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Note:

Thurston Howard Reynolds II, Wrongful Death—Diversity Actions—Exclusion of Evidence of Surviving Spouse’s Remarriage Constitutes Reversible Error in Wrongful Death Action, but Fact of Remarriage Cannot Mitigate Damages When Action is Based on Texas Law. Conway v. Chemical Leaman Tank Lines, Inc., 525 F.2d 927, modified on rehearing, 540 F.2d 837 (5^th Cir. 1976), 55 TEXAS L. REV. 557 (1976).

This note examines the Fifth Circuit’s decision in Conway, in which the court determined that, although evidence of a surviving spouse’s remarriage is inadmissible for the purpose of mitigating damages, its exclusion in a wrongful death diversity action based on Texas law is harmful error.  On retrial, the new Federal Rules of Evidence mandate admission of the evidence for impeachment purposes and perhaps for background or other limited purposes.  Mr. Reynolds concludes by criticizing the court for inventing a legislative intent without referring to the legislative history.  According to the author, in the likely event that no occasion for impeachment arises on retrial, neither the Fifth Circuit’s background evidence rationale nor its Erie-comity rationale provides any sound theoretical basis for admitting evidence of the remarriage.