concurring and dissenting.
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 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 *264the 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 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, 284 S.W.3d 251, 258 fn. 5,1 believe they have inverted, possibly inadvertently, the impact of this relatively simple 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 both legs,, only the increased loss of earning capacity caused by the loss of the second leg. And a person who 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 plaintiffs 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 *265breaks a hip bone, the negligent person is hable 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. Frederick, 73 Tex. 460, 11 S.W. 498 (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 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
. 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.