*1 judgment contained a form recitation demanded, jury that no GARRARD, ux, Appellants, et James stated, “pled guilty docket sheet to the court.” found that this amount- HOSPITAL, ST. ELIZABETH et ed to a silent record and held that the State al., Appellees. had failed to meet its constitutional burden establishing jury waiver of trial. at Id. No. 09-85-055 CV. 315. Appeals Court of here, But we are not faced with a silent Beaumont. response appellant’s In record. motion conviction, supporting to strike the April 1986. evidence, objec- into State offered Rehearing 7,May Denied 1986. tion, copy a certified of the docket sheet relating conviction. The docket stamped “jury

sheet was with the notation by person defendant in

waived and writ-

ing.” correctly hold that

We trial court appellant’s sup-

denied motion to strike the

porting conviction.

Appellant’s ground first of error is over-

ruled.

Appellant’s ground final of error

contends that the trial court erred grant quash his motion to the indictment

for failure to state an offense. pertinent part, alleges

In the indictment appellant appropriate acquiring “did exercising prop- otherwise control over

erty”. Appellant’s specific complaint is allege the indictment

appellant appropriate acquiring “did exercising proper-

otherwise control over

ty.”

It is well-settled that the omission of a

word or words an indictment not fatal part

if that omitted is not essential to the

certainty necessary description

the offense and does not affect the mean- State,

ing. Ansley v. 468 S.W.2d

(Tex.Crim.App.1971). We find that

wording sufficient to of the indictment was theft, despite the

allege the offense of “by”, preposition

omission of the and we ground appellant’s final of error.

overrule is af- judgment of the trial court

firmed.

572

ic negligence acts of committed hos- pital pathologist. The Garrards sought damages anguish. for mental exceptions of the defendants alleged the had plead any Garrards act, or gross intentional willful negligence, contract, breach of injury or a Rugg, Thomas F. & Rugg, Reinstra cause of action under the wrongful death Beaumont, appellants. for statute, thus, Garrards, survival and Chamblin, Mehaffy, Patricia D. Weber having only plead anguish arising mental Gonsoulin, Keith & Cleve Bachman and out negligence action, cause of had not Curry Cooksey, Orgain, Tucker, Bell & stated a cause of action which relief Beaumont, appellees. for granted. could be When the court spe sustains OPINION cial exceptions for state cause action, plaintiff of can refuse to amend BURGESS, Justice. and appeal. test the court’s on Fur Mr. and brought Mrs. James Garrard thermore, for purposes appeal, of initially against suit Hospital allegations of plaintiff’s petition must alleging negligence gross negligence. and be as City true. Hubler v. of petition Their first amended added Dr. H.R. Corpus Christi, (Tex.Civ. Wilcox and Dr. Dave Frueh as defendants App. Corpus Christi writ ref’d n.r. — dropped allegations gross negli- and e.). gence punitive and their for claims dam- Our court has held that Sanchez v. ages. A petition second amended dis- Schindler, (Tex.1983), 651 249 S.W.2d au Dr. alleged missed Frueh and recovery anguish thorized the for mental specific specific acts of negligence and ele- proof physical injury without or conduct damage. ments of negligence. Baptist Hospital worse than Thereafter, remaining two defend- Baber, v. Southeast Inc. 672 special exceptions ants filed contending the (Tex.App. S.W.2d 296 — Beaumont Garrards state a claim for also, granted). writ See Missouri Pacific granted. which relief could be Vlach, (Tex.App. R. Co. v. 414 S.W.2d exceptions and, on sustained the re- 1985, writ). —Houston [14th Dist.] fusal of the to further appellees argue Sanchez plaintiff’s petition. dismissed the distinguishable in because of the death plaintiff’s petition argument carry volved and their alleged that admitted to Mrs. Garrard was Baptist Hospital. San over to anticipated specifically chez states: delivery of At the her second child. time plaintiff permitted “A delivery, it discovered that Mrs. was prove damages resulting from a tort- A carrying Garrard was twins. male in- negligent feasor’s infliction of emotional born A healthy. fant was alive female This in- trauma. [Citation omitted] attending physi- infant was still-born. The anguish.” cludes agreed cian and the father to have an au- limiting language This does not have a topsy performed body of the still- on recognized clause. We believe Sanchez infant. At some time after deliv- born tort of emotional prior ery, autopsy, body but trauma does not a death mortuary the infant was delivered to a involved. unmarked, grave disposed of in an common knowledge Supreme Court or consent of the Should our re-examine alleged light, is an specif- then in a different Garrards. Sanchez possession of the nor he ever have did exception additional Garrards stillborn child. cause of have stated a action. Classen (Tex.Civ.App. Benfer, 144 S.W.2d — San Petition Second cor.), judgmt. Antonio writ dism’d alleges that Dr. Wilcox [sic] involving a body was a case loss to insure *3 a upheld a re-interment and present the his lab. Under delivered to only damages actual were the where the that Dr. Wilcox pleadings, I would not hold resulting pain ones from mental and suf anis insurer. fering. exception, an We concur with such on the majority, apparently, relies therefore, We, if there one. sus need be plead in alter- a can the doctrine that points and three tain of error numbers one agree. allegations in the I native. point and do not reach of error number mutually destructive. pleadings tested are plaintiff's dismissing The order the two. Land Bank v. Dallas Joint Stock Colbert is reversed Dallas, 129 Tex. the cause is remanded for trial. Ass’n, (1937); Barry v. Screwmen’s Benev. AND REMANDED. REVERSED (1887); 3 S.W. 261 Rowe Tex. (1885); Horton, Tex. 89 TEX.R.CIV.P. BROOKSHIRE, Justice, concurring and Hence, 47(a). I 45(b) and TEX.R.CIV.P. dissenting. only as the would affirm trial court’s Dr. Wilcox. only I concur results reached opinion, majority the as to St. Elizabeth hospital the contends that Hospital. Respectfully, I from the dissent damages for an- money recovery of concerning Dr. H.R. Wil- opinion Court’s resulting loss of guish, from the that, when trial majority cox. states infant, cannot be based stillborn exceptions court sustains disagree. simple negligence. Appellees I to state a cause of action and there is a recovery must be such a maintain that allegations refusal conduct, willful on intentional or based ap- true on accepted must be contract, or gross negligence, breach peal. Ap- injury. personal, physical type some recovery is such a pellees also concede that pleaded unequivocally damages pursu- as an element allowable in Wrongful Death or Survival ant to failing to deliver the stillborn infant correctly decides majority Statutes. pathological laboratory fail- of action lies that a cause au- ing notify laboratory that an anguish and emotional of mental topsy signed. The ma- consent been injury. distress without certainly allega- these jority has against hospital as true. tions ordered, I remand has been Since a Appellants to re- also that, allegation There another after is Hospital and the doc- plead. infant, body was deliv- the birth of the notice of that fair tor are entitled Mortuary by hospi- ered to Broussard’s against. TEX.R. they must defend informing No plaintiffs. tal without pleadings, CIV.P. 47- allegation was ever exists Dr. Wilcox en- 45 and will with Rules accordance allegation No possession infant. more to make diligent judge able the pleaded that he notified had been and will rulings on the evidence informed perform autopsy an a consent to spe- drafting to him in very helpful allega- unequivocal signed. Under cial issues. by major- being accepted as true tions— held no violation of ity —it alleged against responsibility duty is any pleadings, present doctor. Under allegation alleging that the doc- plaintiffs— in contact tor was with ever