## Facts

- A three-year, eight-month-old child, Philip Akers, drowned in John T. Mitchell’s private residential swimming pool while on Mitchell’s premises with his family.
- Philip’s parents sued on two theories: (1) their own wrongful-death damages as parents, and (2) a survival claim as Philip’s heirs on behalf of his estate for Philip’s conscious physical pain and mental anguish before death.
- Medical testimony indicated Philip likely struggled in the water and experienced conscious pain and mental anguish for roughly two to three minutes before losing consciousness.
- The physician observed no bruising or marks suggesting Philip had been rendered unconscious by striking a hard object before entering the pool.
- The jury found Philip’s mother negligent in failing to keep a proper lookout for his safety and found that negligence was a proximate cause of the drowning.
- Based on the mother’s contributory negligence, the parents’ wrongful-death recovery in their own right was barred, but the jury awarded $5,000 to the parents as heirs on behalf of Philip’s estate for Philip’s pre-death pain and mental anguish.
- The trial court rendered judgment on the $5,000 survival award, and Mitchell appealed.

## Issues

1. Whether legally or factually sufficient evidence supported the jury’s finding that Philip experienced conscious physical pain and mental anguish after entering the pool and before losing consciousness.
2. Whether the $5,000 award for Philip’s brief pre-death pain and mental anguish was excessive.
3. Whether the parents’ contributory negligence that barred their wrongful-death recovery also barred recovery on behalf of the child’s estate on the survival claim.

## Decision

- The appellate court affirmed the judgment awarding $5,000 to the parents as heirs on behalf of Philip’s estate.
- The court held the evidence was legally and factually sufficient to support the finding of Philip’s conscious pain and mental anguish before losing consciousness.
- The court held the $5,000 award was not excessive under the record and did not warrant reversal or remittitur.
- The court treated the parents’ contributory negligence as barring only their personal wrongful-death recovery, not the estate’s survival recovery.

## Legal Principles

- Conscious pain and mental anguish before death may be proven by expert medical testimony and circumstantial evidence; direct evidence from the decedent is not required.
- Appellate review of “no evidence” and “insufficient evidence” challenges respects the jury’s role in weighing probative testimony when some evidence supports the finding.
- Damages for pain and mental anguish have no fixed measure; a jury’s award will not be disturbed absent a showing it is the product of improper factors or is otherwise outside permissible bounds.
- A parent’s contributory negligence can bar the parent’s own wrongful-death recovery, but it does not automatically bar a survival claim belonging to the decedent’s estate, even when pursued by the same parents as heirs.

## Conclusion

The court upheld a survival recovery for a drowned child’s pre-death pain and mental anguish based on medical and circumstantial proof, and it held that the mother’s contributory negligence barred only the parents’ wrongful-death damages, not the estate’s separate survival claim.


Mitchell v. Akers, 401 S.W.2d 907 (Tex. Civ. App.—Dallas 1966)