Holdorf v. Holdorf

• Decision Date: 14 December 1918
• Docket Number: No. 32212.,32212.
• Citation: 169 N.W. 737,185 Iowa 838
• Parties: HOLDORF v. HOLDORF.
• Court: Iowa Supreme Court

185 Iowa 838

169 N.W. 737

HOLDORF

v.HOLDORF.

No. 32212.

Supreme Court of Iowa.

Dec. 14, 1918.

Appeal from District Court, Pottawattamie County; J. B. Rockafellow, Judge.

Action for damages. The material facts are stated in the opinion. Reversed.Cullison & Wyland, of Harlan, and F. A. Turner, of Avoca, for appellant.

Preston & Dillinger, of Avoca, for appellee.

STEVENS, J.

Plaintiff brings this action to recover damages caused by an alleged assault upon her by the defendant resulting in a miscarriage accompanied by severe and painful lacerations. The defendant denied the assault, and contends further in argument that whatever injuries, if any, plaintiff is shown to have suffered were due solely to fright, for which no recovery can be made. According to the testimony of plaintiff, defendant came to the farm, where she was living with her husband, in the latter part of August, 1914, where the following transpired:

“This trouble arose in August, 1914. It was on the farm where we, my husband and I, were living. My husband was down by the barn when it happened. The barn was about 200 feet southeast of the house, something like that. Well, he, the defendant, drove into the yard. He and Orrin was on the running gear of a wagon, and I was by the well pumping a bucket of water, and as he drove into the yard he said, ‘Good morning,’ and I said, ‘Good morning,’ and then when he was even with me he said ‘Whoa,’ and he stopped and got off the wagon and picked up a club and shook it at me. He says, ‘You are making trouble between my kids,’ and I said, ‘I wasn't;’ and he says, ‘You are;’ he says, ‘The ponies, you are going to pay $100 for the ponies; the ponies are mine, and the buggy is mine, too,’ he says. And he came up towards me, and he did as if he was to strike me, and he struck three times. And he come up close to me, and there was a watering trough in between us. He was about a foot and a half from me, when he offered to strike. I stood stiff. I was scared so I couldn't move. At that moment I was pumping water in a bucket for house use. I went out there to get the bucket of water, and I was at the pump when he began to talk to me. When he made his last effort to hit me he was about a foot or two away. He acted like he was mad. After he went down to the barn I went to the house. I walked. I did not take the water with me. I felt like everything gave way in my abdomen, and began to feel sick. I was scared. Yes, sir; I was afraid of him. I was in the family way at that time. I had been that way for about six months.”

She further testified that upon arrival at the house she experienced severe pain in her abdomen, which continued at intervals, with increasing violence, until on or about the 5th day of September, when a physician was called, and she gave premature birth to a child. The court, at the close of plaintiff's evidence, directed a verdict in favor of the defendant, and plaintiff appeals.

[1] I. Plaintiff and her husband resided as tenants upon a farm owned by defendant, who was engaged in erecting a barn thereon at the time of the transaction complained of. The first contention of counsel for appellee is that, under the evidence of plaintiff, defendant, at most, committed a simple assault upon her, for which, in the absence of some physical injury, nominal damages alone could be recovered. An assault has been variously defined by this court, but acts threatening violence to the person of another, coupled with the means, ability, and intent to commit the violence threatened, constitute an assault. The evidence does not disclose that defendant made verbal threats of violence, or that he touched her person, but he was apparently very angry and approached plaintiff in a manner, and with demonstrations, well calculated to inspire in her the fear and belief that he intended to make a violent assault upon her person. The force relied upon as constituting the alleged assault was not quiescent, but was accompanied by all of the manifestations of an intended battery. His acts and conduct were a clear violation of the plaintiff's rights, and the results following the assault were such as might reasonably have been expected to follow therefrom. We have no hesitation in holding that, if plaintiff suffered some physical injury therefrom, an actionable assault was committed upon her.

[2] II. It is, however, contended by counsel for appellee that no physical injury was inflicted upon plaintiff, and that, if she suffered damages, it was due to fright alone, for which no recovery can be had. The authorities are not in harmony upon this point, and it has often been held that no recovery will be permitted for damages resulting solely from fright caused by the negligence of another, in the absence of some physical injury. Lee v. City of Burlington, 113 Iowa, 356, 85 N. W. 618, 86 Am. St. Rep. 379;Mahoney v. Dankwart, 108 Iowa, 321, 79 N. W. 134;Zabron v. Cunard Steamship Co., 151 Iowa, 345, 131 N. W. 18, 34 L. R. A. (N. S.) 751;Kramer v. Ricksmeier, 159 Iowa, 48, 139 N. W. 1091, 45 L. R. A. (N. S.) 928;Cleveland Ry. Co. v. Stewart, 24 Ind. App. 374, 56 N. E. 917;Braun v. Craven, 175 Ill. 401, 51 N. E. 657, 42 L. R. A. 199;Driscoll v. Gaffey, 207 Mass. 102, 92 N. E. 1010;Kennell v. Gershonovitz, 84 N. J. Law, 577, 87 Atl. 130;Arthur v. Henry, 157 N. C. 438, 73 S. E. 211;Cook v. Mohawk, 207 N. Y. 311, 100 N. E. 815. But, as holding to the contrary, see Spearman v. McCrary, 4 Ala. App. 473, 58 South. 927;St. Louis S. W. R. Co. v. Murdock, 54 Tex. Civ. App. 249, 116 S. W. 139.

The rule, however, denying liability for injuries resulting from fright caused by negligence, where no physical injury is shown, cannot be invoked where it is shown that the fright was due to a willful act. Watson v. Dilts, 116 Iowa, 249, 89 N. W. 1068, 57 L. R. A. 559, 93 Am. St. Rep. 239;Johnson v. Hahn, 168 Iowa, 147, 150 N. W. 6;Engle v. Simmons, 148 Ala. 92, 41 South. 1023, 7 L. R. A. (N. S.) 96, 121 Am. St. Rep. 59, 12 Ann. Cas. 740;Pullman Co. v. Cox, 56 Tex. Civ. App. 327, 120 S. W. 1058;Pankopf v. Hinkley, 141 Wis. 146, 123 N. W. 625, 24 L. R. A. (N. S.) 1159;Green v. Shoemaker & Co., 111 Md. 69, 73 Atl. 688, 23 L. R. A. (N. S.) 667;Gulf, C. & S....