United States Court of Appeals,
Fifth Circuit.
Mrs. Sylva B. POPE, Plaintiff-Appellee,
v.
ROLLINS PROTECTIVE SERVICES COMPANY, Defendant-Appellant,
v.
The ATLANTIC MUTUAL INSURANCE COMPANY, Intervenor-Appellee.
No. 82-2137.
April 22, 1983.

Burglar alarm lessee brought action against burglar alarm lessor and
installer under Texas Deceptive Trade Practices Act to recover for physical
injury and mental anguish sustained when she entered her house while
burglary was in progress and none of burglar alarm components properly
operated. The United States District Court for the Southern District of
Texas, Norman W. Black, J., entered judgment on a jury verdict in favor of
lessee, and lessor appealed. The Court of Appeals, Wisdom, Circuit Judge,
held that: (1) evidence was sufficient to support finding that
misrepresentations of lessor were a producing cause of lessee's injuries
sustained when she walked into her home unaware that burglary was in
progress because various components of burglar alarm system did not
function, either because they were deficient or because burglars were able
to disarm them; (2) evidence of lessee's physical injury was sufficient to
enable lessee to recover damages for her mental anguish, and thus, since
lessee demonstrated circumstances permitting recovery under Texas common-law
rule, damages were recoverable under Texas Deceptive Trade Practices Act;
and (3) award of $150,000 for lessee's mental anguish was not excessive.
Affirmed.


West Headnotes

[1] KeyCite Notes

92H Consumer Protection
92HI In General
92Hk2 Constitutional and Statutory Provisions
92Hk3 k. Purpose, Intent, and Construction in General. Most Cited
Cases

One of the primary reasons for the enactment of the Texas Deceptive Trade
Practices Act was to provide consumers with a remedy for deceptive trade
practices without the burden of proof and numerous defenses encountered in a
common-law fraud or breach of warranty action. V.T.C.A., Bus. & C. § 17.41
et seq.

[2] KeyCite Notes

92H Consumer Protection
92HII Remedies of Consumer
92Hk32 k. Right of Action in General. Most Cited Cases

A putative plaintiff still must show that deceptive trade practice caused
his damage in order to recover under Texas Deceptive Trade Practices Act.
V.T.C.A., Bus. & C. § 17.41 et seq.

[3] KeyCite Notes

272 Negligence
272XIII Proximate Cause
272k371 k. Necessity of Causation. Most Cited Cases
(Formerly 272k56(1))

272 Negligence
272XIII Proximate Cause
272k374 Requisites, Definitions and Distinctions
272k387 k. Foreseeability. Most Cited Cases
(Formerly 272k56(1))

Under Texas law, proximate cause has two elements; cause-in-fact and
foreseeability.

[4] KeyCite Notes

272 Negligence
272XIII Proximate Cause
272k374 Requisites, Definitions and Distinctions
272k387 k. Foreseeability. Most Cited Cases
(Formerly 272k56(1.7), 272k56(1.6))

Under Texas law, foreseeability is not an element of producing cause.

[5] KeyCite Notes

272 Negligence
272XIII Proximate Cause
272k430 Intervening and Superseding Causes
272k433 k. Intentional or Criminal Acts. Most Cited Cases
(Formerly 272k62(1))

Under Texas law, an illegal intervening act would not effect proximate cause
inquiry only if that act were foreseeable.

[6] KeyCite Notes

382 Trade Regulation
382I Trade-Marks and Trade-Names and Unfair Competition
382I(A) Marks and Names Subjects of Ownership
382k30 k. Fictitious, Mythological or Noted Names. Most Cited Cases

Proper causation standard under Texas Deceptive Trade Practices Act is
producing cause. V.T.C.A., Bus. & C. § 17.41 et seq.

[7] KeyCite Notes

170B Federal Courts
170BVIII Courts of Appeals
170BVIII(K) Scope, Standards, and Extent
170BVIII(K)3 Presumptions
170Bk799 k. Verdict. Most Cited Cases

170B Federal Courts
170BVIII Courts of Appeals
170BVIII(K) Scope, Standards, and Extent
170BVIII(K)5 Questions of Fact, Verdicts and Findings
170Bk841 k. Extent of Review in General. Most Cited Cases

When Court of Appeals considers an appellant's allegations of insufficient
evidence underlying a special jury verdict, it must consider all the
evidence, but in the light and with all reasonable inferences supporting
challenged finding.

[8] KeyCite Notes

92H Consumer Protection
92HII Remedies of Consumer
92Hk36 Actions
92Hk39 k. Evidence. Most Cited Cases

In action brought by burglar alarm lessee against alarm lessor and installer
under the Texas Deceptive Trade Practices Act, evidence was sufficient to
support finding that misrepresentations of burglar alarm lessor and
installer were a producing cause of lessee's injuries sustained when she
walked into her home unaware that burglary was in progress and because
various components of burglar alarm system did not function, either because
they were deficient or because burglars were able to disarm them. V.T.C.A.,
Bus. & C. § 17.41 et seq.

[9] KeyCite Notes

372 Telecommunications
372IV Special Services or Activities
372k463 k. Alarm Systems. Most Cited Cases

In action brought by burglar alarm lessee against alarm lessor and
installer, evidence of lessee's physical injury resulting from postburglary
stress was sufficient to enable lessee to recover damages for her mental
anguish, and thus, since lessee demonstrated circumstances permitting
recovery under Texas common-law rule, damages were recoverable under Texas
Deceptive Trade Practices Act. V.T.C.A., Bus. & C. §§ 17.41 et seq., 17.50.

[10] KeyCite Notes

361 Statutes
361VI Construction and Operation
361VI(A) General Rules of Construction
361k187 Meaning of Language
361k190 k. Existence of Ambiguity. Most Cited Cases

When a statute is clear and unambiguous on its face, a court will not look
to legislative history to alter application of statute except in rare and
exceptional circumstances.

[11] KeyCite Notes

92B Consumer Credit
92BI In General
92Bk17 k. Effect of Violation of Regulations or Lack of License. Most
Cited Cases

372 Telecommunications
372IV Special Services or Activities
372k463 k. Alarm Systems. Most Cited Cases

Where burglar alarm lessor and installer failed to notify burglar alarm
lessee, at time she entered into contract, of her right under Texas Home
Solicitation Act to cancel contract within three days, contract was void and
unenforceable, and amount of damages lessee was entitled to recover from
lessor for lessor's misrepresentations and negligence in installation and
design of burglar alarm system were not controlled by liquidated damages
provision of contract. Vernon's Ann.Texas Civ.St. arts. 5069-13.01 et seq.,
5069-13.02, 5069- 13.03(b).

[12] KeyCite Notes

92H Consumer Protection
92HII Remedies of Consumer
92Hk36 Actions
92Hk40 k. Judgment and Relief. Most Cited Cases

Trebling of damages under Texas Deceptive Trade Practices Act is mandatory.
V.T.C.A., Bus. & C. §§ 17.41 et seq., 17.50.

[13] KeyCite Notes

170B Federal Courts
170BVIII Courts of Appeals
170BVIII(K) Scope, Standards, and Extent
170BVIII(K)5 Questions of Fact, Verdicts and Findings
170Bk870 Particular Issues and Questions
170Bk872 k. Inadequate and Excessive Damages. Most Cited Cases

A jury award would not be reversed on grounds of excessiveness unless award
is so large that it shows passion or prejudice or shocks judicial
conscience.

[14] KeyCite Notes

372 Telecommunications
372IV Special Services or Activities
372k463 k. Alarm Systems. Most Cited Cases

Damages award of $150,000 in favor of burglar alarm lessee against alarm
lessor and installer for mental anguish sustained by lessee during and after
physical assault she suffered at hands of burglars following her entry into
home unaware that burglary was in progress due to alarm's failure to operate
properly was not excessive.

[15] KeyCite Notes

170B Federal Courts
170BVIII Courts of Appeals
170BVIII(K) Scope, Standards, and Extent
170BVIII(K)5 Questions of Fact, Verdicts and Findings
170Bk870 Particular Issues and Questions
170Bk872 k. Inadequate and Excessive Damages. Most Cited Cases

Absent gross excessiveness, monetary measure jury assigns to subjective
damages for mental anguish will be accepted.
Robert H. Singleton, Jr., Houston, Tex., for defendant-appellant.
Phillip A. Pfeifer, Houston, Tex., for Pope.
Robert H. Bateman, Houston, Tex., for Atlantic Mut.
Appeal from the United States District Court for the Southern District of
Texas.

Before WISDOM, RUBIN and TATE, Circuit Judges.


WISDOM, Circuit Judge:
This case explores the liability of a burglar alarm lessor and installer to
the lessee when the alarm fails to operate because of tampering by burglars.
At trial, the plaintiff prevailed and received trebled damages including an
amount for her mental anguish. We affirm.

Statement of the Case
In 1973, a representative of the defendant, Rollins Protective Services Co.
(Rollins), communicated with the plaintiff, Sylva Pope, about the
installation and leasing of burglar alarms. Pope was 60 years old, a widow,
and lived alone. Following a visit and demonstration by a salesman at her
home, Pope agreed to lease the Rollins system.
The system consisted of a master control unit, numerous battery powered
wireless transmitters, a separate outdoor siren, and a "panic button". A
transmitter would transmit electronic signals to the master control if the
electronic contacts on the transmitter were disconnected or moved. If that
occurred or if the panic button was pushed, the master control unit would
activate three alarms. The first alarm, which sounded immediately, was a
high-pitched tone called "sonalert" which could be heard inside but not
outside the house. The second alarm was a loud separate siren outside the
house that sounded for a period of 10 minutes. Finally, the master control
unit would automatically dial Rollins's "central station" giving the name
and location of the residence. The control station would then notify the
Houston Police Department and a neighborhood police service. The latter two
alarms would go off if the first alarm was not deactivated, by inserting a
key into the master control unit, within 20 seconds. The panic button was a
device that the customer could carry in her hand or purse, and would
activate the three systems, even if the transmitters did not detect an
intrusion. The Rollins representative, in selling Mrs. Pope on the system,
told her that the average response time of the local police was from three
to five minutes.
Testimony later showed that the so-called "central station" was an answering
service with no special access to the police and would not even notify
Rollins of an alarm call. Moreover, the average police response time in 1973
was twenty-six minutes.
When Rollins installed the system, Pope noticed that the wires running from
the master control unit were installed outside the sheetrock wall in her
broom closet and were visible if the door to the closet was open. Rollins's
representative assured her that if the wires were cut all of the alarms
would go off. Actually, if the wires to the individual alarms were cut, they
would not operate. The system did not have an independent power source for
the siren. If the wire to the outside siren was cut, there would be no way
the siren could sound. There was evidence at trial that the Rollins
representative knew that a burglar could disarm the alarms by cutting the
wires running from the master control unit. Other evidence indicated that
Rollins knew in 1978 that burglars in the Houston area were aware of this
deficiency in the design of the burglar alarm system. About fifty times in
1978, Rollins went back to its customers to reinstall the wires behind the
walls. Rollins gave no warning to Pope about the deficiencies in the system.
On January 28, 1978, Mrs. Pope returned to her home around 7:00 p.m. When
she opened the back-door to her house, she noticed the absence of the
customary sound of the inside high-pitched sonalert alarm. This did not
bother her, however, because the same thing had happened a month before
because of low batteries for the transmitter on her back-door. Then she
discovered that some of the wires running from her master control unit had
been cut. [FN1] She ran from the house screaming. As she ran, she heard a
scuffling sound behind her, so she pushed the panic button in her purse to
set off the outdoor siren. The siren did not go off. The burglars, two men
in ski masks, caught her outside the back door, brought her back into the
house, threw her onto the floor of the utility room, and held a gun to her
head while other burglars searched her house. She hit her head on the
washer-dryer, and feigned unconsciousness. She remained on the floor twenty
minutes with a gun to her head. During this time, the men took her watch and
bracelet from her wrist, a pin from her scarf, and her wedding ring. One of
the burglars ran his hands around her neck. They rifled her purse.


FN1. The burglars cut the wires that should have activated the indoor
high-pitched alarm and the outdoor siren. They overlooked cutting the
telephone dialer cable.


The burglars had entered Mrs. Pope's home through a glass door that was
protected by a Rollins transmitter. They disarmed the Rollins system,
however, by cutting the exposed siren and antenna wires at the master
control unit. They did not cut the dialer telephone cable, however.
A neighbor of Pope's heard her scream and called the local police service. A
security officer came to Pope's home, made a cursory inspection of the
premises, but did not discover any evidence of the burglary. By the time he
returned to the station, the pre-recorded telephone message had been
delivered and he returned and discovered Pope. The burglars fled before the
security officer returned.
Harry Caldwell, a former Chief of the Houston Police Department, testified
that in his opinion, the only real function of a burglar alarm system is to
scare the burglars away. He testified that the only effective deterrent to
crime is a loud bell or siren. Such a system has no real value if the bell
or siren does not work. Tim Pals, a former Rollins installer, who inspected
Mrs. Pope's home after the burglary, concurred that the only portion of the
Rollins system that was designed to protect Mrs. Pope (the siren) had been
disarmed by the burglars. He also testified that having the wires installed
in the wall would have made it more difficult to disarm the system in the
twenty seconds before the siren would sound.
Pope tried her case to a jury. Pope testified that she had suffered severe
anxiety because of her experience. She was unable to stay in her home until
a new alarm system was installed. A psychiatrist testified that she suffered
from chronic post-traumatic stress disorder as a result of her involvement
in the life-threatening situation. The psychiatrist expected Pope's
disability to continue for a number of years.
The jury found Rollins liable to Pope on several theories. It found that
Rollins had misrepresented the characteristics of the alarm system in
violation of § 17.46(b)(5) of the Texas Deceptive Trade Practices Act
(DTPA). It found that Rollins had caused confusion regarding the telephonic
feature of the system in violation of § 17.46(b)(3) of the DTPA. It found
that Rollins had been grossly negligent in its installation and design of
the burglar alarm system, and in failing to warn Pope that burglars could
disarm the system. Finally, Rollins was held strictly liable to Pope because
the jury found that Rollins had leased Pope a defective burglar alarm
system. There was evidence from which the jury could have inferred that the
operation of the siren would have warned Pope not to enter her home, or that
the siren would cause the burglars to flee, or both. The jury awarded Pope
$15,250 for loss of property, $150,000 for past and future mental anguish,
and $150,000 punitive damages for Rollins's gross negligence. The trial
court granted Rollins's motion for judgment n.o.v. with regard to the
punitive damages and trebled the other damage elements pursuant to the DTPA.

Liability Under the Texas DTPA
At trial, Pope tried to show that Rollins's conduct breached the DTPA in two
ways. First, Pope contended that Rollins misrepresented the system's ability
to deter burglars and to operate if the wires running from the control unit
were cut. Second, Pope maintained that Rollins deceived her when it told her
that the recorded message relayed by the system would be received by Rollins
personnel. Instead, an answering service received the message and notified
the police. Pope contended that, had Rollins's employees received the
message, they would have relayed the message more quickly. She testified
that had Rollins told her the truth about the effectiveness of the alarm
system and the message relay procedure, she would not have agreed to lease
the system.
The jury considered the evidence and returned special verdicts pertaining to
the elements of Pope's DTPA claim. The jury found that Rollins represented
to Pope that its burglar alarm system had "characteristics, uses or
benefits" that it did not have. [FN2] The jury also found that Rollins had
caused "confusion or misunderstanding" regarding its affiliation with the
answering service. Finally, the jury found that the misrepresentations and
confusion were producing causes of Pope's mental anguish.


FN2. The jury found that Rollins has misrepresented the attributes of the
alarm system: (1) by representing that the alarm system would provide safety
and security from intrusion into her residence; (2) by representing that the
Houston Police Department would be dispatched within three to five minutes;
and (3) by representing that the outside siren would sound even if the wires
from the master control unit to the siren were cut.


On appeal, Rollins argues that Pope presented no evidence or, at most,
insufficient evidence that its representations were producing causes of her
mental anguish. Moreover, Rollins contends that the DTPA does not allow her
to recover damages for her mental anguish. We hold that the trial court did
not err in allowing Pope to recover under the DTPA.
[1] At the time the system was installed and at the time of the incident,
before amendment in 1979, Tex.Bus. & Com.Code Ann. § 17.50 (Vernon
Supp.1978) provided, in relevant part:
(a) A consumer may maintain an action if he has been adversely affected by:
(1) the use or employment by any person of an act or practice declared to be
unlawful by Section 17.46 of this subchapter ....
(b) In a suit filed under this section, each consumer who prevails may
obtain:
(1) three times the amount of actual damages plus court costs and attorney's
fees reasonable in relation to the amount of work expended....
Section 17.46 provided, before the 1979 amendments:
(a) False, misleading, or deceptive acts or practices in the conduct of any
trade or commerce are hereby declared unlawful.
(b) The term "false, misleading, or deceptive acts or practices" includes,
but is not limited to, the following acts: ...
(3) causing confusion or misunderstanding as to affiliation, connection, or
association with, or certification by, another; ...
(5) representing that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities which they do
not have or that a person has a sponsorship, approval, status, affiliation,
or connection which he does not; ...
One of the primary reasons for the enactment of the DTPA was to provide
consumers with a remedy for deceptive trade practices without the burdens of
proof and numerous defenses encountered in a common law fraud or breach of
warranty action. Smith v. Baldwin, Tex.1980, 611 S.W.2d 611, 616; Woo v.
Great Southwestern Acceptance Corp., Tex.App.1978, 565 S.W.2d 290, 298. In
keeping with the broad legislative purpose, § 17.44 provides:
This subchapter shall be liberally construed and applied to promote its
underlying purposes, which are to protect consumers against false,
misleading, and deceptive business practices, unconscionable actions, and
breaches of warranty and to provide efficient and economical procedures to
secure such protection.
See United Postage Corp. v. Kammeyer, Tex.Civ.App.1979, 581 S.W.2d 716, 723;
Rinehart v. Sonitrol of Dallas, Inc., Tex.Civ.App.1981, 620 S.W.2d 660, 662.
[2] [3] [4] [5] [6] Despite the legislature's expansion of liability for
those who use deception to generate business, a putative plaintiff still
must show that the deceptive trade practice caused his damage. Marshall,
Tex. v. Bryant Air Conditioning, 5 Cir.1981, 650 F.2d 724, 727. Although the
pre-1979 version of § 17.50 referred to consumers who have been "adversely
affected by" a deceptive trade practice, [FN3] Texas courts have construed
that term to mean that the unlawful practice must have been a "producing
cause" of the plaintiff's injury. [FN4] See American Transfer & Storage Co.
v. Brown, Tex.Civ.App.1979, 584 S.W.2d 284, 294-96, rev'd on other grounds,
Tex., 601 S.W.2d 931 cert. denied, 1980, 449 U.S. 1015, 101 S.Ct. 575, 66
L.Ed.2d 474; O'Shea v. I.B.M., Corp., Tex.Civ.App.1979, 578 S.W.2d 844, 847;
Charping v. Light, Tex.Civ.App.1979, 578 S.W.2d 462, 464; Curry, The 1979
Amendments To The Deceptive Trade Practices--Consumer Protection Act, 1980,
32 Baylor L.Rev. 51, 60; Goodfriend and Lynn, Of White Knights and Black
Knights: An Analysis of the 1979 Amendments to the Texas Deceptive Trade
Practices Act, 1979, 33 Sw.L.J. 941, 979 n. 219; cf. Note, Special Issue
Submission in Cases Controlled by the Texas Deceptive Trade Practices Act:
Spradling v. Williams, 32 Sw.L.J. 1043, 1046.


FN3. The 1979 amendments to the DTPA replaced the term "adversely affected
by". As amended, the relevant part of § 17.50 reads: "A consumer may
maintain an action where any of the following constitute a producing cause
of actual damages: ..." (emphasis added). The Senate debate on this change
indicated that the substitution of "producing cause"
for "adversely affected by" reflected the widely accepted construction of
the latter term by the courts as the equivalent of the former term. See
Goodfriend and Lynn, Of White Knights and Black Knights: An Analysis of the
1979 Amendments to the Texas Deceptive Trade Practices Act, 1979, 33 Sw.L.J.
941, 979 n. 217; Curry, The 1979 Amendments To The Deceptive Trade
Practices--Consumer Protection Act, 1980, 32 Baylor L.Rev. 51, 60.



FN4. The distinction between producing cause and proximate cause is an
important one for Rollins. Under Texas law, proximate cause has two
elements; cause-in-fact and foreseeability. Farley v. M M Cattle Co.,
Tex.1975, 529 S.W.2d 751, 755. Foreseeability is not an element of producing
cause, however, C.A. Hoover and Son v. O.M. Franklin Serum Co., Tex.1969,
444 S.W.2d 596, 598; see Goodfriend and Lynn, 33 Sw.L.J. at 980. In the
portion of its brief devoted to Pope's claims under negligence and strict
liability theories, Rollins attacks the jury's findings of proximate cause.
The company argues that the presence of intervening wrongdoers, the burglars
in this case, is dispositive of the proximate causation issue. But see
Abdallah v. Caribbean Security Agency, 3d Cir.1977, 557 F.2d 61, 63 & n. 3.
An illegal intervening act would not affect the proximate cause inquiry only
if that act were foreseeable. Abdallah, 557 F.2d at 63; Austin v. Schmedes,
Tex.1955, 279 S.W.2d 326, 331; McCane-Sondock Protection Systems, Inc. v.
Emmitte, Tex.Civ.App.1976, 540 S.W.2d 764, 765. We need not consider the
foreseeability of the burglars in this case, however, because the proper
causation standard under the DTPA is producing cause.


The parties agree that Pope had to show that Rollins's representations were
a producing cause of her mental anguish to succeed under the DTPA. The trial
court gave the following instruction on the definition of producing cause:
"The term producing cause means an efficient, exciting or contributing
cause, which in a natural sequence, produces the injuries or damages
complained of, if any, and without which the injury would not have
occurred." Rollins does not challenge this instruction. It contends instead
that the jury had no, or alternatively, insufficient evidence before it to
find that Rollins's misrepresentations were a producing cause of Pope's
injuries. According to Rollins, it is pure conjecture to assume that
truthfulness on their part would have caused a different outcome in the
burglary at the Pope home.
[7] When this Court considers an appellant's allegations of insufficient
evidence underlying a special jury verdict, the court must review the
evidence in a light most favorable to the appellee. Maxey v. Freightliner
Corp., 5 Cir.1982, 665 F.2d 1367, 1371 (en banc ); see Boeing Co. v.
Shipman, 5 Cir.1969, 411 F.2d 365, 368-70 (en banc). The court must consider
all the evidence, but in a light and with all reasonable inferences
supporting the challenged finding. Maxey, 665 F.2d at 1371. The evidence
presented at trial showed that Pope was concerned about the location of the
wires running from the master control unit when Rollins installed the unit.
She testified that if she had known that a burglar could disable the system
by cutting the master control unit wires or that an answering service would
receive the recorded message instead of Rollins employees, she would not
have leased the Rollins system. She testified that the outside siren feature
of the Rollins system was the most appealing feature to her. She also
testified that her physical security was the biggest motivation for her
initial and continuing relationship with Rollins. She testified that she
pushed her "panic button" as the burglars chased her, but to no avail. There
was evidence that other systems available to Pope had design features and
back up power systems that insured that all components would continue to
function if the wires were cut. Finally, the evidence showed that an
operating outdoor alarm virtually always makes burglars flee.
[8] After hearing this evidence, the jury easily could have found that
Rollins's misrepresentations were a producing cause of her injury. If she
had known of the malfunction that snipping the exposed wires would cause,
the jury could have assumed that she would have had the wires run behind the
wall or installed a more effective system. If the burglars had been able to
gain entry without activating the siren, Pope would have achieved that
result when she pushed her panic button. Once the siren sounded, the jury
could assume that Pope's assailants would have fled. Even if no system were
installed, the jury could have inferred from her overriding concern for her
own safety that she would have taken some steps to insure her physical
security. In any event, the natural result of Rollins's misrepresentations
was Pope's reliance on a deficient system and the exploitation of those
deficiencies by burglars to her detriment. The jury finding on the producing
cause issue is supported by the evidence in the record.
Rollins's second contention is that Pope is not entitled to recover for her
mental anguish under the DTPA, as a matter of law. Section 17.50 of the DTPA
provides for the recovery of "actual damages". The Texas Supreme Court has
construed the term "actual damages" as those damages that are recoverable at
common law. Brown v. American Transfer & Storage Co., Tex., 601 S.W.2d 931,
939, cert. denied, 1980, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474. Under
the Texas common law, "[d]amages for mental anguish cannot be recovered
absent a showing of an intentional tort, gross negligence, willful and
wanton disregard, or accompanying physical injury." Farmers & Merchants
State Bank v. Ferguson, Tex.1981, 617 S.W.2d 918, 921; see Duncan v. Luke
Johnson Ford, Tex.1980, 603 S.W.2d 777, 779. According to Rollins, Pope has
failed to show any of the circumstances enumerated in the common law rule
and, therefore, she is not eligible to recover damages for her mental
anguish under the DTPA.
Pope argues that she can recover for her mental anguish for several reasons.
First, she contends that her condition during and after the assault in her
home comes within the definition of a physical injury under Texas law.
Second, she relies on Rollins's knowledge of similar malfunctions in its
system as evidence that Rollins acted in a willful or grossly negligent
manner. Third, she argues that she comes within a recognized exception to
the common law rule because the focus of the contractual relationship was
the promotion of her peace of mind and Rollins should have foreseen the
mental anguish that would result from a breach of its contractual duty.
Finally, according to Pope, the common law rule, as originally adopted in
Texas, allows for recovery for mental anguish in cases involving any
property damage.
To establish that her case qualifies as physical injury under Texas law,
Pope directs this Court's attention to the evidence presented regarding her
assault and her condition after the burglary. After the burglars caught her
as she ran from her home, they dragged her back into the house and threw her
onto the floor in her utility room. As we previously noted, when she fell,
she bumped her head on her washer and dryer and feigned unconsciousness for
the twenty minutes that the burglars stayed in the house. She was on the
floor in constant fear while one of the burglars stood over her with a
pistol to her head and the other searched her for valuables.
Immediately following the incident Pope was hysterical. She was unable to
live in her house again until a new alarm system was installed seven weeks
later. Her personality changed after the assault. A friend testified that
Pope was noticeably nervous and withdrawn after the assault, and had trouble
sleeping. A neighbor testified that Pope exhibited nervousness for more than
a year after the burglary, and repeatedly requested him to investigate
noises in her house and accompany her when she came home alone at night.
Pope called as an expert Dr. James Claghorn, a board certified psychiatrist
and assistant professor of psychiatry at Baylor College of Medicine.
Claghorn's examination of Pope revealed that, after her life-threatening
situation, she experienced extreme insecurity and anxiety that forced her to
take elaborate precautions to feel secure. At one point her anxiety caused
severe weakness, bordering on paralysis, in her legs requiring her
hospitalization. Claghorn diagnosed her condition as post-traumatic stress
disorder, a recognized condition similar to battle fatigue.
[9] We find that Pope has shown sufficient evidence of physical injury to
recover damages for her mental anguish. The common law rule requiring a
showing of physical injury as a prerequisite for an award for mental anguish
stems from a judicial concern for the difficulty of administering a more
liberal rule.
... [M]ental anguish, standing alone, is too subtle and speculative to be
measured by any known legal standard; mental anguish and its consequences
are so intangible and peculiar and vary so much with the individual that
they cannot reasonably be anticipated, hence they fall without the
boundaries of any reasonably proximate causal connection with the act of the
defendant; a "wide door" might thereby be opened not only to fictitious
claims but to litigation over trivialities and mere bad manners as well;
and, finally, since mental anguish can exist only in the mind of the injured
party, not only its extent but its very existence can be established only by
the word of the injured party, in the absence of some objective injury.
Harned v. E-Z Finance Co., Tex.1953, 151 Tex. 641, 254 S.W.2d 81, 85; see W.
Prosser, Law of Torts 329 (4th ed. 1971). The question then becomes what
level of "objective injury" is required before a defendant becomes liable
for the mental distress he has caused. Or, put in the context of the case at
hand, do Pope's ailments rise to the level of physical injury? We find that
they do.
In the recent case of Haught v. Maceluch, 5 Cir.1982, 681 F.2d 291, we
considered the meaning the Texas courts give to the term physical injury.
Our reasoning in that case applies equally here:
"Texas courts have been somewhat liberal in defining what constitutes a
'physical injury.' ... [U]nder Texas law physical injury is not restricted
to what is commonly thought of as physical injury--i.e., damage to some
physical structure of the body--but extends to nervous disorders and
physical and mental ailments resulting from objective fright or mental
shock. Sutton Motor Co. v. Crysel, 289 S.W.2d 631 (Tex.Civ.App.--Beaumont
1956, no writ)." For example, in a leading case the Texas Supreme Court held
that allegations of high nervousness, irritability, an upset stomach, loss
of sleep, and an inability to perform previous employment were sufficient
physical injury to support a cause of action. See Duty v. General Finance
Co., 154 Tex. 16, 273 S.W.2d 64 (1954). [FN5]


FN5. Continuing, we said:


Other cases decided by the Supreme Court have reached similar conclusions.
See e.g. Gulf, C. & S.F. Ry. Co. v. Hayter, supra, 93 Tex. 239, 54 S.W. 944
(1960) (plaintiff's "traumatic neurasthenia" constituted sufficient injury);
Houston Electric Co. v. Dorsett, 145 Tex. 95, 194 S.W.2d 546 (1946) (extreme
nervousness, severe headaches, lapse of memory, and brain deterioration).
Bailey v. American General Ins. Co., 154 Tex. 430, 279 S.W.2d 315, 318
(1955) ("anxiety neurosis"); St. Louis Southwestern Ry. Co. of Texas v.
Alexander, 106 Tex. 518, 172 S.W. 709, 710 (1915) ("nervous trouble"). Under
this standard, the district court correctly decided that appellant's
injuries--depression, nervousness, weight gain, and nightmares--were more
than mere fright and were indeed sufficient to
constitute physical injury.


Moreover, we feel confident that appellant's injuries satisfy the purposes
of the Texas physical injury requirement--namely, to prevent false claims
and to limit claims to those involving serious emotional shock. This Court
has no trouble in recognizing appellant's claim of emotional distress to be
genuine and her emotional shock to be serious.


Haught, 681 F.2d at 279 n. 9.


Haught, 681 F.2d at 279 n. 9. In addition to the same sort of symptoms
experienced by the plaintiff in Haught, Pope's anxiety manifested itself in
a more tangible way, a weakness in her limbs that resulted in her
hospitalization. Moreover, her condition was severe enough to be diagnosed
by a psychiatrist as post-traumatic stress disorder, a condition recognized
by the American Psychiatric Association. Based on all of the evidence
regarding Pope's condition following her assault, we hold that she had a
physical injury for purposes of the common law rule governing recovery for
mental anguish. [FN6] Since her damages are recoverable under the common
law, they are recoverable under the DTPA. [FN7] Brown, 691 S.W.2d at 939.
Our finding that Rollins's liability may be grounded in the DTPA precludes
the need to discuss the other bases of liability found by the jury.


FN6. Because we hold that the physical manifestations of Pope's mental
anguish were enough to satisfy the common law rule, we need not determine
whether the physical aspects of her encounter with the burglars, such as her
bumping her head or the burglars groping for jewelry, constitute a "physical
injury". It is worth noting, however, that Texas law permits recovery for
the mental anguish that results from battery even where there is no injury
to the physical structure of the plaintiff's body and the only contact
between the plaintiff and defendant is slight. Fisher v. Carrousel Motor
Hotel, Inc., Tex.1967, 424 S.W.2d 627, 629-30.


Similarly, because of our holding above, we need not address the other
theories Pope advances as support for her recovery of damages for mental
anguish under the DTPA.



FN7. We find additional support for our holding in the Texas legislature's
express desire that the DTPA be given an expansive reading. See Tex.Bus. &
Com.Code Ann. § 17.44 (Vernon Supp.1982). Considering the evidence that Pope
repeatedly expressed her concern for her personal safety and that Rollins
misrepresented the effectiveness of its system and did nothing to remedy the
deficiencies in the system or warn Pope when it learned that the criminal
community had begun to exploit those deficiencies, our holding furthers the
purposes of the DTPA.
Some commentators have said that the legislative history of the 1979
amendments to the DTPA renders future mental anguish debates moot. The Texas
Senate's proposed amendments to the DTPA included a definition of actual
damages. The House of Representatives deleted the definition. The House
version of the amendments, with no definition of actual damages, was enacted
into law effective August 27, 1979. The deletion prompted the following
exchange in the House:


Gibson [of Ector]: ... Would [the term actual damages] include any damages
that were incurred by the plaintiff such as mental anguish?


Hill [of Potter]: ... It would include any damages that you could convince
the jury had occurred as a result of a violation of the Deceptive Trade
Practices Act.


Gibson: ... So, in other words, any damages involving mental anguish, any
damages that were consequential from the act of the defendant would be
included in your amendment, is that correct?


Hill: That's right.


Some commentators have inferred from this colloquy that mental anguish is an
element of damages in all DTPA actions filed after the effective date of the
amendments. Mayer and Stanberry, Damages for Mental Anguish Under the
Deceptive Trade Practice Act: Are They Recoverable?, 1981, 44 Tex.B.J. 1193,
1196.



Reduction of Damages
Rollins contends that, even if the jury was correct in holding Rollins
liable to Pope, we should reduce the amount of damages awarded. Rollins
advances two reasons for the reduction. First, it argues that the amount of
damages is controlled by the liquidated damages provision of the contract
with Pope. Second, Rollins considers the damages awarded for Pope's mental
anguish excessive as a matter of law.
The contract between Rollins and Pope provided that Rollins's liability
resulting from the actions of its employees would be limited to $250. [FN8]
The trial court held that this provision did not limit Rollins's liability
to Pope because the contract between the parties was void. The district
court based its decision on Rollins's failure to notify Pope, at the time
she entered the contract, of her right under the Texas Home Solicitation Act
(THSA), Tex.Rev.Civ.Stat.Ann. art. 5069-13.02 (Vernon Supp.1982), to cancel
the contract within three days. Under the THSA, failure to give notice of
the right to cancel the contract renders the agreement "void and
unenforceable". Id. art. 5069-13.03(b).


FN8. The relevant provision of the "Installation-Service Contract" read:
The parties agree that if loss or damage should result from the failure of
performance or operation or from defective performance or operation or from
improper installation or servicing of the System, that Rollins' liability,
if any, for the loss or damage thus sustained shall be limited to a sum
equal to ten (10%) percent of one year's service charge or $250.00,
whichever sum is the greater, and that the provisions of this paragraph
shall apply if loss or damage, irrespective of cause or origin, results,
directly or indirectly to persons or property from performance or
nonperformance of obligations imposed by this Agreement or from negligence,
active or otherwise, of Rollins, its agents or employees.


[10] [11] Rollins does not deny that it has violated the express provisions
of the THSA. It argues, instead, that by failing to enforce the liability
limitation provision of the contract, the district court applied the THSA in
a way never intended by the Texas legislature. It is axiomatic that where a
statute is clear and unambiguous on its face, a court will not look to
legislative history to alter the application of the statute except in rare
and exceptional circumstances. Rubin v. United States, 1981, 449 U.S. 424,
430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633, 639; Glenn v. United States, 5
Cir.1978, 571 F.2d 270, 271; General Electric Co. v. Southern Construction
Co., 5 Cir.1967, 383 F.2d 135, 138. We see no rare and exceptional
circumstances in this case. [FN9] Even if we accepted Rollins's contention
that the district court has dictated a harsh result, harshness alone would
not necessitate an examination of the legislative history underlying the
THSA. United States v. Second Nat. Bank of North Miami, 5 Cir.1974, 502 F.2d
535, 540, cert. denied, 1975, 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777;
Woodson v. Califano, S.D.Tex.1978, 455 F.Supp. 457, 458. Rollins violated
the provisions of the THSA, and it must suffer the sanctions contained
within that Act.


FN9. One such "rare and exceptional" circumstance occurs when a literal
reading of a statute would plainly frustrate the legislature's purpose in
passing the statute. Bohannon v. Manhattan Life Ins. Co., 5 Cir.1977, 555
F.2d 1205, 1209. The district court's reading of art. 5069-13.02 does not
frustrate the intent of the Texas legislature. The purpose of the THSA was
to "provide protection to customers purchasing goods, services, or realty in
which the merchant or person acting for him engages in a personal
solicitation of the sale to the consumer at the residence of the consumer".
McDaniel v. Pettigrew, Tex.App.1976, 536 S.W.2d 611, 614. In this case, our
holding will protect Pope from a limitation contained in a contract
presented to her in her home. This result furthers, rather than frustrates,
the legislative purpose behind the
THSA.


[12] Rollins also contends that the district court abused its discretion in
refusing to reduce the amount of the jury's verdict for Pope's mental
anguish. The jury awarded Pope $150,000 for her mental anguish. The trial
court trebled that amount pursuant to § 17.50(b) of the DTPA. The trebling
of damages under the DTPA is mandatory. Woods v. Littleton, Tex.1977, 554
S.W.2d 662, 671. Thus, in determining whether the jury verdict was grossly
excessive, we can examine only the base award of $150,000.
[13] [14] After considering Rollins's motion to reduce the amount of the
judgment, the trial court stated that although the award was generous, it
was not so excessive or shocking to the judicial conscience that it required
reversal. We, too, will not reverse the jury's verdict unless the award is
so large that it shows passion or prejudice or shocks the judicial
conscience. See Perricone v. Kansas City Southern Ry., 5 Cir.1980, 630 F.2d
317, 320; Wiley v. Stensaker Schiffahrtsges, 5 Cir.1977, 557 F.2d 1168,
1171, cert. denied, 1978, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792. The
damages awarded here do not shock our conscience.
[15] The jury heard testimony concerning Pope's condition and they observed
the witnesses and the plaintiff during the course of examination and
cross-examination. Damages for mental anguish are, by their very nature,
subjective and the jury has a much better opportunity than this court to
determine the extent of the plaintiff's injury. Absent gross excessiveness
not present in this case, we accept the monetary measure the jury assigns to
that subjective damage. Cf. Fenslage v. Dawkins, 5 Cir.1980, 629 F.2d 1107,
1109, 1110 (Court affirmance of exemplary and compensatory damage award of
$130,000 for mental anguish of mother wrongfully deprived of custody of
child). [FN10]


FN10. Because Pope failed to cross-appeal with regard to the trial court's
judgment n.o.v. on the issue of Rollins's gross negligence, we need not
address that ruling. Fed.R.App.P. 4(a); see Duriso v. K-Mart No. 4195, 5
Cir.1977, 559 F.2d 1274, 1278.


The judgment is AFFIRMED.
C.A.Tex.,1983.
Pope v. Rollins Protective Services Co.
703 F.2d 197
END OF DOCUMENT