THE COURT’S CHARGE
(Revision No. 2)
Walter P. Wolfram, Sr.
(rev. August 8, 2000)
1885 – Mental Anguish Implied From Illness or Injury Accompanied By Physical Pain –In T&P Railway Co. v. Curry, 64 Tex 85 (Tex 1885), (1) the Texas Supreme Court opined that “it is contrary to common experience and the laws of man’s existence and nature that any sane, healthy and robust person by physical injuries may be made a cripple for life in a matter affecting his health, comfort or capacity, without mental pain resulting from the changed condition. No proof is required to be made of those things which every person is presumed to know and, as it is not required that proof be made of a fact necessarily resulting from facts proved, then it is not necessary to allege resulting fact, for it is understood to be averred by the averment of the facts from which it necessarily results. [citing cases].” In Turner v. McKinney, ((Tex.Civ.App.) 182 S.W. 431, 435, writ ref.), [citing T&P Railway Co., supra], it was held: “We think the evidence above quoted sufficiently shows physical pain and mental suffering up to the time of the trial, and that the plaintiff will probably suffer mental anguish and physical pain in the future. Mental suffering will be implied from illness, or injuries, accompanied by physical pain.” Followed in Applebaum v. Michaels, 384 S.W.2d 148,152 (Tex.Civ.App. – Texarkana 1964, n.r.e.) Thus, in those cases where there was a physical injury, no proof was needed beyond the injury itself as it was implied that mental anguish followed a physical injury. It follows that no definition of mental anguish was needed in those cases.
1953 – Rejection of Intentional Infliction of Mental Anguish Unless Relating to Other Actionable Tort – In Harned v. E-Z Finance Co., 254 S.W.2d 81 (Tex. 1953) the Texas Supreme Court refused to adopt the “new Tort” of intentional interference with peace of mind which permits recovery for mental suffering in the absence of resulting physical injury or an assault and battery but did recognize the well-established rule that mental suffering is compensable in suits for willful torts which are recognized as torts and actionable independently and separately from mental suffering or other injury. The intentional infliction of mental anguish was a separate ground of recovery was rejected. The need for a definition of mental anguish was irrelevant.
1967 – Mental anguish Damages Recoverable in Willful Torts Absent Physical Injury – In Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 630 (Tex. 1967) the Texas Supreme Court re-affirmed its prior holdings that “mental suffering is compensable in suits for willful torts ‘which are recognized as torts and actionable independently and separately from mental suffering or other injury.'” This holding was followed in Billings v. Atkinson, 489 S.W.2d 858, 861 (Tex. 1973) with the development that “damages for mental suffering are recoverable without the necessity of showing of actual physical injury in a case of willful invasion of the right of privacy because the injury is essentially mental and subjective, no actual harm done to the plaintiff’s body.” (Emphasis supplied). The court was progressing toward an intentional infliction of mental anguish tort but at this point limited the recovery to those cases where there was an actionable tort independent of the mental anguish. No effort was made to define mental anguish or set forth its attributes.
1979 – “Mental Anguish” Defined – In Trevino v. Southwestern Bell Telephone Company, 582 S.W.2d 582, 584 (Tex.Civ.App. – Corpus Christi 1979, no writ) the Court of Civil Appeals undertook to define mental anguish. The court rejected a damage claim for mental anguish where the plaintiff never testified about mental suffering, pain of or humiliation occasioned by the willful and wrongful conduct of the telephone company. The court cited the Billings case and held:
The term “mental anguish” implies a relatively high degree of mental pain and distress. It is more than mere disappointment, anger, resentment, or embarrassment, although it may include all of these. It includes a mental sensation of pain resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair and/or public humiliation.
This case is followed in Cronin v. Bacon, 837 S.W.2d 265, 269 (Tex. App. – Ft. Worth 1992, writ denied). There the Court of Appeals opined that jurors are deemed best able to determine the existence of the pecuniary value of mental anguish by reference to their own experience. Having said that the court undertook to place limitations on the broad delegation of jury discretion by defining the term “mental anguish.”
“Mental anguish” as an element of damages implies a relatively high degree of mental pain and distress; it is more than mere disappointment, anger, resentment, or embarrassment, although it may include all of these, it includes mental sensation of pain resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair and/or public humiliation. (p. 269).
Anger is clearly not enough to recover for mental anguish. . . . The subjective mental symptoms to which plaintiff testified reflect no more than mere vexation, frustration, or anger.
It is unlikely that the Cronin court has provided a finite definition of “mental anguish” sufficient for use in a court’s charge. Any attempt t use the principles propounded in the Cronin case, clearly constitute a comment on the weight of the evidence because it would be an attempt to marshal the evidence and tend to nudge the fact finder according to the evidence in the record of violation of Gulf Coast State Bank v. Emerhiser, 562 S.W.2d 447, 453 (Tex. 1978)(marshaling) and FNB of San Antonio v. Roper Corp., 686 S.W.2d 602 (Tex. 1985) (nudging). See also Freedom Homes of Texas, Inc. v. Dickinson, 598 S.W.2d 714, 718 (Tex. App. — Corpus Christi 1980, n.r.e.) where the court dealt with the term “mental anguish,” attempting to provide insight without defining the term.
1980 – No Mental Anguish Damages Absent a Willful Tort or Resulting Physical Injury – In Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 939 (Tex. 1980) the Supreme Court held that mental anguish damages cannot be recovered under the DTPA without the pleading and evidence of a willful tort or physical injury because damages recoverable under the DTPA were limited to damages under the common law. Thus, absent a physical manifestation, mental anguish damages could not be recovered in an unintentional tort case even under the DTPA. No definition of mental anguish was relevant to the disposition of the case.
1983 –“Mental Anguish is Not A Legal Term But is of Ordinary Significance and Meaning – In Gulf States Utilities Co. v. Reed, 659 S.W.2d 849, 854 (Tex. App. – Houston [14th Dist] 1983, n.r.e.) the trial court had refused to give the defendant’s requested definition of “mental anguish.” The court of appeals affirmed the trial court’s ruling and held that “we believe this [mental anguish] is not a legal term, but is of ordinary significance and meaning.” The proffered definition was not set out in the opinion . That court pointed out that it had not been referred to any cases where such a definition had been given and did not know of any.
1983 – Mental Anguish Damages Allowed in Wrongful Death Cases: Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983), a wrongful death case, involved a suit by surviving parents against a tortfeasor for negligently causing the death of their minor child. The jury awarded no pecuniary losses but awarded $102,500 for mental anguish. The court was confronted with the “pecuniary loss rule” announced in J.A. Robinson & Sons, Inc. v. Wiggant, 431 S.W.2d 327 (Tex. 1968) which limited death action recovery to “pecuniary loss” and rejected a damage claim for loss of society and companionship – inferentially rejecting a claim for mental anguish. Although the court did not express an opinion as to the elements of mental anguish, it did set forth the evidence proffered by Mrs. Sanchez to support her claim for mental anguish. Mrs. Sanchez suffered traumatic depressive neurosis. She became despondent and disoriented. She was forced to seek medical attention. She suffered neck and shoulder pain and headaches. The court ruled that she had proved that she suffered mental anguish without saying what evidentiary standard was required. The Court held that “pecuniary loss rule” was abolished, specifically overruled by the Robinson case and held that damages could retrospectively be recovered for mental anguish negligently caused in a wrongful death action. The “physical manifestations rule” as a predicate to recover for mental anguish in other types of cases remained intact without mention. The end result was to allow the recovery of mental anguish damages for wrongful death absent any other damages including economic damages. The Court made no effort to define “mental anguish.”
1987 – Abolition of Physical Manifestation Rule; Extension of Mental Anguish Damages to All Negligence Cases; Established Tort of Negligent Infliction of Mental Anguish: In St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649 (Tex. 1987), a non-DTPA case, the Texas Supreme Court extended the right of recovery of damages for mental anguish to all negligence cases and eliminated the prior requirement of a physical manifestation as a prerequisite to recovery. . In the analysis of its holding allowing recovery of mental anguish damages in negligence cases, the Garrard court cited Hill v. Kimball, 76 Tex. 210, 13 S.W. 59 (1890) which had allowed “the tort of negligent infliction of mental anguish.” However, the Hill court, in establishing the tort of negligent infliction of mental anguish, required a physical manifestation of the mental anguish as a prerequisite to recovery, to certify the mental anguish to prevent spurious and fraudulent claims. The effect of Garrard was to establish the tort of negligent infliction of mental anguish absent the element of physical manifestations of the anguish. The Garrard court left “mental anguish” undefined and relied upon the good sense of the jury, assisted by reference to their own experience.
1993 – Abolition of Physical Manifestation Rule Affirmed but Garrard Overruled: In Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993) the Texas Supreme Court reiterated the abolishment of the requirement of a physical manifestation as a predicate to recovery of the mental anguish damages but overruled Garrard and abolished the tort of negligent infliction of mental anguish and limited such recoveries of damages for mental anguish in cases where it is inflicted in connection with the breach of some other legal duty. The court did not reinstate the “physical manifestation rule.” The Court did not define “mental anguish.”
1995 – Mental Anguish Must Disrupt the Daily Routine-But in All Cases?–In Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex. 1995), the court confronted the dilemmas created by awarding damages for mental anguish. Genuineness of a claim for mental anguish has never been the solitary basis for judicial concern about this species of recovery. Rather, the variability and thus unpredictability of such awards, due to the broad discretion routinely afforded juries when awarding mental anguish damages helps to explain some of the artificial constraints historically placed on the recovery of such damages. The Court then proceeded to set a minimum evidentiary standard to establish mental anguish. It did not do this by the use of a “definition” or by spelling out the “elements” of mental anguish. It did so by back dooring and re-energizing the old concept of a physical manifestation requirement as a predicate to recovery of mental anguish damages in non-intentional torts. The Court held:
. . . an award of mental anguish will survive a legal sufficiency challenge when the plaintiffs have introduced direct evidence of the nature, duration and severity of their mental anguish, thus establishing a substantial disruption in the plaintiff’s daily routine. Such evidence, whether in the form of the claimants own testimony, that of third parties, or that of experts, is more likely to provide the fact finders with adequate details to assess mental anguish claims. Although we stop short of requiring this type of evidence in all cases in which mental anguish damages are sought, the absence of this type of evidence, particularly when it can be really supplied or procured by the plaintiff justifies close judicial scrutiny of the evidence offered on this element of damages. (p. 444). (Emphasis supplied).
The Court was seeking to establish certainty and predictability in this area of damages. It allows credence to the process of ascertaining genuineness of the claim and despairs at the lack of certainty in the awards. At first blush, the Parkway case requires evidence of a “substantial disruption of the daily routine,” which is clearly a type of physical manifestation. However, the opinion does state that it stops short of applying this sole standard in all cases. It does not elaborate on what it might approve in other cases. By limiting the scope of mental anguish claims to those cases where there is a substantial disruption of the daily routine of the sufferer, the court seems be attempting to give a degree of certainty to the law by regression to a time of a more primitive view of human suffering and to limit awards – not in amount but in numbers of cases – or to the more egregious cases. The court does seem to drift away from a show of confidence in the good sense of the jury. By acknowledging that there may other levels of evidence sufficient to establish a claim for such damages, the court left open the door for further development. In attempting to apply this case to the preparation of a court’s charge – by way of defining the term or permitting the jury to pass on the question–we must look at what the court has said and perhaps at what it did not say. First, the court does not define the term “mental anguish”. Without expressly saying so, the court has established a type of gate keeping for the trial court to ascertain the minimum standard of evidentiary basis which will determine whether the jury will even be allowed in a given case to consider that element of damages. By leaving the door open, there appears to be a great deal discretion for the trial judge and the jury. The use of the phrases “. . . is more likely to provide the fact finder with adequate details . . .” and “. . .we stop short of requiring this type of evidence in all cases. . .,” precludes a finite standard to be given to the jury in a written charge. The latter statement seems to open the door to cases other than those which disrupt the daily routine. The court recognizes the variability of cases and seems to allow a case by case approach by the trial court, so long as the “gate keeping function” is performed.
1996 – Two Fold Standard-Disruption and High Degree of Mental Pain and Distress – In Saentz v. Fidelity & Guaranty Insurance Company, 925 S.W.2d 607 (Tex. 1996), the Supreme Court once again approached the dilemma of how to manage the question of mental anguish. The court first stated that “while the impossibility of any exact evaluation of mental anguish requires that juries be given a measure of discretion in finding damages, that discretion is limited.” (p. 614). The court seemed to embrace Parkway, but added a new aspect to the evidentiary standard, stating: “Compensation can only be for mental anguish that causes ‘substantial disruption in daily routine’ or ‘a high degree of mental pain and distress.'” (Emphasis supplied) Additionally, there “must be evidence that the amount found is fair and reasonable compensation. . . .” Finally, the court held that “the law requires appellate courts to conduct a meaningful evidentiary review of those determinations.” (p. 614). Therefore, we now have a two fold standard but again the requirement of the appellate review suggested in Parkway. The addition that the evidence must show a substantial disruption of daily routine is not new but is merely restated. In all cases where the jury seems to have excessive discretion in the assessment of damages, whether for mental anguish, pain or punitive damages the courts have always reserved the right to order remittiturs or to order a new trial.
It appears that the court has not only established a two fold evidentiary standard for “mental anguish” but has also established a “gate keeper threshold” for the trial court and has provided for an appellate review after the rendition of the juries’ verdict. By implication, the after verdict review can and should be done by the trial court. It is the use of the alternative “or” that precludes an attempt to extrapolate a finite definition of “mental anguish. ” The term “or” is not used when one or the other must exist; it is a true alternate, either or both of which might or might not exist.
1997 – Case Application – Mental Anguish in Bad Faith Insurance Claims – In Universe Life Insurance Company v. Giles, 950 S.W.2d 48, 54 (Tex. 1997) the Supreme Court addressed the standard of proof to recover damages for mental anguish in bad faith claims against insurance companies and articulated a rule applicable to all bad faith actions. In the context of bad faith actions, mental anguish damages will be limited to those cases in which the denial or delay in payment of a claim has seriously disrupted the insured’s life. There is no mention of the second prong of “high degree of mental pain and distress” articulated in Saenz v. Fidelity & Guaranty Insurance Co., supra. The court did express its continuing concern with the subjective nature of mental anguish and admonished the lower courts to closely scrutinize such awards. Quoting from Parkway, supra, the court reiterated the requirement of “direct evidence of the nature, duration, and severity of their mental anguish, thus establishing a substantial disruption in the plaintiff’s daily routine,” as the standard to ensure that the fact finders are provided “with adequate details to assess mental anguish damages.” No evidence before the trial court was adduced in this opinion. It is significant that the court in this case linked the “direct evidence” issue with the “substantial disruption of daily routine” standard set forth in Parkway. No finite definition of mental anguish was proffered in the opinion.
1998 – High Degree of Mental Pain and Distress Applied – In Latham v. Castillo, 972 S.W.2d 66 (Tex. 1998) the plaintiffs mental anguish evidence was that the knowledge of the tortuous behavior had made him throw up, made him sick, nervous and mad, and it hurt him a lot, his heart was broken, devastated and felt physically ill. Although there was no evidence of the disruption of his daily routine, the Court did acknowledge that “there is some evidence that Latham’s conduct caused the Castillos a ‘high degree of mental pain and distress’ that a jury could consider.” (p. 76). This standard was first articulated in the Saenz case and is now accepted and applied in the Latham case. The Latham court bifurcated the Parkway evidentiary standard into one standard for direct evidence and another for indirect evidence.
In Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex. 1995), we established the evidentiary requirements for recovery of mental anguish damages. To survive a legal sufficiency challenge, plaintiff must present “direct evidence of the nature, duration and severity of their mental anguish, thus establishing a substantial disruption in the plaintiff’s daily routine.” Id at 44. If there is no direct evidence, the Court will apply “traditional ‘no evidence’ standards to determine whether the record reveals any evidence of a ‘high degree of mental pain and distress’ that is more than mere worry, anxiety, vexation, embarrassment, or anger to support any award of damages.” Id (citation omitted). (p. 70).
The Latham case is consistent with Parkway because we have evidence of a type of physical manifestation in the evidence of vomiting being induced by the stress that exceeds “mere worry, anxiety . . . etc . . .” Although the court did not say so, direct evidence would seem to be that evidence adduced from the complainant and indirect evidence being that evidence adduced from third parties. The troublesome part of this bifurcated standard is that both appear to require a type of objectively observable facts that may not involve the a true physical manifestation of harm or injury to the body but they do seem to require evidence of objectively observable facts to support a finding of mental anguish. The direct evidence [from the complainant] requires that the mental pain disrupts the daily routine. The indirect evidence coming from third parties must show a high degree of mental pain and distress that more than mere worry, anxiety, etc.. This seems to require some type of objectively observable facts in order to be able to testify about the subjective state of the complainant as viewed from the perspective of a third party. Although the Supreme Court does not allude to the re-establishment of a physical manifestation prerequisite for the recovery of damages for mental anguish in tort cases other than intentional torts or wrongful death cases, the application of the Parkway, Saenz and Latham rulings take us in that direction.
1999 – Two Fold Standard Without Differentiating Direct from Indirect Evidence: In Gunn Infiniti, Inc., v. O’Bryne, 42 S. Ct. J. 828, 833 (June 24, 1999) the Texas Supreme Court outlined the evidence of the claimant’s mental anguish damages
I have a constant, a constant mental sensation of pain or a rude awakening. It’s like a nightmare every time I see the car. . . I have stopped driving the car. . . I get to the point to where I can’t stand to be in the car . . . . The unreliability again takes into consideration (sic) for a lot of anguish, a lot of grief. I have some severe disappointment both in myself and the dealership, my faith to ever do business again. I felt like I’m publicly humiliated . . . Again after putting up with ridicule from my friends, I feel embarrassed.
and held that as a matter of law it was insufficient to establish a claim for damages. Without mentioning Saentz v. Fidelty & Guaranty Insurance Company, 925 S.W.2d 607 (Tex. 1996), the Supreme Court spoke of both prongs or standards by which we may measure mental anguish as set forth in that case and opined:
This is not legally sufficient evidence of mental anguish. It does not rise to the level of “a high degree of mental pain and distress” that is “more than mere worry, anxiety, vexation, embarrassment, or anger.” Parkway, 901 S.W.2d at 444 (citation omitted). Nor is there any evidence that there was a substantial disruption in O’Byrne’s daily routine.
The two prong standard is clearly acknowledged; however, there was no mention of an absence of evidence based upon whether it was direct (uttered by the victim) or indirect (uttered by third persons). Since there was insufficient evidence as a matter of law as to each prong, there was no need to comment on the source of the evidence or its lack. There was no finite definition of mental anguish
1999 – Mental Anguish Again Treated as a Term of Ordinary Significance and Meaning – In Stevens v. National Education Centers, Inc., 990 S.W.2d 374, 379 (Tex. App. -Houston [14th Dist] 1999, no writ yet) the court restated its previous position in Gulf States Utilities Company v. Reed, 659 S.W.2d 849, 854 (Tex. App. – Houston [14th Dist] 1983, n.r.e.) that the term “mental anguish” “is not a legal term, but is of ordinary significance and meaning;” hence, it does not authorize a special definition. In the Stevens Case, the trial court submitted the mental anguish damages factor as allowing an award for “mental anxiety, humiliation, and embarrassment . . . ,” rather than submitting the mere term of mental anguish. However, the appeals court held that this wrong standard was not harmful-over a vigorous dissent. The Stevens Case did acknowledge that there were two standards for proving mental anguish, citing the Parkway Co. case, one being “direct evidence of the nature, duration and severity of their mental anguish, thus establishing a substantial disruption in the plaintiffs’ daily routine,” and the other being in those circumstances where “there is no direct evidence, the Court will apply traditional ‘no evidence’ standards to determine whether the record reveals any evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger.” The court did not comment on whether “direct evidence” meant that coming from the complainant or whether “indirect evidence” meant that evidence coming from third parties. The was evidence coming from both sources in this case.
2000 – What Mental Anguish is Not – In Stevens v. National Education Centers, Inc., 11 S.W.3d 185 (Tex. 2000)(per curiam) on appeal from 990 S.W.2d 374, 379 (Tex.App. — Houston [14th Dist] 1999), the Supreme Court rejected the trial court’s definition of mental anguish submitted as “mental anxiety, humiliation and embarrassment,” citing Parkway Co. v. Woodruff, 901 S.W.2d 434,444 (Tex. 1995). The Court of Appeals had held that the trial court’s definition of mental anguish was error, but not harmful error requiring a reversal of the judgment. The Supreme Court agreed with the Court of Appeals that the trial court’s definition was error, but held that held that it was indeed harmful and stated that a reversal would have been the proper remedy, but denied all relief on technical grounds. The important effect of the Supreme Court’s approach is that it did not overrule the Houston 14th Court of Appeal’s reasoning that the term “mental anguish” is a term of ordinary significance and meaning. If resulting position holds up, there will be no definition authorized for the term “mental anguish.”
Conclusion – (1) Two Standards of Proof with Two Standards of Evidence – (2) A Term of Ordinary Significance and Meaning – (3) Absence of a Finite Definition of Mental Anguish – The case pattern has stabilized sufficiently to conclude that mental anguish damages in non-personal injury cases may be recovered (1) where there is “direct evidence of the nature, duration and severity of their mental anguish, thus establishing a substantial disruption in the plaintiff’s daily routine;” or (2) where there is indirect evidence of a ‘high degree of mental pain and distress’ that is more than mere worry, anxiety, vexation, embarrassment, or anger.” We should not overlook the Houston 14th Court of Appeals position that the term “mental anguish” is a term of ordinary significance and meaning and should not be defined to the jury. The Supreme Court’s comments in its per curiam decision did not challenge that holding of the Court of Appeals.
Commentary – The Latham case is a DTPA case as is the Brown v. American Transfer & Storage case. In both, the jury found no economic losses and the only damages found were for mental anguish. In the Brown case, the Court held that “damages” recoverable under the DTPA were “common law damages” but rejected the plaintiff’s claim that mental anguish damages without physical injury or other damages were recoverable under the DTPA. In Latham, without reference to Brown, the court rejected the Defendant’s claim that a mental anguish damage cannot be awarded absent a finding of other economic damages – no mention of a requirement of physical injury. In Latham , mental anguish was held to be an “actual damage” under § 17.50(a) of the DTPA and needed no further underpinnings if it was the result of a DTPA violation. The change in the common law since Brown, supra, brought about in St. Elizabeth Hospital v. Garrard, supra, allowing damages recovery for mental anguish absent a physical manifestation, brings the contrastive result in the Latham case. Although we have an award of mental anguish damages where the mental anguish is inflicted in connection with the breach of some other legal duty, we should not read into this case that there is a new tort for the unintentional infliction of mental anguish, glossed over with the DTPA. Latham is consistent with Boyles v. Kerr, supra.
Query- Is the Evidentiary Requirement for Mental Anguish the Same in Personal Injury Cases? — Neither Parkway, Saenz, Universe Life, Latham or Gunn Infiniti dealt with illness or injuries accompanied by pain. In light of these five recent non personal injury cases, how the court will deal in the future with mental anguish proof requirements in personal injury and/or illness cases which seek damages for mental anguish remains to be seen.
Practice Commentary — A Court’s Charge Definition of Mental Anguish is Improper — Should either party to a jury trial propose a definition of the term “mental anguish” along the lines set forth in Thriven, Freedom Homes, Cronin, Parkway, Saenz or Latham, supra, objections that may be made include:
1. “Mental anguish” is a term of ordinary significance and meaning and not a legal term and therefore should not be given a meaning which distorts its ordinary significance and meaning.
2. Such a definition is a comment on the weight of the evidence in violation of Rule 277, Tex.R.Civ.P.
3. The definition marshals the evidence. See Gulf Coast State Bank v. Emerhiser, 562 S.W.2d 449, 453 (Tex. 1978), or nudges the jury toward one side or another, see FNB of San Antonio v. Roper Corp., 686 S.W.2d 602 (Tex. 1985).
As noted by the Court of Appeals, these cases have never been overruled, but likewise they have not been cited in years. Because of this latter circumstance, the Court of Appeals was of the opinion that these ancient cases, like old soldiers, had just faded away. Perhaps a reexamination of the holdings of the cases mentioned is called for, but Ritter v. Hamilton and Ennis v. Crump are decisions of this Court and unless there is some good reason for overruling them, they should not be disregarded.