Dorsett v. Houston Electric Co.

• Decision Date: 20 December 1945
• Docket Number: No. 11758.,11758.
• Citation: 191 S.W.2d 514
• Parties: DORSETT v. HOUSTON ELECTRIC CO.
• Court: Texas Court of Appeals

191 S.W.2d 514

DORSETT v. HOUSTON ELECTRIC CO.

No. 11758.

Court of Civil Appeals of Texas. Galveston.

December 20, 1945.

Rehearing Denied January 10, 1946.

Appeal from District Court, Harris County; Phil D. Woodruff, Judge.

Action by Selma Dorsett against the Houston Electric Company to recover for injuries allegedly sustained as the result of the negligent operation of a bus. From a judgment of dismissal, the plaintiff appeals.

Judgment reversed and cause remanded.

Helm & Jones, of Houston, for appellant.

Baker, Botts, Andrews & Wharton, Wm. M. Ryan, and J. Curtiss Brown, all of Houston, for appellee.

MONTEITH, Chief Justice.

This action was brought by appellant, Selma Dorsett, for the recovery of damages for injuries alleged to have been sustained by her as a result of the negligent operation of a bus driven by an employee of appellee, Houston Electric Company, which caused her to suffer great emotional upset and shock which were accompanied by bodily injuries and damages and which resulted in the death of her mother. Appellant alleged that the bus did not come in contact with her body but that, by reason of the effect of her experience on the occasion of the accident, she was placed in fear of great bodily harm and suffered an emotional upset which made it necessary for her to be placed under the care of physicians for many months; that she was unable to work for a period of approximately a year and that, as a natural consequence thereof, she has suffered from extreme nervousness, severe headaches, lapse of memory, and from brain deterioration.

Appellee answered by a general denial and by eleven special exceptions which were directed at appellant's petition, in which it was alleged, among other grounds, that: (1) Appellant's petition shows that recovery is sought for fright and that under the law liability may not be imposed for fright; (2) that the damages claimed by appellant were so remote and speculative as not to constitute a recoverable element of damages; (3) that the alleged simple negligence on the part of the bus operator could not have been a proximate cause of any damages; (4) that the damages claimed by appellant were not, as a matter of law, foreseeable; and (5) that no facts were alleged showing immediate physical injury to have been sustained by appellant, but that, on the contrary, it appeared that she was only alleged to have sustained fright and emotional upset.

All of these exceptions were sustained by the trial court and, upon appellant's declining to amend, the suit was dismissed, from which judgment this appeal is prosecuted.

It is the established law in Texas that there may be no recovery from mere fright which is neither attended nor followed by any other injury (Wedgworth v. City of Fort Worth, Tex.Civ.App., 189 S.W.2d 40; Laney v. Rush et al., Tex.Civ. App., 152 S.W.2d 491, and authorities there cited; Gulf, C. & S. F. R. Co. v. Trott, 86 Tex. 412, 25 S.W. 419, 40 Am.St.Rep. 866), but that recovery may be had in a proper case where a physical injury results from a fright or other mental shock which is caused by the wrongful act or omission of another, provided the act or omission is the proximate cause of the injury and the injury ought, in the light of all the circumstances, to have been foreseen as a natural and probable consequence thereof. Gulf, C. & S. F. R. Co. v. Hayter, 93 Tex. 239, 54 S.W. 944, 945, 47 L.R.A. 325, 77 Am.St.Rep. 856. The Supreme Court, in the case of Gulf, C. & S. F. R. Co. v. Hayter, supra, stated in its opinion that, as a general rule, "these questions should be left to the determination of the jury."

The Fort Worth Court of Civil Appeals, speaking through Chief Justice McDonald, in the case of Wedgworth v. City of Fort Worth, supra, has made the following comprehensive analysis of the Texas cases involving recovery for damages for injuries alleged to have resulted from fright or other mental shock caused by the wrongful act or omission of another:

"In all of the Texas cases where recovery was allowed, there was a physical injury resulting from the fright, and the wrongful act of the defendant was of such a nature that a jury might have found that the defendant ought, in the light of all the circumstances, to have foreseen that the injury might result therefrom. In Hill v. Kimball, supra [76 Tex. 210, 13 S.W. 59, 7 L.R.A. 618], the defendant assaulted two negroes in the presence of the plaintiff's wife, knowing that the latter was...