dissenting.
I respectfully dissent from the majority’s opinion because I believe the court should overturn its longstanding decisions and authorize recovery for mental anguish without proof of physical injury in a simple negligence case.
Various reasons have been advanced for the unwillingness to redress mental injuries in a simple negligence case. One is the difficulty of measuring the damages. “Mental pain or anxiety,” said Lord Wens-leydale in the parent of a long line of decisions in 1861, “the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone.” Lynch v. Knight, 9 H.L.C. 577, 598; 11 Eng.Rep. 854, 863 (1861). Insofar as the generalization may be true, it can hardly be based upon the reason indicated, namely, that mental suffering is too subtle and speculative to be capable of measurement by any standard known to the law. That a plaintiff’s recovery must be in money damages need cause us little more difficulty in cases of emotional disturbance than in any other instance of non-peeuniary loss — the pain of a shattered leg, the loss of reputation from a defamation, the loss of liberty from false imprisonment — none of which has been denied compensation. E.g., Goodrich, “Emotion Disturbance as a Legal Damage,” 20 MICH.L.REV. 503, 509 (1921); Magruder, “Mental and Emotional Disturbance in the Law of Torts,” 49 HARV.L.REV. 1033 (1936); Prosser, “Intentional Infliction of Mental Suffering a New Tort,” 37 MICH.L.REV. 874, 875 (1939).
The established rule of damages set forth in the RESTATEMENT (SECOND) OF TORTS, § 47(b) (1965) states:
Where the actor’s tortious conduct in fact results in the invasion of another legally protected interest, as where it inflicts bodily harm, or imposes a confinement, emotional distress caused either by the resulting invasion or by the conduct may be a matter to be taken into account in determining the damages recoverable. In many instances there may be recovery for emotional distress as an additional, or “parasitic” element of damages in an action for such a tort.
As long ago as 1906, legal scholars remarked upon this phenomenon. One called such damages “parasitic,” and ventured a prediction which has proved to be true: “The treatment of any element of damages as a parasitic factor belongs essentially to a transitory stage of legal evolution. A factor which is today recognized as parasitic will, forsooth, tomorrow be recognized as an independent basis of liability.” STREET, FOUNDATIONS OF LEGAL LIABILITY, 470 (1906); Prosser, supra at 88; Goodrich, supra at 510; Magruder, supra at 880. The negligent infliction of mental anguish is in the process of becoming a cause of action in itself, just as the intentional infliction of such damages became an independent cause of action.
Protection has already been afforded to mental tranquility in a variety of situations. For example, large sums of money have been recovered as damages for false imprisonment, though the detention was of a short duration and involved no damage *776other than annoyance and indignity. Gadsden General Hospital v. Hamilton, 212 Ala. 531, 103 So. 553 (1925). Damages have also been recovered for injuries to feelings in defamation cases, where no special damage is alleged, even though the reputation has not been hurt by the publication. McArthur v. Sault News Printing Co., 148 Mich. 556, 112 N.W. 126 (1907); Louisville Press Co. v. Tennelly, 105 Ky. 365, 49 S.W. 15 (1899).
Just as mental tranquility has been protected, mental suffering has long been a recognized element of damages. In many cases, mental distress has often been the only substantial damage. Tennelly, 49 S.W. at 15. The tendency remains, however, to find or include some other basis for the action — however strained — and to disguise the real basis of recovery under another name. Consequently, the courts have allowed substantial sums to be recovered as damages for shock, fright, humiliation, and other forms of “mental anguish” whenever accompanied by physical injury.
The “physical injury” may include inhalation of smoke, electric shock, dust in the eye, and similar trivialities. Morton v. Stack, 122 Ohio St. 115, 170 N.E. 869 (1930); Hess v. Philadelphia Transportation Co., 358 Pa. 144, 56 A.2d 89 (1984); Porter v. Delaware, L. & W.B. Co., 73 N.J.L. 405, 63 A. 860 (Sup.Ct.1906) (respectively). When the requisite physical injury is found, full recovery is allowed; the damages are not limited to the physical injury. Thus, in the instant case, had Mrs. Zondler fallen to her knees upon learning of her husband’s death, bruising them, she would be entitled to fully recovery the $300,000.00 the jury awarded her to redress her mental anguish. This is absurd.
Allowing damages as described above should end the argument that adjusting compensation is impossible and that awarding damages for mental anguish without physical injury is too speculative to be recognized as a legally protected interest. There is no reason to resort to such subterfuges. It is time to abandon them and to rest the action upon its real ground.
We have already started to see a departure from physical injury being a requisite for recovery for mental anguish. One of the early decisions rejecting a physical injury requirement was the Hawaii case, Rod-rigues v. State, 52 Haw. 156, 472 P.2d 509 (1970). Following the rationale of that decision, the California Supreme Court agreed that the “unqualified requirement of physical injury is no longer justifiable.” Molien v. Kaiser Foundation Hospitals, 27 Cal.2d 916, 167 Cal.Rptr. 831, 616 P.2d 813, 820 (1980). In Molien, while recognizing that the physical injury rule is still followed by most courts, the court stated that the arbitrary distinction between physical and psychological injury “clouds the issue”; the real question is one of proof. Jurors are capable of determining from their own experiences whether and to what extent a plaintiff has sustained emotional distress as a result of the defendant’s conduct. Molien, 616 P.2d at 821.
The Supreme Court of Arkansas has approved sizeable amounts for mental anguish alone. Pitts v. Greene, 382 S.W.2d 904 (Ark.1964); Tiner v. Tiner, 379 S.W.2d 425 (Ark.1964); Peugh v. Oliger, 345 S.W.2d 610 (Ark. 1961). In none of these cases was there more evidence of mental anguish shown than in the Pitts case, a case involving the wrongful death of a 17-year-old girl. The mother testified that she went to pieces and had to go to work since she couldn’t stay at home, that she was unable to work and had to leave town several times, but nothing helped. The nurse drew a “touching picture” of how the mother acted while visiting the hospital, indicating excessive grief. The father’s anguish was indicated by the showing that he was visibly upset while testifying — his face was contorted and it was hard for him to make audible. answers. Pitts, 382 S.W.2d at 909. The court held it was within the province of the jury to fix the pecuniary remuneration to compensate the parents for the grief of the loss of their daughter. Pitts, 382 S.W.2d at 909.
Texas courts have begun to recognize mental anguish as an independent basis of *777liability. The Supreme Court of Texas, in the case of Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983), in dicta, authorized recovery for mental anguish absent proof of physical injury or conduct worse than negligence. In the case of Baptist Hospital of Southeast Texas v. Baber, 672 S.W.2d 296 (Tex.Civ.App. — Beaumont 1984, reh. den.), the Beaumont Court of Appeals followed the Supreme Court by holding, “We believe Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983), has now authorized the recovery for mental anguish without proof of physical injury or conduct worse than negligence.” Baptist Hospital, 672 S.W.2d at 299. For disapproving cases see, e.g., Speier v. Webster College, 616 S.W.2d 617 (Tex.1983); Duncan v. Luke Johnson Ford, Inc., 603 S.W.2d 777 (Tex.1980); Brown v. American Transfer & Storage Co., 601 S.W.2d 931 (Tex.1980); Hill v. Kimball, 76 Tex. 210, 13 S.W. 59 (Tex. Comm’n App.1929, holding approved).
While it is clear that there are conflicting cases regarding the recovery of damages for mental anguish without proof of physical injury, this but indicates that the law on this subject is in a transitory stage. I believe we should adopt the trend that does not rely on the absurdity of requiring a physical injury. Having recognized the value of a peaceful mental state, the law should remedy any wrong to that state, for it is the business of the law to remedy deserving wrongs.
The danger that a host of meritless claims will be brought is no reason to deny recovery for any genuine, serious mental injury. As Chief Justice Holt said as long ago as 1703: “It is no objection to say that it will occasion multiplicity of actions; for if men will multiply injuries, actions must be multiplied too; for every man that is injured ought to have his recompense.” Ashby v. White, 2 Ray on Ld 938, 955, 92 Eng.Rep.R. No. 126, 137 (KB 1703).
No rule which results in the denial of a legal remedy in all cases should be retained simply because in some cases a fictitious injury may be urged or a difficult problem of proof presented. Consequently, I would affirm the jury award of damages for mental anguish absent proof of physical injury.