# Allright, Inc. v. Pearson

> Texas Court of Appeals, 1st District (Houston) · April 24, 1986 · 711 S.W.2d 686

URL: https://www.frixlaw.com/law-library/cases/9641626

## Case

- **Full name:** ALLRIGHT, INC., Appellant, v. Carolyn PEARSON, Appellee
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** April 24, 1986
- **Citations:** 711 S.W.2d 686; 1986 Tex. App. LEXIS 11943
- **Precedential status:** Published
- **Opinion:** Dissent by Hoyt
- **Judges:** Duggan, Smith, Hoyt
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Allright, Inc. v. Pearson, 30 Tex. Sup. Ct. J. 431 (1987).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9641626

## Opinion text

HOYT, Justice
dissenting.
I respectfully dissent from the majority’s denial of appellant Allright, Inc.’s motion for rehearing. My disagreement centers around the damages awarded and I believe that, in the interest of justice, a rehearing would be proper because the damages awarded are patently excessive and improper as a matter of law.
The specific focus of my disagreement arises out of Special Issues No. 16 and 17. Special Issue No. 16 inquired:
Find from a preponderance of the evidence what sum of money, if any, if paid now in cash, would fairly and reasonably compensate Plaintiff for her injuries, if any, which you find from a preponder- *698 anee of the evidence resulted from the occurrence in question.
You shall consider the following elements of damages, if any, and none other.
Answer separately in dollars and cents, if any, with respect to each of the following elements:
(a) Physical pain in the past. Answer: $ 5,000.00
(b) Mental anguish in the past. Answer: $30,000.00
(c) Physical pain which in reasonable probability she will suffer in the future. Answer: $ .00
(d) Mental anguish which in reasonable probability she will suffer in the future. Answer: $ 1,000.00.
It is well established that the law will support recovery for physical or bodily injury or illness produced by fear or 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. Sutton Motor Company v. Crysel, 289 S.W.2d 631, 634 (Tex.Civ.App.—Beaumont 1956, no writ). Without a showing of physical or mental injury there can be no recovery for mental anguish, because mental anguish must have its genesis in a physical or mental injury. Southwestern Bell Telephone Co. v. Cook, 30 S.W.2d 497, 499 (Tex.Civ.App.—Fort Worth 1930, writ ref’d). Mental anguish is that keen and poignant suffering which results from some great grief; and hence mere disappointment, fear, or shock is not mental anguish. Id. Damages may also be awarded for mental anguish caused by fear, where there is evidence showing that a disease in all medical probability is impending as a result of negligence. Dartez v. Fiberboard Corporation, 765 F.2d 456 , 467 (5th Cir.1985).
Appellee testified that at the time that she was accosted by the assailant, she felt sick to her stomach, nauseous, short of breath, began trembling and shaking all over. Although these symptoms of fear could result in trauma, no physical injury occurred; as appellee admitted. Her mental state was stressed because she was in fear and occasionally feared for her future safety because her keys were taken.
Public policy dictates that certain standards be respected in the award of damages especially where the uncertainty as to the amount of damages that might be recovered would open up an unlimited field of litigation. Western Union Telegraph Co. v. Chamberlain, 169 S.W. 370 , (Tex.Civ.App.—Austin 1914, no writ). For these reasons, the general rule of common law exists that damages for purely mental suffering unaccompanied by bodily pain are not recoverable. Id. The jury’s award of $5,000 for physical pain and $31,000 for mental anguish is, therefore, without foundation in the facts and is erroneous as a matter of law.
Likewise, the award of $50,000 for exemplary damages is erroneous because there is no proof of actual damages. See Traweek v. Martin Brown Co., 79 Tex. 460 , 14 S.W. 564 (1890). Exemplary damages should be reasonably apportioned to the actual damages sustained. Moore’s Inc. v. Garcia, 604 S.W.2d 261 (Tex.Civ.App.—Corpus Christi 1980, writ ref d n.r.e.). And without a showing of actual damages, exemplary damages are not recoverable.
For the foregoing reasons appellant’s motion for rehearing should be granted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9641626. Public record. Not legal advice.