetery and Crematory Services”), §§ 651.404,
651.405, 651.406 (Vernon 2004) (governing “consumer
brochure,” “retail price list,” and “purchase agreement”
for provision of funeral services), §§ 651.4055, 651.4065
(Vernon 2004) (governing “retail [**24] price list” and
“purchase agreement” for provision of cemetery or
crematory services); see also Tex. Health & Safety Code
Ann. chs. 711-715 (Vernon 2003 & Supp. 2006)
(governing cemeteries), ch. 716 (Vernon Supp. 2006)
(governing crematories).
The term “funeral service” “means a service
performed incident to a funeral ceremony or for the care
and preparation of a dead human body for burial,
cremation, or other disposition. The term includes
embalming.” Tex. Occ. Code Ann. § 651.001(10). The
Texas Funeral Service Commission has established the
following pertinent regulatory definitions with respect to
the term “funeral ceremony”:
Funeral ceremony–A service
commemorating the deceased with the
body present.
[*262] Graveside service–A funeral
ceremony with the body present held at
the burial site.
22 TEX. ADMIN. CODE § 203.1(8), (11). The various
“funeral services” which must be disclosed in an itemized
“retail price list” include:
(1) transferring a deceased person to the
funeral establishment;
(2) embalming;
(3) using a funeral establishment
facility for viewing the deceased;
(4) using a funeral establishment
facility for funeral services;
(5) using a hearse;
(6) using a limousine;
(7) caskets;
(8) [**25] outer enclosures; and
(9) other itemized services provided
by the funeral establishment staff.
TEX. OCC. CODE ANN. § 651.405(a).
By statute, the sale of the Wilbert Venetian Vault
(i.e., an “outer enclosure”) constitutes the sale of a
“funeral service.” And as we have already observed, the
purchase of this particular vault included purchase of the
Wilbert Way service. Therefore, we hold as a matter of
law that the goods and services provided by Wilbert
Vault constitute “funeral services” and not “cemetery or
crematory services.” Accordingly, section 651.408 does
not apply, and the court did not abuse its discretion by
refusing to submit the requested instruction. Appellants’
second issue is overruled.
Spoliation Instruction
Appellants contend in their third issue that the court
abused its discretion by refusing to submit a spoliation
instruction in the charge with regard to Wilbert Vault’s
discarding of the lowering device. Wilbert Vault argues
primarily 11 that no spoliation instruction was warranted
Page 8
234 S.W.3d 251, *261; 2007 Tex. App. LEXIS 6512, **22
because such an instruction is available only as a sanction
for discovery abuse and “no discovery was ever
conducted with respect to the lowering device.”
11 Wilbert Vault also argues that [**26] any
error in the failure to submit a spoliation
instruction is harmless because the jury found
Wilbert Vault negligent even without such an
instruction. If we were affirming the judgment,
we would agree. “Because we are already
reversing the judgment and remanding this cause,
and because the record on this issue is not fully
developed, we will not rule on it. But we will
discuss the spoliation instruction to guide the trial
court and the parties on remand.” Roberts v.
Whitfill, 191 S.W.3d 348, 360 (Tex. App.–Waco
2006, no pet.); see also Edinburg Hosp. Auth. v.
Trevino, 941 S.W.2d 76, 81 (Tex. 1997); Nu-Way
Energy Corp. v. Delp, 205 S.W.3d 667, 684 (Tex.
App.–Waco 2006, pet. denied).
The Supreme Court has observed that a spoliation
instruction is part of a trial court’s exercise of “discretion
to fashion an appropriate remedy to restore the parties to
a rough approximation of their positions” in cases
involving the loss or destruction of relevant evidence. See
Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721
(Tex. 2003). The Court recognized that “[e]vidence may
be unavailable for discovery and trial for a variety of
reasons.” Id. (emphasis added).
The Court further observed [**27] that Texas courts
“have generally limited the use of the spoliation
instruction to two circumstances: 1 the deliberate
destruction of relevant evidence and 2 the failure of a
party to produce relevant evidence or to explain its
non-production.” Id. The second instance usually
involves discovery abuse, but the first does not.
Accordingly, we hold that a spoliation instruction may be
warranted in a case involving the loss or destruction of
evidence even when there [*263] is no allegation of
discovery abuse. 12 See Tex. Elec. Co-op. v. Dillard, 171
S.W.3d 201, 208-09 (Tex. App.–Tyler 2005, no pet.)
(upholding spoliation instruction in case not involving
discovery dispute).
12 In the context of physical evidence, a party
can be required to produce only those “documents
or tangible things within the person’s possession,
custody or control.” Tex. R. Civ. P. 196.3(a). If a
particular item has been lost or destroyed before a
request for production is served, it is no longer in
the party’s possession and its non-production
necessarily cannot constitute a discovery
violation. See In re Kuntz, 124 S.W.3d 179,
183-84 (Tex. 2003) (orig. proceeding). Thus, were
we to endorse Wilbert Vault’s contention [**28]
that a spoliation instruction is available only in
cases involving discovery abuse, there would
exist a perverse inducement to destroy potentially
relevant evidence at the earliest opportunity. This
would clearly undercut the very justifications for
a spoliation instruction.
A spoliation instruction is warranted when the party
had a duty to preserve the lost or destroyed evidence at
issue. Wal-Mart Stores, Inc., 106 S.W.3d at 722. “Such a
duty arises only when a party knows or reasonably should
know that there is a substantial chance that a claim will
be filed and that evidence in its possession or control will
be material and relevant to that claim.” Id. Stated another
way, such a duty arises when a party is “on notice that
there [is] a substantial chance that the [the other party]
would pursue a claim.” Id.
Here, it is unclear from the record when Wilbert
Vault was put on notice that there was a substantial
chance the plaintiffs would pursue this claim. This issue
will have to be determined before the trial court can
decide whether to include a spoliation instruction in the
charge. Based on the limited record before us, it appears
that Gilmore would be entitled to a spoliation instruction
[**29] if she lays the proper predicate. See Roberts v.
Whitfill, 191 S.W.3d 348, 362 (Tex. App.–Waco 2006, no
pet.).
Conclusion
We affirm those parts of the judgment decreeing that
the Pickens children take nothing on their claims and that
Gilmore take nothing on her claim for future mental
anguish. We reverse the judgment on the remainder of
Gilmore’s claims and remand this cause to the trial court
for further proceedings consistent with this opinion.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Page 9
234 S.W.3d 251, *262; 2007 Tex. App. LEXIS 6512, **25
Justice Reyna
(Chief Justice Gray concurring and dissenting)
Affirmed in part,
Reversed and remanded in part
Opinion delivered and filed August 15, 2007
CONCUR BY: TOM GRAY
DISSENT BY: TOM GRAY
DISSENT
DISSENTING AND CONCURRING OPINION
This is clearly one of those cases where it would be
easier to check off as agreeing and hope that the
consequences of the majority opinion will not be as great
as I fear. I could conceivably rest my hope on the fact
that this is a case involving a funeral service and may be
largely ignored in any other context. But as “hope, while
important, is not a strategy” (attributed to Gen. Tommy
Franks, retired, United States Army; former Commander
In Chief, United States Central Command), neither
[**30] is hope a reason to allow bad precedent to be
made without objection or dissent.
There are so many individual statements and
holdings in the opinion with which I disagree that in the
time I have available I could not address them all. But my
problem in this regard is somewhat simplified because of
the jury’s answers and the overriding issue of whether the
plaintiffs proved they were entitled to mental anguish
damages. If the plaintiffs failed to prove mental anguish
damages, all the remainder is meaningless dicta and
should not be discussed at all. So I will discuss only why
the majority opinion is wrong on [*264] the issue of
mental anguish and only when the other holdings become
relevant in some future case will I then address the errors
in those holdings.
MENTAL ANGUISH DAMAGES
What happened at the graveside ceremony of Pam
Pickens is not something that anyone would want
repeated. The legal problem, as I see it and as argued to
the jury, was how much, if any, of the mental anguish
described in the testimony was proven by a
preponderance of the evidence to have been caused by
the failure of the casket lowering device rather than the
natural and normal mental anguish caused to a mother by
the [**31] sudden and unexpected death of a daughter
with three young children of her own.
The jury, twelve good men and women of McLennan
County duly selected and empanelled, were assigned the
responsibility to decide, and in effect separate, the mental
anguish proven as a result of the casket lowering device
failure and that attributable to Pam’s death. We do not
know what part of the verdict two of the jurors did not
agree with, but at least ten jurors agreed that the plaintiffs
had not proven by a preponderance of the evidence that
any legally compensable mental anguish, as defined in
the charge, had been suffered by any of the plaintiffs.
Upon a proper motion, the duly elected trial court
judge, after himself having sat through the trial, hearing
all of the evidence, observing all of the testimony of all of
the witnesses, and after careful review and due
deliberation of the motion, refused to order a new trial on
this theory. I agree with the ten jurors and the trial court.
While the majority opinion drops a footnote that the
defendants must take the plaintiffs as they find them,
S.W.3d , fn 5, I believe they have inverted, possibly
inadvertently, the impact of this relatively simple [**32]
concept. While the plaintiffs’ sensibilities may be
heightened due to the circumstances in which the
regrettable event occurred, the defendants are not legally
responsible for the mental anguish which was caused by
the unexpected and untimely death of Pam. It was the
plaintiffs’ burden to prove to the jury by a preponderance
of the evidence the mental anguish, if any, proximately
caused by the failure of the casket lowering device. The
plaintiffs failed to prove such mental anguish to the jury’s
satisfaction.
To charge the defendants with all the mental anguish
in reliance on the concept that you take the plaintiffs as
you find them is error. Under their theory, a plaintiff who
was already suffering from one ailment before an event
could recover from a defendant responsible for the event,
damages that were being suffered separate and apart from
an incident that merely increased those damages. This is
not the law.
If a person with only one leg has suffered loss of
earning capacity, a defendant liable for the loss of the
other leg does not pay for the loss of earning capacity for
Page 10
234 S.W.3d 251, *263; 2007 Tex. App. LEXIS 6512, **29
both legs, only the increased loss of earning capacity
caused by the loss of the second leg. And a person who
[**33] already has a disfigurement from a facial scar is
not compensated for that original disfigurement if other
or additional disfigurement is caused to that person.
The rule that you take a plaintiff as you find him is
properly applied when the plaintiff’s previously existing
condition causes the additional injury to be more than it
would have been if the plaintiff did not already have the
preexisting condition. For example, if an elderly person is
negligently knocked to the ground and due to brittle
bones caused by osteoporosis [*265] breaks a hip bone,
the negligent person is liable for the broken hip bone
even if the bone of a normal healthy person would not
have broken in such a fall, but is not liable for the
osteoporosis. See Driess v. Friederick, 73 Tex. 460, 11
S.W. 493 (Tex. 1889). The plaintiff still must prove to the
satisfaction of the jury that the bone broke as a result of
the fall which was caused by the negligence of the
defendant.
CONCLUSION
It seems pretty clear that the jury was not convinced
that the mental anguish, if any, being suffered by the
plaintiffs was attributable to the event at the funeral
rather than Pam’s death so they answered “none” to the
mental anguish damages question as [**34] to each
plaintiff. Accordingly, because the trial court did not err
in refusing to grant a new trial for factually insufficient
evidence on the issue of mental anguish, I would overrule
this issue. And, therefore, because the plaintiffs’ have not
proven any compensable damages, there would be no
need to address any of the other issues raised by any of
the parties in this appeal. Accordingly, I would affirm the
judgment of the trial court in its entirety. Because the
majority reverses the trial court in part, I dissent. To the
extent the trial court’s judgment is affirmed, I concur. 1
1 As previously indicated, there are many other
statements in the remainder of the majority
opinion that are wrong but would be unnecessary
for me to review due to the disposition of this
single issue. Accordingly, I will not exhaust
further resources addressing those errant holdings.
TOM GRAY
Chief Justice
Dissenting and concurring opinion delivered and
filed August 15, 2007
Page 11
234 S.W.3d 251, *264; 2007 Tex. App. LEXIS 6512, **32

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