# Boyles v. Kerr

> Texas Supreme Court · May 5, 1993 · 36 Tex. Sup. Ct. J. 874

URL: https://www.frixlaw.com/law-library/cases/9666885

## Case

- **Full name:** Dan BOYLES, Jr., Petitioner, v. Susan Leigh KERR, Respondent
- **Court:** Texas Supreme Court
- **Decided:** May 5, 1993
- **Citations:** 36 Tex. Sup. Ct. J. 874; 855 S.W.2d 593; 1993 Tex. LEXIS 58; 1993 WL 141516
- **Precedential status:** Published
- **Opinion:** Concurring in part by Cook
- **Judges:** Phillips, Cook, Gonzalez, Doggett, Gammage, Spector, Mauzy
- **Cited by:** 518 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9666885

## How later opinions describe it (automated extraction)

- recognizing that “the right to compensation for a recognized tortious injury should not depend upon whether it is inflicted for the purpose of harming the injured party or negligently inflicted with the likelihood of harming the injured party. Thus, the basis for liability in …
- stating courts “should uphold the petition as to a cause of action that may be reasonably inferred from what is specifically stated, even if an element of the cause of action is not specifically alleged”
- noting that mental anguish is not recoverable in an action for negligent misrepresentation
- recognizing that trial by consent can occur where it is clear from the record that issues allegedly not raised by the pleadings are tried by the express or implied consent of the parties
- noting that in absence of special exception, petition should be construed liberally in favor of pleader and that court should “uphold the petition as to a cause of action that may be reasonably inferred from what is specifically stated, even if an element of the cause of actio…

## Opinion text

COOK, Justice,
concurring and dissenting.
[Filed Dec. 2, 1992.]
I concur with the holding of the majority. I write separately, however, because I find the court’s opinion confusing and inconsistent in many respects. I must clarify my own positions on these important issues.
The court’s opinion leads to confusion between a cause of action and damages. In some sections, the court refers to a “cause of action for negligent infliction of emotional distress.” Elsewhere, the court refers to “emotional distress” as an element of damages. Another section refers to “mental anguish damages.”
The confusion in terminology is understandable, given the various labels our judiciary has applied to causes of action for emotional distress and the element of damages. Lack of precision in terms, however, should not be allowed to obscure the difference between the cause of action and the element of damages or the exact effect of today’s decision. The cause of action we reject today is the general negligent infliction of emotional distress, once called negligent infliction of mental anguish in St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649 (Tex.1987). What we do not disturb in the court’s opinion is the status of damages. Damages for mental anguish are still recoverable in Texas, as the result of many torts. Furthermore, such damages need not be proved by physical manifestation. In my view, St. Elizabeth was correct to drop the physical manifestation requirement to recover damages for mental anguish.
I decline to join in any part of the court’s opinion which discusses a cause of action for intentional infliction of emotional distress. The court has reached beyond the questions presented in this case to discuss intentional infliction within its discussion of a possible cause of action for gross negligence. The discussion is. unnecessary and confuses the issue.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9666885. Public record. Not legal advice.