Garrard v. St. Elizabeth Hosp.

• Decision Date: 10 April 1986
• Docket Number: No. 09-85-055,09-85-055
• Citation: 708 S.W.2d 571
• Parties: James GARRARD, et ux, Appellants, v. ST. ELIZABETH HOSPITAL, et al., Appellees. CV.
• Court: Texas Court of Appeals

Page 571

708 S.W.2d 571

James GARRARD, et ux, Appellants, v. ST. ELIZABETH HOSPITAL, et al., Appellees.

No. 09-85-055 CV.

Court of Appeals of Texas Beaumont.

April 10, 1986.

Rehearing Denied May 7, 1986.

Thomas F. Rugg, Reinstra & Rugg, Beaumont, for appellants.

Patricia D. Chamblin, Mehaffy, Weber Keith & Gonsoulin, Cleve Bachman and Curry Cooksey, Orgain, Bell & Tucker, Beaumont, for appellees.

OPINION

BURGESS, Justice.

Mr. and Mrs. James Garrard brought suit initially against St. Elizabeth Hospital alleging negligence and gross negligence. Their first amended petition added Dr. H.R. Wilcox and Dr. Dave Frueh as defendants and dropped allegations of gross negligence and their claims for punitive damages. A second amended petition dismissed Dr. Frueh as a party and alleged specific acts of negligence and specific elements of damage.

Thereafter, the remaining two defendants filed special exceptions contending the Garrards had failed to state a claim for which relief could be granted. The court sustained these exceptions and, on the refusal of the plaintiffs to further amend, dismissed the plaintiff's petition.

The plaintiff's second amended petition alleged that Mrs. Garrard was admitted to St. Elizabeth Hospital for the anticipated delivery of her second child. At the time of the delivery, it was discovered that Mrs. Garrard was carrying twins. A male infant was born alive and healthy. A female infant was still-born. The attending physician and the father agreed to have an autopsy performed on the body of the still-born infant. At some time after the delivery, but prior to the autopsy, the body of the infant was delivered to a mortuary and disposed of in an unmarked, common grave without the knowledge or consent of the Garrards. The petition then alleged specific acts of negligence committed by the hospital and the pathologist. The Garrards sought damages for mental anguish.

The special exceptions of the defendants alleged the Garrards had not plead any intentional or willful act, gross negligence, breach of contract, physical injury or a cause of action under the wrongful death or survival statute, and thus, the Garrards, having only plead mental anguish arising out of a negligence cause of action, had not stated a cause of action upon which relief could be granted.

When the trial court sustains special exceptions for failure to state a cause of action, a plaintiff can refuse to amend and test the court's ruling on appeal. Furthermore, for the purposes of appeal, the allegations of the plaintiff's petition must be accepted as true. Hubler v. City of Corpus Christi, 564 S.W.2d 816 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.).

Our court has held that Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983), authorized the recovery for mental anguish without proof of physical injury or conduct worse than negligence. Baptist Hospital of Southeast Texas, Inc. v. Baber, 672 S.W.2d 296 (Tex.App.--Beaumont 1984, writ granted). See also, Missouri Pacific R. Co. v. Vlach, 687 S.W.2d 414 (Tex.App.--Houston [14th Dist.] 1985, no writ).

The appellees argue that Sanchez is distinguishable because of the death involved and their argument would carry over to Baptist Hospital. However, Sanchez specifically states:

"A plaintiff should be permitted to prove the damages resulting from a tortfeasor's negligent infliction of emotional trauma. [Citation omitted] This includes recovery for mental anguish."

This language does not have a limiting clause. We believe Sanchez recognized the tort of negligent infliction of emotional trauma and does not require a death to be involved.

Should our Supreme Court re-examine Sanchez in a different light, there is an additional exception on which the Garrards have stated a cause of action. Classen v. Benfer, 144 S.W.2d 633 (Tex.Civ.App.--San Antonio 1940, writ dism'd judgmt. cor.), was a case involving the loss of a body upon a re-interment and upheld a recovery where the only actual damages were the ones resulting from mental pain and suffering. We concur with such an exception, if there need be one. We, therefore, sustain points of error numbers one and three and do not reach point of error number two. The order dismissing the plaintiff's second amended petition is reversed and the cause is remanded for trial.

REVERSED AND REMANDED.

BROOKSHIRE, Justice, concurring and dissenting.

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