Sternhagen v. Kozel

167 N.W. 398 | S.D. | 1918

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 toe defendants a new -trial plaintiff appeals.

[1] The motion for new trial was based upon 'various grounds, among toiem being insufficiency of toe evidence to' -support itoe verdict. From toe reoond it does not appear but that, in granting toe motion, the trial court based (bits ruling in part at least upon insufficiency of the evidence. It follow's that, under ■toe rule well-established by this court, the trial court's order grianlfcing toe new trial must be isustaineld!; -as it is very 'apparent from a reading oif the record herein that, in granting'a new trial on that ground, there would be no abuse of tine discretion vested in ¡such trial court.

[2] It would) ’be unnecessary to. consider any ether question presented if it were not that- there is one which most necessarily arise upon a new trial. It is plaintiffs' claim that, owing to such alleged tort, she suffered' a severe frighlt and) through suoh 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 causa of a physical injury — can recover damages for such, fright and tire resulting physical injury. Inasmuch as tire evidence upon another fnial may differ in some material respecte 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, su'ch fright not accompanying physical injury either as its result or cauise, ¡we are of the opinion, that: When, .physical injury aocicmipanies a fright as its effect, the injured party may recover for Ithe fright, for the physical injury, and for any mental injury accompanying such fright andi physical injury, exactly as one oan -recover where the fright is the result of a physical injury. Of course, under our statute (section 2312, C. C.) the detriment suffered must be the proximate result of tibe wrong done. 8 R. C. L. 527; 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, and cases in notes on page 741 of 12 Ann. Cas.

We do- not wish to be understood as determining whether in fact a tort -was committed aaginst plaintiff.

The order appealed from is affirmed.