Sternhagen v. Kozel

• Decision Date: 01 May 1918
• Docket Number: No. 4294.,4294.
• Parties: STERNHAGEN v. KOZEL et al.
• Court: South Dakota Supreme Court

40 S.D. 396

167 N.W. 398

STERNHAGEN

v.KOZEL et al.

No. 4294.

Supreme Court of South Dakota.

May 1, 1918.

Appeal from Circuit Court, Bon Homme County; R. B. Tripp, Judge.

Action by Catherine Sternhagen against Louis Kozel and another. Verdict and judgment for plaintiff. From an order granting the defendants a new trial, plaintiff appeals. Order affirmed.Joseph Janousek, of Yankton, for appellant.

Roscoe Satterlee, of Mitchell, for respondents.

WHITING, P. J.

Action for damages claimed to have been suffered through an injury resulting from a tort alleged to have been committed by the defendants. Verdict and judgment for plaintiff, and from an order granting the defendants a new trial plaintiff appeals.

[1] The motion for new trial was based upon various grounds, among them being insufficiency of the evidence to support the verdict. From the record it does not appear but that, in granting the motion, the trial court based his ruling in part at least upon insufficiency of the evidence. It follows that, under the rule well-established by this court, the trial court's order granting the new trial must be sustained; as it is very apparent from a reading of the record herein that, in granting a new trial on that ground, there would be no abuse of the discretion vested in such trial court.

[2] It would be unnecessary to consider any other question presented if it were not that there is one which must necessarily arise upon a new trial. It is plaintiff's claim that, owing to such alleged tort, she suffered a severe fright and through such fright received a severe mental and physical shock. The question thus presented is whether or not one, who, through a tort committed against him, suffers a fright-which fright is not the result of an accompanying physical injury, but is itself the proximate cause of a physical injury-can recover damages for such fright and the resulting physical injury. Inasmuch as the evidence upon another trial may differ in some material respects from that upon the former trial, it would serve no useful purpose to state the facts in detail as they were testified to by plaintiff and her witnesses, and we will content ourselves with a declaration of what we deem to be the correct rule of law.

Without determining whether one could recover for fright alone, such fright not accompanying physical injury either as its result or cause, we are of the opinion that: When physical injury accompanies a fright as its effect, the injured...