TEXAS DEPARTMENT OF MENTAL FROM A DISTRICT COURT HEALTH AND MENTAL RETARDATION, APPELLANT/CROSS-APPELLEE, v. OF JANIE CLIFT, APPELLEE/CROSS-APPELLANT.GRAYSO

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01122-CV
 
TEXAS DEPARTMENT OF MENTAL FROM A DISTRICT COURT
HEALTH AND MENTAL RETARDATION,
 
 
        APPELLANT/CROSS-APPELLEE,
 
 
v. OF
 
 
JANIE CLIFT,
 
 
        APPELLEE/CROSS-APPELLANT.GRAYSON COUNTY, TEXAS
 
 
 
BEFORE CHIEF JUSTICE ENOCH AND JUSTICES COLEMAN FN:1 AND SCALES FN:2
OPINION BY JUSTICE COLEMAN
JUNE 19, 1989
        Jessie Gail Clift, a retarded person who was also quadriplegic, drowned after being left unattended while being given a whirlpool bath by an employee of the Fort Worth State School, a facility of the Texas Department of Mental Health and Mental Retardation (TDMHMR).
        Plaintiff filed suit alleging a survival action on behalf of Jessie Gail Clift's estate and an action on behalf of herself under the Wrongful Death Act. TEX. CIV. PRAC. & REM. CODE § 71.002 (Vernon 1986). After TDMHMR confessed liability, the case was tried to a jury only as to the damage issues. The jury found that Janie Clift was entitled to zero damages for mental anguish and loss of society resulting from the death of her daughter. However, the jury awarded $75,000.00 for the pain and suffering of the decedent, Jessie Gail Clift. The trial court entered judgment for $163,874.44. This amount was arrived at by adding an award of pre-judgment interest to the $75,000.00 found by the jury as actual damages.
        TDMHMR contends that the Trial Court erred in granting pre-judgment interest and in allowing Plaintiff a judgment in excess of the limit that the Texas Tort Claims Act placed on damage awards at the time the cause of action arose.
        The Texas Tort Claims Act provides that a governmental unit in the state is liable for personal injury and death caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. TEX. CIV. PRAC. & REM. CODE § 101.021 (Vernon 1986). The Supreme Court has held pre-judgment interest to be recoverable on a wrongful death claim against a private person. Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 554 (Tex. 1985). We agree with the Court of Appeals for the Sixth District of Texas that the allowance of appropriate interest (in accordance with Cavnar) not exceeding the allowed maximum statutory recovery is proper. State Dept. of Highways & Public Transp. v. Bacon, 754 S.W.2d 279, 282 (Tex. App.--Texarkana 1988, writ denied).
        The events giving rise to this cause of action occurred on August 6, 1980, when Jessie Gail Clift died. The Texas Tort Claims Act in effect at the time of that occurrence set a limit of liability under the Act at $100,000.00 per person. Texas Tort Claims Act, ch. 292, § 3, 1969 Tex. Gen. Laws 874, 875 (found at TEX REV. CIV. STAT. ANN. art. 6252-19, § 3 (Vernon 1970)) amended by Act of June 19, 1983, ch. 530, § 1, 1983 Tex. Gen. Laws 3084, 3084-85, repealed by Act of June 16, 1985, ch. 959, § 9, 1985 Tex. Gen. Laws 3242, 3322 (recodified at TEX. CIV. PRAC. & REM. CODE § 101.023 (Vernon 1986)).
        In City of Austin v. Cooksey, 570 S.W.2d 386 (Tex. 1978) the Court stated:
                Prior to this Act there could be no liability at all for torts committed by a governmental unit. Therefore, the limits of liability set by the Act must be accepted along with the benefits of the Act. When one person is injured or killed, and one plaintiff brings suit, the applicable limit of liability is $100,000.00 . . . .
 
        The controversy here centers around whether the term "per person" in the statute refers to the person injured or those persons who suffer a loss as a result of an injury to someone else. We think the clear meaning of the statute is that it refers to the person or persons who sustain injury.
Cooksey, 570 S.W.2d at 387.
        In 1983 the Tort Claims Act was amended raising the State's liability to $250,000.00. Act of June 19, 1983, ch. 530, § 1, 1983 Tex. Gen. Law 3084, 3084-85. The 1983 amendment specifically provided that a cause of action arising before the effective date of the Act would be governed by the law as it existed on the date the acts or omission occurred. Id. at § 2. Because the cause of action for a wrongful death arose in August 1980, three years before the effective date of the amendment, this suit is still subject to the $100,000.00 limitation.
        Clift argues that because the recodification of article 6252-19 into the Texas Civil Practices and Remedies Code omitted the provision then in effect that the raise in the limits of liability not apply to causes of action preceding the adoption of the amendment, this provision was omitted and is no longer effective. However, the recodification of article 6252-19, as with all recodifications, was intended as a non-substantive recodification. See Act of June 16, 1985, ch. 959, § 10, 1985 Tex. Gen. Law 3242, 3322 (Vernon). The intention of the Legislature not to have the higher limits of liability applied retroactively is clear in the 1983 amended act and there is no reason to believe that the omission of that provision in the recodification many years later was an indication of a contrary intention.
        There is no authority to establish that the limits of liability in effect at the time of trial governs. The Bacon case recognizes that the limitation in effect at the time the actual omission occurred is the applicable limitation. See Bacon, 754 S.W.2d at 279. The recovery on behalf of the estate of Jessie Gail Clift must be reduced to the sum of $100,000.00.
        By cross-point, Clift urges that the trial court erred by sustaining TDMHMR's special exceptions to her request for punitive damages, because punitive damages are available under the provisions of the Texas Constitution. Section 101.024 of the Texas Practice and Remedies Code provides that the Texas Tort Claims Act does not authorize exemplary damages. There is, therefore, no waiver of governmental immunity in suits for exemplary damages. Lynch v. Port of Houston Auth., 671 S.W.2d 954, 958 (Tex. App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.).
        Clift urges, however, that she is entitled to pursue her claim for punitive damages by reason of article 16, section 26 of the Texas Constitution, which provides that every person that may commit a homicide through willful act or omission or gross neglect shall be responsible in exemplary damages "to the surviving husband, widow, heirs of his or her body, or such of them as there may be . . . ." TEX. CONST. art. 16, § 26. A recovery of exemplary damages for death as authorized in this provision of the constitution is limited to the classes of persons specified in the constitution. A parent cannot recover exemplary damages for the death of a child as "heir of his body." Winnt v. International & G. N. Ry. Co., 74 Tex. 32, __, 11 S.W. 907, 908 (Tex. 1889); McKethan v. McKethan, 728 S.W.2d 856, 857 (Tex. App.--Houston [1st Dist.] 1987, no writ); Bridges v. Phillips Petroleum Co., 733 F.2d 1153, 1155 (5th Cir. 1984), cert. denied, 469 U.S. 1163 (1985) (construing Texas law). The trial court did not err in sustaining the special exceptions to the cause of action asserted for exemplary damages.
        By the second cross-point of error, appellee contends that the district court erred in refusing to grant her motion for partial new trial because Janie Clift was entitled to damages as a matter of law. The jury failed to find any amount of damage in answer to two issues dealing with Janie Clift's personal mental anguish in the past and in the future.
        In Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983), Justice Spears, writing for the Court, said:
        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. Injuries resulting from mental anguish may actually be less nebulous than pain and suffering, or injuries resulting from loss of companionship or consortium. A Plaintiff should be permitted to prove the damages resulting from a tortfeasor's negligent infliction of emotional trauma. This includes recovery for mental anguish.
Sanchez, 651 S.W.2d at 253 (citations omitted). There is no complaint that Janie Clift was denied the right to produce such evidence as she had concerning her damages. Issues were submitted to the jury. We are not prepared to hold that in every case the jury must necessarily award some amount of money as damages in a case of wrongful death.
        In determining the amount of damage that would fairly and reasonably compensate Janie Clift, the jury was instructed to consider her loss of companionship and society and her mental anguish. These terms were defined as suggested in Moore v. Lillebo, 722 S.W.2d 683, 688 (Tex. 1986). The jury awarded money damages for the pain and suffering of the decedent, but, despite the instruction, failed to award damage to Janie Clift for her loss of companionship and society or for her mental anguish.
        In Moore, the court said: "Proof of Moore and Theaker's family relationship constitutes some evidence they suffered mental anguish from the wrongful death of their son. The evidence mandates submission of a damage issue on mental anguish." Moore, 722 S.W.2d at 686. In support of this statement the court cites Connell v. Steel Haulers, Inc., 455 F.2d 688 (8th Cir. 1972), in which the court said:
        We are satisfied from our reading of the Arkansas cases that parents, such as the Connells, are entitled to have the issue of mental anguish submitted to the jury on the basis of the emotional impact suggested by the circumstances surrounding their loss. We are convinced that assessment of the resulting grief is a task for which juries have traditionally been considered well-suited, and in which they can be properly expected to draw upon their own experience and empathy.
Connell, 455 F.2d at 691.
        In Moore, the court said that it would search the record to determine if there is any evidence to support the loss of society and companionship issues under the rules set out in Garza v. Alviar, 395 S.W.2d 821 (Tex. 1965).
        It is our conclusion that the legal question involved is whether the trial court is required to submit issues to the jury. Once these issues have been submitted then the verdict can be attacked only on the basis of lack of evidentiary support for the jury finding.
        In the motion for partial new trial, Janie Clift asserted that there was no evidence to support the jury's answer of zero to Special Issues 1-A, 1-B, 1-C and 1-D. A point in a motion for new trial is a pre-requisite to a complaint on appeal of factual insufficiency of the evidence to support a jury finding or that a jury finding is against the overwhelming weight of the evidence. A point is also required, in order to complain on appeal of the inadequacy or excessiveness of the damages found by the jury. TEX. R. CIV. P. 324. Only the "no evidence" point is included in this appeal.
        Clift's brief includes references to specific pages of the statement of facts. The file in this case reflects that a statement of facts was received in the clerk's office on December 16, 1988. It was due on October 28, 1988. No motion for extension of time was filed, and, as a consequence, a statement of facts was not filed. In the absence of a statement of facts, we are unable to review points of error relating to the state of the evidence. The cross-assignments of error are denied.
        The judgment of the trial court is REVERSED IN PART and the judgment is RENDERED limiting the recovery of appellee Janie Clift to the sum of $100,000.00, consisting of the sum of $75,000.00 for pain and mental anguish and the sum of $25,000.00 for pre-judgment interest.
 
                                                  
                                                  TOM F. COLEMAN
                                                  JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-01122.F
 
FN:1 The Honorable Tom F. Coleman, Chief Justice, Retired, Court of Appeals, First District of Texas, at Houston, sitting by assignment.
FN:2 The Honorable R. T. Scales, Justice, Retired, Court of Appeals, Fifth District of Texas, at Dallas, sitting by assignment.
File Date[01-02-89]
File Name[881122F]