dissenting:
I dissent only from the denial of the award, based upon a jury verdict, of mental anguish damages. It seems clear to me that the Supreme Court of Texas would not forbid, as a matter of law, the recovery by the wife of these damages.
In several recent decisions, the Texas Supreme Court has indicated its displeasure with longstanding barriers to recovery of damages for mental anguish. In Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983), the court overruled extensive precedent and allowed recovery of mental anguish damages by wrongful death plaintiffs. In Moore v. Lillebo, 722 S.W.2d 683 (Tex.1986), the court held that in such wrongful death actions the plaintiff need not show a physical manifestation of his or her mental anguish. Most recently, and most significantly for this case, the Texas Supreme Court has extended these rulings by holding that “proof of physical injury is no longer required in order to recover for negligent infliction of mental anguish.” St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649 (Tex.1987), reh’g denied, 30 Tex.Sup.Ct.J. 479 (June 17, 1987).
Unlike the majority, I read Garrard as unambiguously signalling the Texas court’s desire to abandon all artificial restrictions on mental anguish recovery, including the bystander test used by the majority to defeat Mrs. Harmon’s claim. That test, followed in recent years by intermediate Texas courts, holds that mental anguish suffered by a person as a result of injury to another is not foreseeable unless the person actually observed the injury-producing conduct. See, e.g., Landretk v. Reed, 570 S.W.2d 486 (Tex.Civ.App. — Texarkana 1978, no writ); Jannette v. Deprez, 701 S.W.2d 56, 61 (Tex.App. — Dallas 1985, writ ref’d n.r.e.). As the majority opinion demonstrates, the bystander test operates mechanically to deny recovery as a matter of law without any further inquiry into the foreseeability of the plaintiff’s injury. The Texas Supreme Court, however, has never explicitly adopted this test and Garrard leads me inescapably to the conclusion that the Texas court would grant Mrs. Harmon recovery despite her absence from the scene of the accident.
In abandoning the physical manifestation requirement, the Texas court, noted that “[djevelopment and administration of the tort [of negligent infliction of mental distress] have been inconsistent and confusing.” 730 S.W.2d at 651. It announced its desire to “insure the public is free from unwarranted restrictions on the right to seek redress for wrongs committed against them,” id. at 654 and decried the physical manifestation requirement as just such an “arbitrary restraint,” id. at 651. The court approvingly observed that the seminal Texas case on negligent infliction of mental anguish, Hill v. Kimball, 76 Tex. 210, 13 S.W. 59 (1890), had, with the exception of requiring a physical manifestation, granted recovery for mental anguish “using traditional tort concepts.” Garrard, 730 S.W.2d at 652.1 This analysis — especially in light of a narrower ground for decision2 — is strong evidence that the Texas court would not refuse recovery to a spouse of a seriously injured person on the sole ground that the spouse did not actually observe the accident. Inasmuch as the Texas court would allow Mrs. Harmon to recover had her husband died as a result of *261the accident, see Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983), I believe the Texas court would view application of the bystander limitation in this case as just the kind of arbitrary restriction it condemned in Garrard.3
Distinctions exist, of course, between a plaintiff who viewed the accident and one who did not, and between a plaintiff whose loved one died and one whose loved one survived. It is more likely, and thus in a sense more foreseeable, that the plaintiff who actually witnessed the accident will suffer a serious mental injury. Similarly, death of a loved one is in many cases more traumatizing than even a serious injury to a loved one. I do not suggest that no rational basis exists for cutting off liability when the plaintiff did not witness the accident and no death ensued. I am persuaded, however, that the Texas court would view these distinctions as insufficient to justify a rule mechanically precluding recovery to persons who can demonstrate a real mental injury. In expanding recovery for mental anguish, the court has not focused on narrow distinctions but has instead emphasized the reality of emotional injuries and condemned legal rules that artificially restrict recovery for such injuries. To state that witnesses to an accident often suffer mental injury is not to deny that severe mental anguish also is suffered by the person who receives the dreaded phone call that her spouse has been injured in a car accident. Nor does the trauma of death diminish the reality of seeing a loved one endure the pain and suffering of a severe and lingering injury. Again, I note that Mrs. Harmon would be granted recovery had her husband died from the accident. I think the Texas court would view her emotional injury as no less real, and no less foreseeable, simply because her husband survived the accident.
. The plaintiff in Hill, of course, observed the injury occur and this was a factor in the determination that her injuries were proximately caused by the defendant’s conduct. In discussing Hill, however, the Garrard court emphasized that the proximate cause decision was based solely on ordinary tort principles. 730 S.W.2d at 652 ("The single deviation [in Hill ] from traditional tort principles involved the element of damages.”). It is apparent, then, that the Texas court does not view Hill as imposing any mechanical limitation on the foreseeability determination.
. As a separate opinion in the case noted, 730 S.W.2d at 654-655 (Spears, J., concurring and dissenting), Garrard could have been decided on the ground that Texas has never required a physical manifestation when the defendant’s wrongful conduct was mishandling a corpse. See Classen v. Benfer, 144 S.W.2d 633 (Tex.Civ. App. — San Antonio 1940, writ dismissed judgmt cor.).
. Even before Garrard, commentators on Texas law suggested that Sanchez signalled the Texas court’s willingness to award mental anguish damages in some circumstances even though the plaintiff did not witness the accident. Cantu, Negligent Infliction of Emotional Distress: Expanding the Rule Evolved Since Dillon, 17 Tex.Tech.L.Rev. 1557, 1570-76 (1986); Powers, Annual Survey of Texas Law: Torts — Personal, 38 Sw.L.J. 1, 31-32 (1984); Note, Texas Bystander Recovery: In the Aftermath of Sanchez v. Schindler, 35 Baylor L.Rev. 883, 894 (1983). Indeed, the last of these commentators advocates a "pure negligence” approach to determining liability in cases such as this. 35 Baylor L.Rev. at 899-901. This case, however, does not require a definition of the ultimate scope of the right to recover for negligent infliction of mental anguish in Texas. I only say that Texas would not deny Mrs. Harmon recovery for mental anguish merely because she did not witness the accident and her husband did not die from the accident.