Butler v. Townend, 5661

CourtUnited States State Supreme Court of Idaho
Writing for the CourtBUDGE, J.
Citation50 Idaho 542,298 P. 375
PartiesRALPH F. BUTLER and CARRIE L. BUTLER, Respondents, v. ARCHER TOWNEND, Appellant
Docket Number5661
Decision Date16 April 1931

298 P. 375

50 Idaho 542

RALPH F. BUTLER and CARRIE L. BUTLER, Respondents,
v.

ARCHER TOWNEND, Appellant

No. 5661

Supreme Court of Idaho

April 16, 1931


DEATH-DAMAGES-PLEADING AND PROOF OF PECUNIARY LOSS.

1. In parents' action for death of adult daughter, jury must estimate damages as best they can by reasonable probabilities, under circumstances (C. S., sec. 6644).

2. Introduction of mortality tables to establish life expectancy of parents suing for death of adult daughter held not indispensable (C. S., sec. 6644).

3. Pleading and proof of pecuniary loss to parents, as well as loss of companionship resulting from death of adult daughter, held sufficient (C. S., sec. 6644).

4. Award to parents of $2,500 for death of adult daughter contributing $5 weekly for their support held not excessive.

5. Finding of negligence of defendant whose automobile veered to left and into automobile in which decedent was riding held not overcome by physical facts of case. [50 Idaho 543]

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. R. M. Terrell, Judge.

Action for damages by parents on account of death of adult daughter in automobile collision. Judgment for plaintiffs. Affirmed.

Judgment affirmed, costs to respondents. Petition for rehearing denied.

T. C. Coffin, for Appellant.

The determination of the amount of damages is by no means left to the uncontrolled discretion of the jury. Their estimate must be based on facts in evidence and confined to those damages which are pecuniary in their nature, and result from the death of the deceased. (Southern Utilities Co. v. Davis, 83 Fla. 366, 92 So. 683.)

Wherever the evidence from which recoverable damages may be properly estimated is so fragmentary and lacking in essential particulars that are material to a reasonably appropriate estimate of damages sustained by the heirs, as to be insufficient to sustain the amount of the verdict, the cause must be reversed and a new trial ordered. (Southern Utilities Co. v. Davis, supra.)

The general nature of the evidence required in such a case as this, is such as will indicate present or probable future dependence of the father and mother upon pecuniary assistance from the child.

The competency and disposition of the child to respond to the needs of her parents, the probable extent of the needs of her parents, the period during which such needs will exist, and the net amount which the child will probably be able to give. (Andrzejewski v. Northwestern Fuel Co., 158 Wis. 170, 148 N.W. 37, 42; McGonegle v. Wisconsin Gas & Elec. Co., 178 Wis. 594, 190 N.W. 471, 472; Mississippi Cotton-Oil Co. v. Smith, 95 Miss. 528, 48 So. 735, 737.)

Witty & Anderson, for Respondents.

In an action of this sort, the jury may consider the value of the child's services during his minority by using their own judgment and common sense, even though the child is so young that it has never worked or returned anything to its parents. (Golden v. Spokane Inland & Empire R. Co., 20 Idaho 526, 531, 118 P. 1076, 1077.)

Recovery in such cases as the one under consideration may be had for the loss of society and companionship of the child. ( Anderson v. Great Northern Ry. Co., 15 Idaho 513, 99 P. 91; Kelly v. Lemhi Irr. & Orchard Co., 30 Idaho 778, 168 P. 1076.)

The society to collateral relatives and not lineal as here, was held by this court to be worth the sum of $ 1500. (Kelly v. Lemhi Irr. & Orchard Co., supra.)

Mortality tables are admissible in evidence but they are not binding on the jury and the jury may decide such matters from age, health, habits and the like from seeing the parties on the witness-stand. (Atchison, T. & S. F. Ry. Co. v. Hughes, 55 Kan. 491, 40 P. 919; Standard Oil Co. v. Reagan, 15 Ga.App. 571, 84 S.E. 69; Vicksburg etc. R. Co. v. Putnam, 118 U.S. 545, 7 S.Ct. 1, 30 L.Ed. 257; Philadelphia B & W. R. Co. v. Tucker, 35 App. D. C. 123, L. R. A. 1915C, 39; The Saginaw, 139 F. 906-913; Broz v. Omaha Maternity etc. Hospital, 96 Neb. 648, 148 N.W. 575, L. R. A. 1915D, 334.)

BUDGE, J. Lee, C. J., and Givens, Varian and McNaughton, JJ., concur.

OPINION [298 P. 376]

[50 Idaho 544] BUDGE, J.

Respondents are the parents of Dora Butler who was killed in a collision between an automobile in which she was riding and one driven by appellant, the evening of January 8, 1930. The action was brought under the provisions of C. S., sec. 6644, which provides in material part that when the death of a person not a minor is caused by the wrongful act or neglect of another the heirs or personal representative of the deceased may maintain an action for damages against the person causing the death; and that in every action under this section such damages may be given as under all the circumstances of the case may be just.

The complaint alleged that Dora Butler was born December 28, 1908 (the proof showed she was born one year [50 Idaho 545] earlier), and was at all times during her life an intelligent, companionable, healthful and able-bodied young lady, a great source of enjoyment, pleasure, companionship and comfort to her parents, and industrious and thrifty, employing her ability and strength in the best way that she could in earning money which she freely contributed to her parents; and that during all of the time, except when she was away from home employed, lived with her parents and aided in the running, management and caring for their home.

The complaint further alleged that on January 8, 1930, in...

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13 practice notes
  • Coliseum Motor Co. v. Hester, 1686
    • United States
    • United States State Supreme Court of Wyoming
    • September 26, 1931
    ...7 Utah 303, 26 P. 654; Webb v. Ry. Co., 7 Utah 17, 24 P. 616, 618; Anderson v. Ry. Co., 15 Idaho 513, 99 P. 91; Butler v. Townend, (Idaho) 50 Idaho 542, 298 P. 375; Mize v. Telephone Co., 38 Mont. 521, 100 P. 971, 129 Am. St. Rep. 659, 16 Ann. Cas. 1189; Gilman v. Hardware Co., 42 Mont. 96,......
  • Hepp v. Ader, 7024
    • United States
    • United States State Supreme Court of Idaho
    • October 22, 1942
    ...v. Lemhi Irr. & Orchard Co., Ltd., 30 Idaho 778, 168 P. 1076; Wyland v. Twin Falls Canal Co., 48 Idaho 789, 285 P. 676; Butler v. Townend, 50 Idaho 542, 298 P. 375; Willi v. Schaefer Hitchcock Co., 53 Idaho 367, 25 P.2d 167. See also, Little v. Ireland, 30 F.Supp. 653; 25 C. J. S. 1284, Sec......
  • McCoy v. Krengel, 5855
    • United States
    • United States State Supreme Court of Idaho
    • December 22, 1932
    ...Adding Mach. Co., 48 Idaho 310, 282 P. 72; Osier v. Consumers' Co., 42 Idaho 789, 248 P. 438.) This court said in Butler v. Townend, 50 Idaho 542, 298 P. 375; "In cases of this character it is not possible to prove the damage with any approximation of certainty. The [52 Idaho 638] jury must......
  • Checketts v. Bowman, No. 7531
    • United States
    • United States State Supreme Court of Idaho
    • July 11, 1950
    ...Van Cleave v. Lynch, 109 Utah 149, 166 P.2d 244; Ellis v. Ashton & St. Anthony Power Co., 41 Idaho 106, 238 P. 517; Butler v. Townend, 50 Idaho 542, 298 P. 375. In Tyson v. Romey, 88 Cal.App.2d 752, 199 P.2d 721, 724, decided in 1948, the California court speculated that $18,500.00 'may be ......
  • Request a trial to view additional results
13 cases
  • Coliseum Motor Co. v. Hester, 1686
    • United States
    • United States State Supreme Court of Wyoming
    • September 26, 1931
    ...7 Utah 303, 26 P. 654; Webb v. Ry. Co., 7 Utah 17, 24 P. 616, 618; Anderson v. Ry. Co., 15 Idaho 513, 99 P. 91; Butler v. Townend, (Idaho) 50 Idaho 542, 298 P. 375; Mize v. Telephone Co., 38 Mont. 521, 100 P. 971, 129 Am. St. Rep. 659, 16 Ann. Cas. 1189; Gilman v. Hardware Co., 42 Mont. 96,......
  • Hepp v. Ader, 7024
    • United States
    • United States State Supreme Court of Idaho
    • October 22, 1942
    ...v. Lemhi Irr. & Orchard Co., Ltd., 30 Idaho 778, 168 P. 1076; Wyland v. Twin Falls Canal Co., 48 Idaho 789, 285 P. 676; Butler v. Townend, 50 Idaho 542, 298 P. 375; Willi v. Schaefer Hitchcock Co., 53 Idaho 367, 25 P.2d 167. See also, Little v. Ireland, 30 F.Supp. 653; 25 C. J. S. 1284, Sec......
  • McCoy v. Krengel, 5855
    • United States
    • United States State Supreme Court of Idaho
    • December 22, 1932
    ...Adding Mach. Co., 48 Idaho 310, 282 P. 72; Osier v. Consumers' Co., 42 Idaho 789, 248 P. 438.) This court said in Butler v. Townend, 50 Idaho 542, 298 P. 375; "In cases of this character it is not possible to prove the damage with any approximation of certainty. The [52 Idaho 638] jury must......
  • Checketts v. Bowman, No. 7531
    • United States
    • United States State Supreme Court of Idaho
    • July 11, 1950
    ...Van Cleave v. Lynch, 109 Utah 149, 166 P.2d 244; Ellis v. Ashton & St. Anthony Power Co., 41 Idaho 106, 238 P. 517; Butler v. Townend, 50 Idaho 542, 298 P. 375. In Tyson v. Romey, 88 Cal.App.2d 752, 199 P.2d 721, 724, decided in 1948, the California court speculated that $18,500.00 'may be ......
  • Request a trial to view additional results

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