Houston Electric Co. v. Dorsett

Decision Date15 May 1946
Docket NumberNo. A-821.,A-821.
Citation194 S.W.2d 546
PartiesHOUSTON ELECTRIC CO. v. DORSETT.
CourtTexas Supreme Court

Action by Selma Dorsett against the Houston Electric Company to recover for injuries allegedly sustained by plaintiff as result of the negligent operation of a bus by an employee of defendant while plaintiff was crossing a street. From a judgment of dismissal, the plaintiff appealed to the Court of Civil Appeals. To review a judgment of the Court of Civil Appeals, 191 S.W.2d 514, reversing the judgment and remanding the cause, the defendant brings error.

Judgment of the Court of Civil Appeals affirmed.

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

Helm & Jones and Albert P. Jones, all of Houston, for respondent.

SHARP, Justice.

This case presents the question whether respondent can recover damages against petitioner for injuries alleged to have been sustained by her as a result of the negligent operation of a bus driven by an employee of petitioner, which caused the bus to narrowly miss striking respondent, who was with her mother, and under such circumstances that respondent was thereby caused to be greatly shocked and frightened, resulting in physical injury to her, although there was no contemporaneous physical impact.

Selma Dorsett filed this suit against the Houston Electric Company for damages on account of negligence on the part of one of the Company's employees in operating a bus on the streets of Houston. The trial court sustained special exceptions to respondent's petition and, upon her declining to amend, the suit was dismissed. The Court of Civil Appeals at Galveston reversed the judgment of the trial court, and remanded the cause for a new trial. 191 S.W.2d 514. This Court granted an application for writ of error in order to review the question involved in the case.

Respondent alleged that on the evening of September 26, 1943, she was walking across a street in the City of Houston in a careful and prudent manner "in company with her deceased mother"; that as they were crossing the street a bus approached which was being driven in a negligent manner; that the bus narrowly missed striking respondent, under such circumstances that she was caused to suffer great emotional upset, shock and fright, resulting in the derangement of her nervous system; and that as a result of such incident she suffered from extreme nervousness, severe headaches, lapse of memory, and brain deterioration. The bus did not come in contact with respondent's body, and while at the time respondent seemed to be in a state of great shock, that was the only physical evidence of her injuries.

Prior to the above-mentioned incident respondent had been employed for years as a switchboard operator, and had been earning a substantial salary. After such incident she was compelled to remain away from her work for approximately a year; and although she has gone back to work, she has been advised by her physician that probably it will be necessary for her to discontinue such work because of her nervous disorders and brain deterioration.

During the argument before this Court it was stated as a fact that respondent's mother was fatally injured at the time. The opinion of the Court of Civil Appeals states that the negligent act of the bus driver resulted in the death of respondent's mother. That matter, however, does not appear in the record.

Petitioner presented several special exceptions to respondent's petition, and contended that she had not alleged a cause of action, principally for the following reasons: (1) Petitioner's bus did not come in contact with respondent, and she seeks to recover damages for fright, and under the law petitioner is not liable for damages caused by fright; (2) the damages claimed were too remote and speculative to permit a recovery thereon; (3) the alleged simple negligence of the bus driver could not have been a proximate cause of any damage; (4) the damage claimed by respondent was not, as a matter of law, foreseeable; and (5) no facts were alleged showing respondent sustained any physical injury, and her claim for damages rests solely upon the ground of fright and shock. The trial court sustained the exceptions urged by petitioner.

The question involved here has been the subject of much discussion, and perhaps no other rule in the law of torts has been the source of such a divided conflict of decisions.

The reasons urged for denying this kind of an action are various. It is urged that, since the law allows no recovery for fright, it can give none for the results of fright. It is contended that fright is regarded as a mental and not a physical state, and therefore no recovery should be allowed. The principal reasons urged against the right to maintain an action predicated upon a mental or emotional disturbance, unaccompanied by any physical injury, are as follows: (1) That such claims are regarded as outside the wise policy of the law, and should be denied for practical reasons; (2) that the injury is too remote and speculative, and not the proximate result of the wrongful act; and (3) that the injury is vague and uncertain, and can be simulated, and too much advantage rests with the injured party in proving such injury, and the difficulty in disproving same.

In the first cases in which this rule was involved, the question being a novel one, the courts gave a strict application of the rule. In 1888 a New York court, in the case of Lehman v. Brooklyn City R. Co., 47 Hun, N. Y., 355, 14 N.Y.St.Rep. 575, said that it was "unable to find either principle or authority for the maintenance of this action." An English court in 1888, in the case of Victorian Railways Comrs. v. Coultas, 13 App. Cas. 222, 58 L.T.(N.S.) 390, said, "It is remarkable that no precedent has been cited of an action similar to the present having been maintained, and their Lordships decline to establish such a precedent." See also the following cases: Ewing v. Pittsburgh, C., C. & St. L. Ry., 147 Pa. 40, 23 A. 340, 14 L.R.A. 666, 30 Am.St.Rep. 709; Ward v. West Jersey & S. R. Co., 65 N.J.L. 383, 47 A. 561.

The Supreme Court of Texas was one of the first courts to give this rule a more liberal application. In 1890 this Court, in the case of Hill v. Kimball, 76 Tex. 210, 13 S.W. 59, 7 L.R.A. 618, took a...

To continue reading

Request your trial
26 cases
  • Duncan v. Cessna Aircraft Co.
    • United States
    • Texas Supreme Court
    • February 15, 1984
    ...Instead of needing to prove facts excluded on a bill of exception, the rule is that pleadings are taken as true. Houston Elec. Co. v. Dorsett, 145 Tex. 95, 194 S.W.2d 546 (1946). In the past this court has remanded causes for trial in cases involving an erroneous dismissal of a cause, holdi......
  • City of Tyler v. Likes
    • United States
    • Texas Supreme Court
    • February 13, 1998
    ...which produces a serious bodily injury, the defendant is liable for that injury provided it was foreseeable, see Houston Elec. Co. v. Dorsett, 145 Tex. 95, 194 S.W.2d 546 (1946) (plaintiff suffered "brain deterioration" after almost being struck by a bus); Hill v. Kimball, 76 Tex. 210, 13 S......
  • Boyles v. Kerr
    • United States
    • Texas Supreme Court
    • May 5, 1993
    ...recovery for fatigability, lack of energy, various aches and pains, and disinclination to activity); Houston Electric Co. v. Dorsett, 145 Tex. 95, 194 S.W.2d 546, 546 (1946) (physical manifestation shown by "extreme nervousness, severe headaches, lapse of memory and brain deterioration"). S......
  • Hopper v. United States
    • United States
    • U.S. District Court — District of Colorado
    • July 30, 1965
    ...R. Co., 52 S.C. 323, 29 S.E. 905, 40 L.R.A. 679 (1890); Sternhagen v. Kozel, 40 S.D. 396, 167 N.W. 398 (1918); Houston Electric R. Co. v. Dorsett, 194 S.W.2d 546 (Tex. 1946); Cherry v. General Petroleum Co., 172 Wash. 688, 21 P.2d 520 (1933); Lambert v. Brewster, 97 W.Va. 124, 125 S.E. 244 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT