*2 DUGGAN, SMITH Before JACK HOYT, JJ.
ON MOTION FOR exemplary REHEARING and awarded damages in the $50,000. amount of From the DUGGAN, Justice. entered plaintiff, on the verdict for the opinion January Our issued is Allright urges points of error. following withdrawn and the is substituted. first three of error com- Appellee Carolyn Pearson’s motion to cor- plain closing argument of Pearson’s *3 judgment granted; rect appellant All- jury. These assert that counsel right, rehearing Inc.’s motion for is over- made statements of fact not shown ruled. record, appealed jury’s passion and appeal This is an from a en- prejudice, jury instructed the as to the ef- tered on a negligence verdict answers, fect of its and made side bar awarding exemplary action actual and dam- “improper remarks and jury argument.” ages. appellee, Pearson, The Carolyn was Allright argues that all of this was cumula- a customer of the Rice parking Rittenhouse tively inflammatory and incurable in- garage, operated by appel- which was struction, probably caused the rendi- lant, Inc., Allright, in downtown Houston. improper tion of an verdict. 8, 1980, On Pearson was robbed at However, Allright urges its com gunpoint, and her automobile was stolen conclusions, plaints as and does not cite unattended, from her multistory inside the specific complains statements that of. garage. simply by page Its brief refers us number issues, In special answer the jury pages argument, pointing 37 some of the Allright found that provide failed to ade- every page containing to almost some quate security premises (Special Is- argument. offending This does not meet 2), provide sue No. failed to a safe and showing specific argument the burden of place park secure for Pearson to her car at that constitutes reversible error. 5), garage (Special Issue No. and failed Allright objected four occasions to warn Pearson that would not during jury argument; the court did not provide security day after a certain time of these, rule on three of and overruled 8). (Special Issue No. Each of these omis- accompanying objection fourth and its mo- (Spe- negligence sions was found to be both argu- tion for mistrial. That instance of 3, 6, 9), cial Issues No. and a ruling ment and was as follows: (Special cause of the Is- incident you If PEARSON’S ATTORNEY: don’t 4, 7, 10), sues No. and a heedless and going in this case is your think verdict disregard rights reckless others parking make waves in the com- by Allright’s (Special affected action Issue wrong. munity, you’re dead solid 11). No. The Pear- jury further found that Objection, ALLRIGHT’S ATTORNEY: signed son a written contract with Your Honor. on or about June for her It’s on the PEARSON’S ATTORNEY: in the month of July (Special 1980 Issue damages, Your Honor. punitive issue of 12); No. that Pearson did not read and objection from your THE State COURT: understand the entire contract before the Bar out loud. 13); date of robbery (Special Issue No. Your Hon- ALLRIGHT’S ATTORNEY: had actual or constructive or, instructing Jury of the counsel is knowledge dangerous of a condition exist- answers. Defendant effect of their ing premises on or date before the mistrial, Your Honor. moves for 14). robbery (Special Issue No. is de- THE Motion for mistrial COURT: property damages addition to her min- along. have three nied. Move You $1,578.10, automobile in the amount of utes left. damages found that Pearson suffered concerning improp past general rule physical pain past and future The $36,000, impropriety of anguish jury argument mental er is that amount of
689
allegedly
Smith,
(Tex.Civ.
offensive
statements is waived
Co. v.
563 S.W.2d
666
failure
proper
timely
to make
ob-
App.
writ ref’d
The
— Waco
jection. Standard Fire Insurance Co. v.
operator
premises
of a
has a
to an
Reese,
The
ordinary
keep
invitee
care
to exercise
exception
argument
occurs when the
is so
premises
in a
safe condition
prejudicial
disregard
instruction to
injured.
so
will not
that the invitee
This
would not
prejudice pro-
have removed the
inspect
premises
includes the
Hubbard,
duced. Southern
Co. v.
Pacific
Genell,
discover
conditions.
(1956).
Tex.
Flynn,
Inc. v.
163 Tex.
Instances of incurable
improper
harm from
(1962); Atchison, Topeka
argument
complaining
are rare.
party
Co.,
Railway
Santa Fe
at 666.
(1)
prove:
(2)
first
must
an error
that was
operator
premises
charged
of a
provoked, (3)
not invited or
pre-
that was
knowledge
any dangerous
condition that
by proper objection,
served
a motion to
*4
a
inspection
reasonable
re
would have
instruct,
mistrial,
(4)
or a motion for
vealed,
if a
prudent person
instruction,
was not curable
an
prompt
a
a probability
should have foreseen
that
statement,
withdrawal of the
repri-
or a
injury
condition would result in
to another.
judge.
mand
Standard
Insur-
Fire
Associates,
Bayreuther
v.
Seideneck
Cal
Co., 584
ance
S.W.2d at 839. To be incura-
752,
(Tex.1970);
754
H.E. Butt
error,
ble
complainant
or harmful
must
Newell,
116,
Grocery Co. v.
probability
greater
show that the
1983,
writ).
(T ex.App.—Corpus
Christi
no
118
argument
improper
caused
than
harm
A
operator
duty
business
has the same
grounded
proper
verdict was
on
prevent
of
a
reasonable care to foresee and
proceedings and
evidence.
factors to
injured
being
business invitee from
making
be examined in
such a determina-
persons.
of third
criminal acts
Walkoviak
(1)
argument by
tion include:
whether
Corp.,
v.
623
Hilton Hotels
nature, degree,
its
and extent constituted
(Tex.Civ.App.
[14th Dist.]
i.e.,
error,
long
improper
harmful
how
— Houston
n.r.e.) (hotel
duty
writ ref’d
owe
of
held to
continued,
argument
whether it was re-
adequate
care to provide
reasonable
securi
abandoned,
peated or
and whether there
ty
guest,
to a
who was
beaten
robbed
error; (2)
was
argument’s
cumulative
going
his
night);
to
car on
lot at
probable
finding; and,
on a
effect
material
Barnette,
(Tex.
(3)
Morris v.
690
empty apartment,
technically
Parking,
Dalrymple,
rence.
Inc. v.
in an
according to the Dallas
trespasser,
(Tex.Civ.App.
Court
Antonio
S.W.2d 758
— San
Appeals
Property
v. Mr.
1964, writ);
Nixon
Kentucky Fried
no
McAllen
Co.,
(Tex.
Roebuck &
contentions
We
n.r.e.),
ref d
initially
San Antonio
writ
security, or a
provide
it had no
exchanged
encountered and
threats with
place
park,
or to warn
safe and secure
premises,
inside
their assailants
Sears’
provided
security. Allright’s
no
when it
security employ-
had full-time
where Sears
five,
four,
points
error
and six are over
protect patrons,
ees on
the later
ruled.
plaintiff’s injuries
oc-
altercation and
of error are
next
curred outside Sears’ store
a mall area.
jury found that
evidentiary. The
Thus,
no
Sears was found to have breached
adequate security, failed
provide
failed
duty.
Campos
Texas Bever
South
place
park,
provide
safe and secure
Co.,
(Tex.App.
age
On she arrived at 8:30 a.m. premises the time ty guard on the at parked again and on the seventh level. during garage all that the robbery or hours day, She to work that and had late did public All- open for business. garage p.m. No was return to the until 7:15 Pear- present, right entrances to stated that it did not know that attendant but all security in acceptable standard of premises the mum assailant was on son’s acceptable facility; and that an level robbery. such a time required that there be an at- security garages in Allright’s supervisor of Hous- present security guard tendant or ton, Hudler, by deposition testified Dale open operations. it was garage while garages had six multilevel in that as a minimum se- testified that Waldhuber 1980; Houston in that four of downtown measure, ga- management of such a curity after those had attendants 5:30 patrons if no post notice to rage should p.m.; that the Rice Rittenhouse include such a present, attendant approximately 550 cars and had from held contracts. warning printed in customer paid per 400 to 450 customers $50 daily paid that customers park; month inadequate with the se- He testified that period; in time fixed rate advance July curity of the Rice Rittenhouse garage stayed knew the exits, per- —uncontrolled entrances many of its customers were full and customers duty, and no notice to sonnel on that from female. Hudler further testified was reason- the attendant’s schedule—it impossible persons outside it was to see person on rob- ably that a bent foreseeable levels; single garage’s upper that a levels, enter, upper hide on bery could ground ramp access to above in, persons coming whether lay in wait for levels; booth af- and that the attendant’s had occurred or not such incidents up persons going a clear view of all forded past. ramp. He testified that the or down the these In its discussion of p.m.; that there was attendant left at 5:30 error, little reference to the Allright makes security guard present no attendant or record, it had no knowl argues but p.m.; 8:00 p.m. from 5:30 until before edge of a condition p.m. to open until 8:00 was left previous similar that it had seen parked retrieve persons already allow it was not premises, and that acts on the cars; employee from an- their and that an harm imminent that there was foreseeable gate lock the other location would premises. danger patrons on the p.m. at 8:00 i.e., contrary, testimony to the Waldhuber’s testimony Photographic exhibits anticipa person should have prudent that a stating the attend- sign, showed that occur, was more robbery could that a ted advance, paid in remained ant was to be support the a scintilla of evidence than though no at- p.m., even place after 5:30 pro Allright failed to findings that present. tendant was and secure or a safe adequate security vide Waldhuber, security consultant Robert of no attendant park, or to warn place to protection profes- accredited as a certified hours, such that each after certain *7 In- American Association for sional the and a negligence was omission Security, to the standard dustrial testified robbery. of Pearson’s cause multilevel, enclosed required of care for a 60-62 7-27 and Allright’s points of error parking garage to be safe and overruled. are the patrons. for He testified that secure 59, All- point of error In its related dis- downtown Houston business central danger, any, if in the that the right asserts Square, near Market where the Rice trict obvious, and that open located, garage was garage was con- Rittenhouse garage was knew the she “high admitted in be a crime” Pearson sidered to disagree. While Pearson We area; security dangerous. that even with attendants area that the appreciated that she garage facility such testified a multilevel personnel, garage Rittenhouse Rittenhouse, surrounding the Rice with its four en- as the Rice that not evidence this is exits, dangerous, security problems was posed trances and ga inside the dangerous access; knew it was light- that she of uncontrolled because to care duty of reasonable Allright’s rage. mini- inadequate provide to ing alone was general in adequate garage; policy for still the provide security its invitees were premises the the justify required while on would that attendant wait at the assumption garage gate that the for to invitee’s would five ten minutes. con- place park. guard present be safe to Pearson tends that there testified was on impression ground garage p.m. the level the that was under that an the at 7:15 present robbery. would in garage night attendant he of the This is an keep suspicious looking apparent to out intruders or to a Company reference Shell Oil people, (not parked and that she would not have employee in the basement on the garage floor) garage she had known the ground garage. Although he p.m. was unattended after 5:30 There was helped police, call the was Pearson he not warning that the attendant would Allright, leave job connected with and his was time, Allright’s at a certain company to in only watch Shell cars sign required paid that the attendant be in He employed basement. was not to moni- When advance. Pearson returned to the garage, tor remainder and he safe, garage, appeared to it be and there responsibility had no to watch for intrud- nothing dangerous was to indicate its con- persons authority stop ers. He had no dition. find no evidence We that dan- coming going up into obvious, ger open and Pearson did ramp. not admit she knew of the condi- supports jury’s The evidence Allright’s point tion. is59 over- finding Allright’s omissions were ruled. result of a conscious indifference to its Allright’s points of error 28-30 assert rights customers’ or welfare. jury’s finding that the heedless reck- day attendant told Pearson after the disregard less rights of others is anyone did not have evidence, supported insufficient evi- p.m. it from 5:30 8:00 because dence, against weight or is the great pay did not the attendant’s mini want preponderance of the evidence. Related Carothers, wage mum All- salary. D.M. points of error urge 53-56 that the founder, emeritus, right’s chairman $50,000 punitive damages sup- robbery, consultant at the time of the free ported evidence, by no insufficient evi- ly admitted that no one was on after dence, findings, insufficient and no evi- p.m. 5:30 because there was no need to concerning dence findings deemed of omit- anyone present money to collect have at necessary ted issues punitive damages. relating that hour. The entire decision
Allright argues
present
did
act
reck- whether an attendant would
lessly
failing
adequate
Allright’s garages
evening
maintain
secur-
ity
collecting
for its invitees and that it had conducted
based on the likelihood of
reve
“safety
presented
nue,
apparent
It
studies.”
no evidence
with no
concern
customer
studies, however,
though
safety.
of such
even
one
Carothers testified that
con
supervisors
place
tracting
its
he
customers for a safe
asserted
it,”
parking garages
park,
“checked with a few”
“There’s a limit to
and the limit is
they
longer
protect
being
see what
did to
their custom-
“when there’s no
business
during evening
garage.”
ers
hours.
transacted at the
Allright’s overriding
park-
further
with reve-
contends
concern
nue,
distinguished
ing garage
regularly patrolled.”
“was
from customer safe-
*8
may
during
ty,
This
have been true
hours
is sufficient basis for the
have
operation
p.m.,
heedless and
before 5:30
but the
concluded that
acted with
disregard
rights
supervisor
only protec-
admitted that the
reckless
of others.
Walls,
evening
lights.
Royalty
tion
came from
All- See Burk
Co.
attendants,
(Tex.1981);
right’s
by
p.m.
who
920
Ford Motor Co. v.
came
Nowak,
(Tex.App. Corpus
required
check
S.W.2d 582
up,
to lock
were not
—
patrons
We find the
any late or stranded
Christi
writ ref’d
see whether
is
support
sufficient to
the jury’s
son’s
destroyed,
contract had been
and All-
exemplary damages.
Allright’s
right's
attorney confirmed that
those
through
of error 28
30 and 53 records had been “lost.”
through 56 are overruled.
Allright correctly argues
par
that a
Points of error 31-35 center on Pearson’s
ty
signs
proven
a contract of
content
written
parking
contract for
Allright,
with
content,
is
by
bound
its
provi
whether the
Allright’s
and
claim-that
liability
its
was
not,
sions have
though
been read or
even
limited to
by the
$100
terms of the con-
the terms limit the
liability.
contractee’s
tract.
Allrigkt,
Elledge,
Inc. v.
proved signed that Pearson a contract iden- itself, challenging legal issue and factu- tical to the one contained on the reverse al sufficiency support of the evidence to hang-tag Allright side of the offered on its affirmative answer and contend- exceptions bill of attempted to intro- ing finding against great duce into evidence. Pearson testified di- weight evidence, preponderance of the rectly contract, sign that she did not but supported pleadings. admitted that when Clark handed her a hang-tag, signed she portion of it and Special Issue whether All- No. asked address, name, filled in her and license right knowledge dangerous had condi- of a give number “to them a record of who was existing tion at the on or before the premises.” point Clark did not out date of robbery. The instruction now any liability might clause that have been issue, being questioned, preceded which the back hang-tag, tes- and Pearson advised the to warn portion tified that she never read one. The ga- Pearson of conditions at the signed by. off filled was torn rage could arise had knowl- Allright, Clark and retained and Pear- condition, edge “knowledge son did not disposition know what can be either actual or constructive.” made attorney of it. Her All- was told right during pre-trial All- discovery object failed to at trial to right issue, had no record of a contract the definition or the error Howard, Pearson. All- Carothers admitted that therefore waived. Sudderth right’s (Tex.Civ.App records that would include Pear- . —Amaril *9 that, ref indicating
lo
writ
d
in
The definition as
as
the absence of such
was correct.
relationship,
submitted
operator
“park
of a
parking
duty
lock”
lot or
owes no
Allright again erroneously relies on Ten
precautions
prevent
to take reasonable
nison,
where was held
of
the theft
a customer’s car.
an
duty
owner’s
to warn a
of
licensee
condition
independently
arises
where
at 131. Pearson
operator
or
the owner
Allright’s
had actual knowl
negligent
showed
conduct. All-
edge
Here,
of the condition.
Pearson was
point
right’s
of
42 is
error
overruled.
invitee,
an
not a licensee.
In Corbin v.
43-51,
points
In its
com-
Stores, Inc.,
Safeway
S.W.2d
plains
of damages
of the awards
for Pear-
(Tex.1983),
Supreme
the Texas
Court held
physical pain
anguish
son’s
and mental
in
involving
in
cases
owed
jury’s
Special
answers
Issue
No.
invitee,
premises operator
evidence Allright argues that there was no evidence
knowledge
of
of premises defect can be
support
or insufficient evidence to
either actual
constructive.
suffi
past physical pain;
award for
ciency of the
complaints
are re
precludes
the lack of such evidence
dam-
for,
jected
the reasons
in
summarized
ages
anguish;
mental
that there were
of error 7-27.
points of error
findings
physical pain
of
fact
36-41 are overruled.
anguish;
future mental
Point of error 42 asserts that the trial
awards are excessive and due
inflamma-
awarding
court
in
erred
Pearson the
tory
argument by
Pearson’s counsel.
$1,578.10
car,
repairs
cost
to her
Special Issue No. 16 read:
Special
found in
Issue No.
because no
preponderance
Find
evi-
bailment was created and
“had no
money,
any,
sum
paid
dence what
if
if
regard
with
to the cost
[Pearson]
cash,
fairly
now in
would
repair
Allright argues
her vehicle.”
compensate
if
injuries,
Plaintiff for her
no bailment was created because of the
any,
you
preponder-
which
find from a
“park
arrangement whereby
lock”
ance of the evidence resulted from the
kept
keys
Pearson
her own
and retained
in question.
occurrence
car, citing Allright
control over her
Auto
following
You
ele-
shall consider the
Parks,
Moore,
(Tex.
Inc. v.
damages,
any,
if
ments of
and none oth-
Civ.App.
Antonio
writ ref d n.r.
— San
er.
e.),
Inc.,
and Ragland Allright Parking,
cents,
in
separately
Answer
dollars
(Tex.Civ.App.
I do make of fact not understand Justice opinion [ruling pain anguish, and mental and the awards against bailor-customers (b), (d) (a), dollars in sections constitut- depended presumption relationship] just negligence findings ed affirmative as the the bailment *10 696 (c)
no dollars in section
nega- may
judgment
constituted a
not substitute its
for that of
finding.
tive
jury,
may
jury’s
and it
not disturb the
award in the absence of
showing
a clear
of
There is evidence that Pearson suf
bias,
passion,
prejudice
finding
and a
pain.
physical
fered
She testified that dur
that the
award
so excessive as to shock
ing
and after the
experienced
the conscience of the court. Armellini
physical symptoms
shock;
of anxiety and
Florida,
Express Lines
Inc. v. Ansley,
ill, nauseous,
that she felt physically
short
297,
310 (Tex.Civ.App. Corpus
breath, chilled,
—
trembling;
1980,
n.r.e.). Here,
Christi
writ ref’d
cramps.
Gordon,
she had
Sissy
who ob
exemplary damages were
relat
served Pearson soon
robbery,
after
See
v.
damages.
ed to the actual
Kraus
stated that Pearson
“very
disoriented
Bank,
Alamo National
Pearson would nevertheless be entitled plead contributory negli anguish to recover for mental even if there did not physical pain. gence. was no there evidence evidence of When a Neither was i.e., negligence, guilty gross defendant is Pearson’s conduct contributed to the armed disregard robbery. correctly heedless and reckless of the The trial court refused it, Har rights injured See Harrison v. others affected to submit the issue. rison, anguish (Tex.Civ. party can recover for mental even 597 486-87 S.W.2d any physical injury pain. n.r.e.); in absence of see App. Tyler writ ref’d — See Farmers and Merchants State Bank also Texas Construction Service Co. of (Tex.Civ. Ferguson, 326 Allen, (Tex. Austin v. S.W.2d 1980), App. Worth n.r.e.) App. Corpus Christi writ ref’d reformed — Fort — aff'd, The reh’g); Allright’s (op. Tex.R.Civ.P. found conduct to be a heedless point of error 57 is overruled. disregard rights and reckless of oth Point of error 58 asserts that the trial ers, and we have held in earlier failing “in court erred to enter supports that find error that the evidence against Ronald Brown convicted Lewis [the ing. duly and entered who was served robber] argues the awards appearance personally at trial.” reviewing the were excessive. When point mis damages, general rule on is frivolous and physically will record. Brown was appeal finding is that the states the ground of exces- led into court for identification as the rob be disturbed on the ber, the suit. probative party siveness if but was never a there is appellate court Point of error 58 is overruled. sustain the award. Pearson asserted two cross-points ap- after the occurrence of giv- the incident peal. ing The first complains that did rise cause action. *11 timely file the statement of facts. Be- Accordingly, Id. prejudgment at 555. in- granted, cause extensions the filing were $36,578.10 terest is portion ordered on the timely, appellee’s cross-point first judgment representing the combined is overruled. damages past physical pain awards of for ($5,000), anguish ($30,000), past mental cross-point complains Pearson’s second ($1,578.10). property damage of the trial court’s exclusion of evidence The general incident made the basis of manager was Pearson’s cause of on gunpoint robbed action occurred at in a downtown Houston Therefore, prejudgment 1980. inter- parking lot years prior three to Pearson’s computed period est allowed is to be for the robbery. Pearson asserts this commencing date, six from months probative evidence that had knowl- January of judg- until date edge potentially dangerous condi- ment, May tions in the Rice garage. Rittenhouse Prejudgment in interest this is to be case The trial court reasonably could computed at percent per the rate of 10 conclude that the present conditions in an annum, in with accordance article 5069-1.- open-air parking equated lot could not be (1984). Tex.Reg. 05 and 9 a parking garage those of at a remote time. $36,578.10 on percent per Interest at 10 The court trial did not abuse its discretion annum, compounded daily, based on a 365- by excluding evidence, this and Pearson’s day year, period for January from cross-point second is overruled. May $14,641.17; until totals this of prejudgment amount interest is add- Appellee Pearson has filed a mo $87,578.10 ed judgment, resulting in tion with this judg Court reform the $102,219.27, judgment a reformed which interest, ment prejudgment to include applicable post- will bear interest provided for in Quality Cavnar v. Control judgment legal per percent rate of 10 an- Inc., Parking, 554-556 (1984). Tex.Reg. num. 9 agree We that this reformation is appropriate, and the motion reform As prejudgment reformed to include in- granted. terest, judgment is affirmed. that, holds Cavnar J., HOYT, dissents. law, prevailing as a matter of plain- HOYT, dissenting. Justice may
tiff prejudgment recover interest (based compounded daily a 365-day on respectfully majority’s I from dissent year) damages have accrued appellant Allright, denial of Inc.’s motion judgment. time To the extent rehearing. disagreement My centers that other cases conflict with this hold- damages around the awarded and I believe ing, they Prejudgment are overruled. that, justice, rehearing in interest prevailing interest shall accrue at the proper damages would be because the rate that exists on the date patently improp- awarded are excessive and according to provisions rendered er as a of law. matter Tex.Rev.Civ.Stat.Ann. art. 5069-1.05 sec. specific my disagreement focus of (Vernon Supp.1985). Special arises and 17. out of Issues No. 16 (footnote (emphasis original) Id. at 554 in Special inquired: Issue No. 16 omitted). opinion further directs that the evi- preponderance Find from a wrongful person- if money, any, paid death and dence sum if non-death what cases, begin cash, injury fairly
al interest shall now would pecuniary non-pecuni- if compensate injuries, accrue both Plaintiff her ary damages any, you preponder- from date six months which find
anee of the evidence resulted from the tal state was stressed because she was in question. occurrence occasionally fear and feared for her future safety keys because her were following You shall consider the taken. ele- damages, if any, ments of and none oth- policy Public dictates that certain stan- er. respected dards the award of dam- separately Answer in dollars and ages especially the uncertainty where as to cents, any, respect to each of the damages might the amount be re- following elements: open up covered would an unlimited field of (a) Physical pain litigation. Western Union Telegraph Co. Answer: 5,000.00 past. $ Chamberlain, 370, (Tex.Civ. 169 S.W. *12 (b) anguish Mental 1914, App. writ). For these — Austin Answer: past. $30,000.00 (c) reasons, general rule of common law which Physical pain in reasonable damages exists that purely for mental suf she will probability fering unaccompanied by bodily pain are suffer in the future. Answer: .00 $ not recoverable. Id. The (d) anguish Mental which in reasonable $5,000 $31,000 physical pain for she will probability is, therefore, anguish mental without foun suffer in the future. Answer: 1,000.00. $ dation in the facts and is erroneous as a matter of law. It is well established that the law will support recovery physical bodily in- Likewise, $50,000 the award of for exem- shock, produced by or illness fear or plary damages is erroneous because there when the fear or injury shock and the proof is no damages. of actual See Traw negligent illness are results of Co., 460, eek v. Martin Brown 79 Tex. part person conduct on the sought (1890). Exemplary damages S.W. held liable. Company Sutton Motor v. reasonably apportioned should be Crysel, 289 S.W.2d 634 (Tex.Civ.App. damages actual sustained. Moore’s Inc. v. writ). —Beaumont Without a Garcia, 604 261 (Tex.Civ.App.— S.W.2d showing physical injury or mental there Corpus Christi writ ref d And can be no recovery anguish, for mental showing damages, without a of actual ex anguish because mental gen must have its emplary damages are not recoverable. physical injury. esis in a or mental South foregoing appellant’s For the reasons Cook, Telephone western Bell Co. v. rehearing granted. motion for should be (Tex.Civ.App Worth . —Fort ref’d). anguish writ is Mental poignant keen and suffering which results great grief;
from some and hence mere
disappointment, fear, or shock not men anguish.
tal Damages may Id. also be awarded for anguish mental caused PORTER, Appellant, Leon Calvin fear, where showing there disease all probability medical is im pending as a result negligence. Dartez Texas, Appellee. The STATE of Corporation, Fiberboard 765 F.2d No. 05-85-01008-CR. (5th Cir.1985). Texas, Appeals Court of
Appellee testified that at the time that Dallas. assailant, she was accosted she felt stomach, nauseous, sick to her short of April breath, began trembling shaking all Although over. symptoms these of fear trauma,
could injury result no physical
occurred; appellee admitted. Her men-