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Mitchell v. Akers

401 S.W.2d 907 (1966)

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Mitchell v. Akers

Texas Court of Civil Appeals

401 S.W.2d 907 (1966)

Facts

Milton Akers and Helen Akers’s (plaintiffs) three-and-a-half-year-old son, Philip Akers, drowned in John Mitchell’s (defendant) private swimming pool. Milton and Helen sued Mitchell for damages as parents in their own behalf pursuant to Article 4671 of Vernon’s Annotated Civil Statutes (VACS), and as sole heirs in behalf of Philip’s estate pursuant to Article 5525 of VACS. Dr. Gilbert examined Philip a few minutes after Philip was removed from the pool. Dr. Gilbert believed that Philip drowned after struggling and enduring physical pain and mental anguish for two or three minutes before losing consciousness. Furthermore, Dr. Gilbert did not see any bruises or marks on Philip that would have indicated that Philip may have fallen against a hard object and become unconscious before falling into the pool. The Akers argued that their negligence cannot bar recovery of damages by Philip’s estate in a suit brought after Philip’s death by his heirs. A jury found that Helen failed to keep a proper lookout for Philip’s safety and that she was contributorily negligent and proximately caused his death. Under Article 4671 of VACS, the jury’s findings barred the Akers from recovering damages sustained by them as parents as a result of Philip’s death. However, the jury awarded the Akers $5,000 as sole heirs in behalf of Philip’s estate. Mitchell appealed, arguing that there was no evidence or insufficient evidence to support a finding that Philip suffered physical pain and mental anguish between the time he fell into the pool and the time that he lost consciousness. Mitchell also argued that the verdict awarding $5,000 to the Akers for physical pain and mental anguish suffered by Philip was excessive.

Rule of Law

Issue

Holding and Reasoning (Dixon, C.J.)

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