*1 SCHAUB, Mаrjorie J. A. Kean Schaub, Francis J. Schaub for Daniel J.
Schaub, minor; Francis J. Schaub for Schaub, minor; Josephine
Paul B. Kean, Appellants,
M. Plaintiffs and
Mary JOB, Appellee. Lu Defendant and
No. 13829.
Supreme Court of South Dakota.
Considered on Briefs March 1983.
Decided June
Timothy Woods, Fuller, J. Nimick of Smith, P.C., Falls, & plain- Shultz Sioux tiffs appellants.
Joseph Siegel, H. Barnett of Barnett & Schütz, Aberdeen, appel- for defendant and lee.
569
WUEST,
Judge.
Circuit
proximate
cause thereof for determina-
jury,
tion
which returned a verdict
This is an appeal
judgment
from a
deny-
damages.
of no
The court denied a motion
ing appellants any recovery on their claims
for
new trial. All five plaintiffs appeal.
personal
for
injury
property
and
damage
and from an
imposing
order
terms as a
Two issues have been presented for our
condition of a continuance. We аffirm the
determination:
judgment,
order,
reverse the
and remand
1. SHOULD THE TRIAL COURT
the case for
proceedings
further
with re-
HAVE GRANTED THE MOTION
spect to the issue of terms.
FOR NEW TRIAL
THE
ON
BASIS
23, 1978,
On December
appellants Marjo-
THAT THE VERDICT OF THE
Schaub,
rie A.
husband,
her
Schaub,
INADEQUATE
JURY WAS
AND
her
sons,
two minor
Paul,
Daniel and
and
AWARDED UNDER THE INFLU-
her.mother, Josephine
Kean,
M.
were trav-
ENCE OF PASSION AND PREJU-
in an
eling
easterly direction on Sixth Ave-
DICE?
nue in
City
of Aberdeen. Mrs. Schaub
2. SHOULD THE TRIAL COURT
was driving a 1970 Pontiac which was
HAVE AWARDED
THE
TERMS TO
owned
her. Her husband was seated
DEFENDANT OF
AAS CON-
next to her in the front seat and her mother
DITION OF
A
GRANTING
CON-
was seated to his right. The two minor
TINUANCE?
sons were in the
seat.
back
Avenue
Sixth
at that time was a four-lane highway with
issuе,
to the
regard
new trial
two lanes running in either direction. The
appellants argue that the jury disregarded
vehicle being operated by Mrs. Schaub was
the court’s instructions and the evidence of
in the lane next
to the center line. She
the nature
and extent of the
in
stopрed her automobile for the traffic in
volved,
alternative,
in the
or
the jury
her,
front of
and while she
stopped
her
was influenced by passion
prejudice
or
be
auto was struck from
the rear
a vehicle
cause counsel
permitted
into
inquire
operated by appellee,
Lu
Mary
Appel-
Job.
other lawsuits in which the
Schaubs
lee had
traveling
been
behind the Schaub
engaged. Appellee counters by asserting
vehicle when she
it
stopped
noticed
for
there was a conflict in the testimony as to
traffic.
attempted
She
tо turn
into
whether or not any damages were sustained
right lane
pass appellants,
and
but was un-
inquiry
and that the
into other lawsuits was
traffic,
able to do so because of the
proper to determine appel
of the
thereby
right
struck the
bumper
rear
lants
support
who tеstified in
of their
Schaub vehicle. At the
impact
time of
her
claims.
speed was between five and ten
miles
hour.
Investigating
Gary
Officer
Myhre
It
many
has been the law in this state for
put down
as his best estimate of
$25
dam-
years
that a motion for a new trial
age on the
report
official
for each vehicle
question of fact is
to the sound
addressed
after first putting
damages
appel-
court,
grant-
discretion of the trial
and the
lants’ vehicle.
ing or the
new trial will
refusing of such
appears
not be disturbed unless it
affirma-
5, 1980,
On March
Mrs.
her hus-
tively
from the record that
has been
band, mother, and two minor sons com-
an abuse of discretion. Basin Electric Pow-
menced five separate
against
actions
Gosch,
222,
er Coop. 90 S.D.
240 N.W.2d
appellee, claiming damages as a result of
Therefore,
96 (1975).
the record must be
the accident. Thesе actions were consoli-
it
viewing
favorably
examined
most
to the
trial,
dated
which was held on March 11
12,
verdict when a new trial is denied. Ford v.
1982. The
judge
trial
directed a
against
Policky,
(1965),
verdict
81
AUTOMOBILE
DAMAGE
to a Dr.
Hogan.
and Dr.
first time
were examined
The vehicle was
by appel
owned
Ferguson,
Fargo,
North
was one
Marjorie
lant
Schaub. She testified that
year
accident,
after
an examination
the difference in the vаlue before the acci
that was arranged by
lawyer.
dent and after the accident was
An
$800.
family
returned less than two
estimate for
repair of the vehicle was
*3
months later for another
by
examination
a
Myhre
Officer
at the
$816.07.
scene of the
in
clinic.
neurologist
the same
All five
accident
damage
estimated the
on his offi
appellants
again
by
were then
examined
cial report
undisputed
at
testimo
$25.
Ferguson
Dr.
his
immediately
depo-
before
ny of appellee establishes that she was trav
sition was taken for use at the trial. Dr.
eling
from five to ten miles
hour when
Francis,
Hogan
Marjorie
examined
she
bumper.
struck the rear
appellee
Both
years
Daniel
two
after the
Schaub
accident.
and her
passenger
adult
they
testified that
Both Dr.
Dr.
Ferguson
Hogan
based
did not see any damage to the
vеhi
Schaub
opinions upon
subjective
the
com-
cle. The vehicle
away
was driven
from the
them,
plaints
to
distinguished
made
as
from
accident,
every day,
used
and no estimate
objective
findings.
Subjective
findings
obtained until nine months
Septem
later on
were defined
Dr.
as those
21,
bеr
1979. Another lawsuit
brought
was
based on statements
by pa-
made to him
for damages to the same vehicle arising out
tients,
distinguished
objective
as
from
find-
incident,
of another
and a later estimate
ings,
clinically
which can be
determined.
obtained in connection with that claim Consequently, the
strategy
defense
was to
door,
showed damage
right
an area
attack the
of those statements to
also
by appellants
claimed
damaged
to be
in
physicians.
the
the instant accident which was not disclosed
husband,
prac-
on the September
Ap-
estimate.
chiropractic
ticed
in Minnesota for several
pellee described the collision
slight
as a
years prior moving
to
to
so
South
bump, which resulted in
damage
to her
he was familiar with
type
injuries
the
of
except
vehicle
leaving
a mark on her
Josеphine
registered
claimed.
Kean was a
bumper. Her
passenger
adult
testified that
nurse,
practiced
who had
most of her life in
“just
it was
bumper
like
to
a
bumper,
Washington
After the accident in
State.
bump.” Mrs. Schaub claimed
to
issue, none of the
were
appellants
exam-
However,
the
rear bumper.
appellee
ined, confined, or
by any
treated
licensed
presented
picture
bumper
in evi
physician until ten months after the acci-
requested
dence and
place
Mrs.
to
Schaub
dent when the four Schaubs were examinеd
an “X”
bumper
on the
where she claimed a
at
the University
Hospital
of Minnesota
dent.
placed
She
an “X” on
bumper.
the
while
emergency
Minneapolis keep-
room
If there is a
bumper,
dent on the
it does not
ing an appointment
for another son not
appear in the
In
picture.
viewing the testi
litigation. They
involved
the accident in
mony
verdict,
favorable
the
we conclude
necessary,
were told to return as
which
,no
jury
could have found
damage to the
none of them ever did.
jury
automobile. The
had the duty to re
Bills were received in
ap-
evidence from
solve this conflicting testimony. Kamp Da
pellant Kean to the
for home ther-
Schaubs
kota,
Co., Inc.,
Inc. v.
Lumber
Salem
89 S.D.
apy
her to them.
claim
No
was made
(1975).
Other evidence that Mrs. showed the meantime had conferred In Mr. Schaub damages arising had claimed out of a later Dakota, with a but was lawyer North when handling sheep. incident she was day the set unable to retain him. On probably This incident caused the jury to trial, after the court considerable discussion why suffering if she from a wonder was upon the terms of $400 continued five cases whiplash wrestling sheep. she was $2,000, case, to be paid by for a total of 20, 1981, to May or the cases were be dis facts, in addition tо others These with These terms were prejudice. missed evidence, have detailed the must affected paid.* credibility complaints appellants’ the of abuse Appellants which their medical claim this was an testimony was action showing since was no of jury based. The could have decided that of discretion Appellants con- proved by any expenses. had not case a costs and appellants under may costs be SDCL imposed of the evidence. Jurors are cede preponderance Snyder, 277 judges They sole the 15-17-25. cite the of Olesen court af- witnesses, this (S.D.1979), and were not bound to ac N.W.2d where costs incurred $1,000 an as appellants the statements of the firmed award of cept case it Olesen opinion of their based defendant. In the experts by the thereon traveled from Kamp Dakota, the absolutely supra. true. shown defendant as * judge granting pre- not side at the trial of the case. the continuance did Dakota,
Idaho to South incurring travel ex- I am also of the opinion that the entire penses $730, expenses for his attor- casе should be retried. The only affirma- Pierre, ney traveling from South tive evidence in the record came from the Chamberlain, affirming Dakota. South doctors who testified to certain definite in- award, the the court noted terms were juries impairment of each of the apрel- to compensate defendant for “oc- expenses lants and related these casioned postponement.” present testimony accident. No medical presented opinions. to refute these In- bar, In the case at there were no ex- contrary evidence, stead of medical we have penses shown to have been occasioned blistering cross-examination with almost postponement trial, of this except every directed towards question prejudicing requested counsel per case and said $500 jury against these and their $5,000 that his spent client had preparing record, doctors. After a full review of the I the cases for trial. opinion am of the firm that these appellants We believe the trial court should have given were not trial. I would fair reverse expenses ascertained the caused and remand the case for a new trial. postponement arbitrarily assessing before the terms “ballpark figures.” may It
have cost to prepare the case for
trial, but how much of that was lost
delay? research, Not all of the depositions,
etc., totally lost postpone- because of
ment. Undoubtedly, there was some loss
incurred appellee terms, which entitled but the amount should have been based on STATE of South Plaintiff some evidеnce. Appellee, Appellants accepted the benefits of the continuance; therefore, pay must However, some terms. we remand case Ricky GRAYCEK, Defendant determination the trial court of the Appellant. evidence, amount based on whiсh terms No. 13909. may include all expenses incurred because of the postponement, including Supreme Court attorney of South Dakota. fees. May Considered on Briefs 1983. The judgment is affirmed. The order Decided June imposing reversed, terms is and the case is remanded to the circuit court for a determi-
nation of the amount of terms.
WÓLLMAN and MORGAN and HEN-
DERSON, JJ., concur.
DUNN, J., part.and concurs in dissents in
pairt.
WUEST, Judge, Circuit sitting
FOSHEIM, C.J., disqualified.
DUNN, Justice (concurring part
dissenting part).
I would concur with the majority opinion remanding the matter of terms for fur- determination.
ther