# Witty v. American General Capital Distributors, Inc.

> Texas Court of Appeals, 1st District (Houston) · July 3, 1985 · 697 S.W.2d 636

URL: https://www.frixlaw.com/law-library/cases/9671965

## Case

- **Full name:** Kimberly WITTY, Individually and as Surviving Parent of Baby Witty, a Nonborn Child, Appellant, v. AMERICAN GENERAL CAPITAL DISTRIBUTORS, INC., Appellee
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** July 3, 1985
- **Citations:** 697 S.W.2d 636; 1985 Tex. App. LEXIS 6765
- **Precedential status:** Published
- **Opinion:** On rehearing by Evans
- **Judges:** Evans, Cohen, Dunn
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed by Witty v. American General Capital Distributors, Inc., 30 Tex. Sup. Ct. J. 244 (1987).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9671965

## Opinion text

MOTIONS FOR REHEARING
EVANS, Chief Justice.
In support of its contention that the Workers’ Compensation Act constitutes a bar to the plaintiffs common-law action, the defendant cites as additional authority Bailey v. American General Insurance Co., 154 Tex. 430 , 279 S.W.2d 315 (1955).
Bailey is distinguishable, because in that case, the employee’s mental anguish resulted from fear for his own safety, not for that of another person.
There, the employee, who suffered only minor injuries when he narrowly missed falling from a high scaffold, claimed worker’s compensation benefits for the mental anguish resulting from his fright. The Texas Supreme Court held only that the claimant sustained an “injury” within the meaning of the worker’s compensation statute.
We recognize that the Workers’ Compensation Act constitutes a bar to Mrs. Witty’s claim for damages based upon the emotional distress she allegedly sustained as a result of her own injuries. But we hold that the Act does not preclude Mrs. Witty’s claims for emotional distress that were related to the injury of her baby. If the law were as the defendant contends, we foresee shockingly unjust results. For example, in a multiple-deaths case, a mother who had just seen her entire family killed due to her employer’s negligence, could not recover either common-law or statutory damages for her mental anguish, if the negligent act occurred while she was working in the course and scope of her employment for a worker’s compensation subscriber. Surely, as we noted in our original opinion, the legislature did not intend to preclude such relief when it enacted the workers’ compensation law.
It is the court’s holding, as set forth in the majority opinion, that Mrs. Witty, in her individual capacity, has alleged causes of action at common law and under the wrongful death statute that are not barred by the Texas Workers’ Compensation Act. The only difference of opinion between the writers of the majority and the concurring opinions is whether the Texas Supreme Court’s decision in Yandell v. Delgado precludes Mrs. Witty’s damages claim, asserted on behalf of her unborn child, for her child’s prenatal pain and suffering, his funeral and burial expenses, and any other damages that she might be entitled to recover as her deceased child’s representative. In this respect, the majority does not consider the viability of the injured child to be an issue.
We have considered all arguments advanced by the plaintiff and the defendant in their respective motions for rehearing, and all are overruled.
DUNN, J., concurs and dissents.
COHEN, J., dissents.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9671965. Public record. Not legal advice.