The appellee, E. R. Crysel, who will also be referred to as plaintiff, sued Sutton Motor Company and M. J. Porter for damages because of personal injuries which he alleges his wife sustained and because of damage done his automobile when, on August 21, 1954, in the city of Beaumont, his automobile, which he was driving, was in collision with a motor vehicle (a light wrecker) which was owned by Sutton Motor Company and was being driven by Porter. On a jury’s special-issue verdict, judgment was rendered in favor of plaintiff against defendants, jointly and severally, for the sum of $10,788.45. The defendants have duly perfected their appeal, and have brought forward twelve points of alleged error.
Except for point twelve, which pertains to the argument of counsel, the points all focus, in one way or another, on the nature and extent of the personal injuries to plaintiff’s wife. They require determination of whether the law supports recovery for the' kind of injuries Mrs. Crysel is claimed to have sustained, of whether the court’s charge regarding Mrs. Crysel’s injuries and the elements to be considered by the jury in assessing damages because of them was correct, and of whether, assuming compensable injuries to have been shown, the damages awarded because of them are excessive.
The evidence failed to show that as a result of the collision Mrs. Crysel sustained-physical injury in the sense of a laceration, contusion, fracture, sprain; or similar damage to what is perhaps commonly thought of as the physical structure of the body. However, there was evidence to show that she was badly frightened by the occurrence at the time and that some'four days later — on Wednesday following the Saturday of the collision — she commenced j to experience recurring nervous seizures which were accompanied by severe headaches, dizziness, crying spells, irritability, pains in her back, and strange mental sensations that caused her to fear that she was losing her mind. These seizures having continued to recur at frequent intervals for several days, Mrs. Crysel finally, on September 3, 1954, submitted herself to the care of a neurologist and psychiatrist. / *634 She was subsequently placed in a hospital and kept there for a week, and she took medicine over a period of several months. I Her condition was diagnosed as a neurotic reaction, a nervous disorder of the reactive-depressive type, and we think the jury was at liberty to conclude from the evidence that such condition was brought about by the fright Mrs. Crysel experienced at the time of the collision. There was evidence to show that the nervous disorder has disabled Mrs. Crysel from performing many of her normal household activities and has caused her to experience both physical and ( mental pain and distress.
Upon the theory that Mrs. Crysel had not been shown to have suffered a com-pensable injury, defendants moved for an instructed verdict on that phase of the case and also objected to the submission to the jury of a special issue pertaining to such damages. Both the motion and the objection were overruled, and each of these rulings is now assigned as error.
We think the rulings were correct. It is well established in this jurisdiction that the law will support recovery for physical or bodily injury or illness produced by fear or mental shock, when the fear or shock and the injury or illness are proximate results of negligent conduct on the part of the person sought to be held liable. Hill v. Kimball,
In response to special issues one and two the jury found that Mrs. Crysel was “injured” in the collision. In submitting the issues the court neither defined nor undertook to define the word “injury” or the word “injured”, and refused to give the following definition, which was requested by the defendant: “By the term ‘injury’ as used in the court’s charge, is meant dam *635 age or harm to the physical structures of the body. You are further instructed that fright alone does not constitute an injury as that term is used in the court’s charge.” Refusal to give such definition is assigned as error.
Assuming that under the facts of the particular case the trial court should have defined the word “injury” or the word “injured”, still no reversible error is presented by its refusal to give the definition the defendants requested, unless that definition was substantially correct. Rule 279, Texas Rules of Civil Procedure; Havens v. Guetersloh, Tex.Civ.App.,
Three separate damage-issues were submitted to the jury. One of these pertained to automobile damage; one, to medical and hospital expense; and the other, to damages, other than medical and hospital expense, resulting from Mrs. Crysel’s personal injuries. The last mentioned issue, special issue No. 28, was as follows:
“What do you find from a preponderance of the evidence to be the sum of money, if any, if paid now ift cash, would fairly and reasonably compensate the plaintiff for the injuries, if any, to his wife, Mrs. Doris Crysel, proximately caused (if you have so found) by the negligence, if any, of defendant M. J. Porter on the occasion in question ?”
In connection with such issue the jury were instructed that, in arriving at the amount of damages to be assessed, they might consider “only such, if any, of the following items” as had “been established by a preponderance of the evidence to have been proximately caused plaintiff * * * by the negligence, if any, of the defendant,” towit: (1) loss, up to trial time, of Mrs. Crysel’s “capacity to work and perform household duties”; Mrs. Crysel’s diminished capacity to work and to perform her household duties in the future. (2) Physical pain and suffering theretofore experienced by Mrs. Crysel and thereafter to be experienced by her. (3) Mental anguish theretofore suffered, -and thereafter to be suffered, by Mrs. Crysel.
The jury, in response to the issue, assessed damages in the amount of $10,375.
The following objections to the charge were made by defendants in writing, were duly presented and were overruled:
“(J) The defendants further object to Special Issue No. 28 and the court’s instructions in connection therewith, because the court does not instruct the jury that they cannot award damages for fright alone, unconnected with any physical injury; and the defendants here and now request the court to prepare and submit in writing such instruction to guide the jury in answering Special Issue No. 28.”
“(K) Said issue as framed in connection with the court’s instruction, is too broad, in that the jury is authorized to award damages for mere fright not connected with any physical injury, and the jury should be properly instructed that fright alone is not an element for which damages can be awarded.”
In addition to urging such objections, defendants also prepared and requested the court to submit the following special instructions, each of which was refused:
*636 1. “In connection with Special Issue No. 28 of the court’s charge, you are instructed that you cannot take into consideration or award damages for fright alone unaccompanied by any physical ■ injury and not causing or producing any physical injury.”
2. “In connection with Special Issue No 28 of the court’s charge, you are instructed that you cannot allow any damages arising solely and alone from fright, if any; and that fright alone, not connected with any physical injury, is not an element for which you can award damages.”
. 3. “In connection with Special Issue No. 28 of the court’s charge, you are instructed that you cannot allow any damages merely because of fright (if any) which Doris Crysel may have sustained or which she may sustain in the future.”
4. “You are instructed in connection with Special Issue No. 28 that you may not take into consideration or award damages arising solely by reason of fear or anxiety, if any, experienced by Doris Crysel by reason of her concern as to the safety of her children.”
We recognize the validity of the rule which appellants sought by said objections and requested instructions to have the trial court apply: the rule that there can be no recovery for mere fright which is neither attended nor followed by any other injury. Gulf, C. & S. F. Ry. Co. v. Hayter,
In so far as the elements of damage properly to be considered by the jury are concerned, and as regards the form of the court’s charge relative thereto, there should be no difference, and there is none, so far as we are aware, between a case in which the medium of injury is fright and one in which the medium of injury is physical impact. Such difference as there is between the two types of cases lies in what must be proved before damages are recoverable at all, rather than in the elements for which recovery may be had after the right of recovery is established. In other words, the rule of law which appellants sought to have applied in connection with the damage issue is one by which to test whether a cause of action exists or has been proved, and it has nothing to do with the amount recoverable. The proper manner in which to have applied it would have been by special issues — submitting pertinent questions of fact — designed to ascertain whether there was liability; or, possibly, by a correct definition of the word “injury”, submitted in connection with an issue designed to ascertain whether the plaintiff had sustained injury as a proximate result of defendants’ negligence. .
If the basic, objective fright which Mrs. Crysel experienced could in no event have been properly considered by the jury as an element of damage, then, of course, it would have been proper, and we think necessary in the circumstances, for the court, by explanatory instruction given in connection with the damage issue, to have instructed the jury that they could not, assess any damages because of the fright; but we do not understand the law to be that the basic fright is in no event to be considered as an element of damage. On the contrary, we understand the law to be
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that, once the requisite consequences of fright are shown, so as to establish a com-pensable injury, and presupposing negligence and proximate cause, the basic fright does become an element of damage to be considered by the jury, as a part of the mental anguish suffered by the injured party. This is implied in the language in which the primary rule of law with which we are dealing was originally expressed by the Supreme Court in the case of Gulf, C. & S. F. Ry. Co. v. Hayter, supra [
Such being the law, and since there was, as we have held, sufficient evidence to require submission of the case to the jury, the plaintiff was entitled, as against the obj ections and requested instructions now under consideration, to have the explanatory instructions with reference to damages given in the form and manner in which they were given, and without any exception or qualification as regards the basic fright that was experienced by Mrs. Crysel.
We have previously pointed out that no reversible error is presented by a trial court’s refusal of requested definitions or explanatory instructions that are not substantially correct, and we should be disposed, on this basis alone, to overrule such of appellants’ points as complain of the refusal of the . requested instructions that are under consideration; because we think that, in order to have been correct, the instructions would also have had to contain the converse of the respective propositions contained in them — i. e., would have h?.d to instruct the jury regarding the circumstances under which they might assess dam
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ages for the basic fright and its consequences. However, it appears to be established that, since the court gave some explanatory instructions in connection with the damage issue, a proper objection pointing out the failure of such instructions to exclude fright from the jury’s consideration would have been sufficient to preserve the point, had it been incumbent on the court to give such an instruction. Rule 274, T.R.C.P.; Yellow Cab & Baggage Company v. Green, Tex.,
For the reasons indicated, we overrule appellants’ points three, five, six, and seven. However, before finally quitting the subject, we suggest, in added support of our holding, that it would likely prove to be exceedingly difficult, if not impossible, to give, in connection with the damage issue, a correct and sufficiently comprehensive application of the basic law involved, without, at the same time, running afoul of the rule against general charges in connection with special-issue submissions, the rule against charging on the weight of the evidence, or some kindred rule.
Upon the theory that there was no evidence to show diminution of Mrs. Crysel’s capacity to work and perform her household duties in the future or that in reasonable probability Mrs. Crysel would experience either physical pain or mental anguish in the future, the defendants objected to those portions of the court’s charge which authorized the jury to take these elements of damage into consideration. The objections were overruled, and those rulings are respectively assigned as error.
We have carefully considered the evidence and have concluded that it was sufficient to require the giving of the instructions that are complained of. Appellants’ points eight through ten are accordingly overruled. Partly because the case is to be reversed on another ground, and partly because we can see no good reason for burdening this opinion with it, we forego setting out the evidence on which our conclusions are based
By their eleventh point, appellants complain that the damages which plaintiff recovered because of Mrs. Crysel’s personal injuries — i. e., the sum of $10,375 the jury assessed in response to special issue No. 28 — are .excessive and without support in the evidence. The point is overruled. The award is no doubt on the liberal side, but, the evidence as a whole considered in the light of the applicable rules of law, we do not feel called upon to hold that the jury abused their discretion in assessing the amount they did. Once again, in view of the disposition that is to be made of the case, we see no point in detailing and analyzing the evidence which bears on the matter.
In his closing argument, Mr. Sanders, one of plaintiff’s attorneys, addressed the following remarks to the jury:
“Now, gentlemen, if this was a suit on a fire insurance contract, to recover proceeds of a policy and it was proved that that house was worth $25,000, there is nobody on this jury that would hesitate in awarding a verdict for $25,000. Now, gentlemen, are you going to say that property rights are more sacred than human rights ? I say to you again, gentlemen, we have shown and we have proved by the evidence that this young lady has been damaged far in excess of $25,000.”
Appellants, by their twelfth point, assign as error the failure of the trial court to *639 grant them a new trial because of said argument. In their motion they set up, for the first time, that the argument constituted error because it improperly injected into the trial the matter of insurance.
We think the argument strongly intimated or impliedly suggested not only that the defendants were to some extent insured against loss from plaintiff’s suit but that they were insured to the extent of $25,000. We therefore hold that under the established rule in this state it constituted error. See: Kuntz v. Spence, Tex.Com.App.,
If we were disposed to hold, as appellee urges we should, that it is commonly known that because of prevailing laws most automobile owners now have public-liability-insurance coverage and that jurors must be presumed to take for granted that such coverage exists in favor of any given defendant, and that for this reason a suggestion of the existence of such insurance should no longer be held to be reversible error, we think we should still be unable to presume that jurors may be assumed also to know the amount of coverage a particular defendant has. And, as we have already stated, we think the argument in this instance was calculated to suggest that the defendants were insured to at least the extent of $25,000.
Appellee urges that by failing to object to the argument and move for a mistrial at the time the argument was made,
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the defendants waived the error; We are unable to agree that this is so. We think that any curative measures that might have been attempted, by either the court or counsel for plaintiff, could only have served to accentuate and magnify the prejudicial effects of the argument. In such circumstances, the rule is that the error is not waived by a failure to object and move for a mistrial at the time, and the argument may be complained or for the first time by motion for a new trial. Ramirez v. Acker,
In view of our holding that the error was of the “incurable” type, we quote the following from Wade v. Texas Employers’ Ins. Ass’n, supra, in aid of our conclusion that the argument constituted reversible error: “If the argument was not of the ‘curable’ type, not only would it be presumably prejudicial in its effect on the jury, but also it would justify the aggrieved party both in forbearing to object at any stage of the trial and in withdrawing any request he may have made for a ‘curative’ instruction (as respondent did in the instant case.)” (Emphasis supplied.)
The judgment of the trial court is reversed and the cause is remanded for a new trial.