The opinion
BROOKSHIRE, Justice,
concurring and dissenting.
I concur only in the results reached by the majority opinion, as to St. Elizabeth Hospital. Respectfully, I dissent from the Court’s opinion concerning Dr. H.R. Wilcox. The majority states that, when a trial court sustains special exceptions for failure to state a cause of action and there is a refusal to amend, the allegations of the plaintiffs’ must be accepted as true on appeal.
The plaintiffs unequivocally pleaded that St. Elizabeth Hospital was negligent in failing to deliver the stillborn infant to the pathological laboratory and in failing to notify the laboratory that an autopsy consent had been signed. The majority has certainly accepted these allegations against the hospital as true.
There is another allegation that, after the birth of the infant, the body was delivered to Broussard’s Mortuary by the hospital without informing the plaintiffs. No allegation exists that Dr. Wilcox was ever in possession of the infant. No allegation had been pleaded that he was notified that a consent to perform an autopsy had been signed. Under these unequivocal allegations — being accepted as true by the majority — it should be held that no violation of any responsibility or duty is alleged against the doctor. Under the present pleadings, there is no allegation alleging that the doctor was ever in contact with the plaintiffs— nor did he ever have possession of the stillborn child.
The plaintiffs’ Second Amended Petition [sic] alleges that Dr. Wilcox was negligent in failing to insure that the body was delivered to his lab. Under the present pleadings, I would not hold that Dr. Wilcox is an insurer.
The majority, apparently, relies on the doctrine that a party can plead in the alternative. I agree. The allegations in the tested pleadings are mutually destructive. Colbert v. Dallas Joint Stock Land Bank of Dallas, 129 Tex. 235 , 102 S.W.2d 1031 (1937); Barry v. Screwmen’s Benev. Ass’n, 67 Tex. 250 , 3 S.W. 261 (1887); Rowe v. Horton, 65 Tex. 89 (1885); TEX.R.CIV.P. 45(b) and TEX.R.CIV.P. 47(a). Hence, I would affirm the trial court’s ruling only as to Dr. Wilcox.
However, the hospital contends that a recovery of money damages for mental anguish, resulting from the loss of the body of a stillborn infant, cannot be based on simple negligence. I disagree. Appellees maintain that such a recovery must be based on intentional or willful conduct, gross negligence, breach of contract, or some type of personal, physical injury. Ap-pellees also concede that such a recovery is allowable as an element of damages pursuant to the Wrongful Death or Survival Statutes. The majority correctly decides that a cause of action lies for the negligent infliction of mental anguish and emotional distress without a physical injury.
Since a remand has been ordered, I would also require the Appellants to re-plead. St. Elizabeth Hospital and the doctor are entitled to fair notice of that of which they must defend against. TEX.R. CIV.P. 45 and 47- Amended pleadings, in accordance with Rules 45 and 47, will enable the diligent trial judge to make more informed rulings on the evidence and will be very helpful to him in drafting the special issues.