Butler v. Townend

Citation50 Idaho 542,298 P. 375
Decision Date16 April 1931
Docket Number5661
PartiesRALPH F. BUTLER and CARRIE L. BUTLER, Respondents, v. ARCHER TOWNEND, Appellant
CourtIdaho Supreme Court

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.

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

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 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 company with others, the said Dora Butler was riding in an Essex automobile, driven and owned by one Harry Burke, proceeding southerly from Idaho Falls toward Blackfoot on the public highway; that said automobile was being driven in a careful and prudent manner at a moderate rate of speed, not in excess of 25 miles per hour and on the right-hand side of the highway in the direction the car was going; that on said date appellant was riding in and driving a Hudson automobile proceeding in a northerly direction from Blackfoot, and at a point about two miles south of the town of Firth the two automobiles met and, notwithstanding the fact that the automobile in which Dora Butler was riding was being driven on the right-hand side of the road in the direction it was going, appellant negligently, carelessly, wilfully and in utter disregard of the safety and rights of other vehicles and persons driving along and upon said road and particularly in disregard of the safety and rights of the persons in the automobile driven by Harry Burke, drove over on to the left-hand side of the highway and into and against the automobile in which Dora Butler was a passenger and forced said automobile partly out of the highway and overturned it, throwing Dora Butler out of the car and bringing about her instant death--all of which was proximately caused by the negligence, wilful, wanton and careless conduct of appellant in driving upon the highway at a rapid rate of speed and upon the left-hand side of the highway where the automobile in which Dora Butler was riding was entitled to be.

After amendment of the complaint by interlineation to state that the parents of Dora Butler were her only heirs at law, appellant filed an answer in the way of a general denial of all the allegations in the complaint contained, and the cause was tried to the court sitting with a jury. The appeal is from the judgment in favor of respondents for $ 2,500 based upon the verdict of the jury, and from an order overruling appellant's motion for new trial.

A motion for nonsuit as to a co-defendant of appellant, who was riding with him at the time of the collision of the cars, was not improperly granted.

It is first contended by appellant that the evidence is insufficient to sustain the verdict for the reason that the proof is lacking to establish that the death of Dora Butler resulted in a pecuniary loss to respondents, that is, loss of donations reasonably to have been expected by the parents. In this behalf appellant argues that there is a definite, fixed measure of damages by which the jury must be guided in actions of this kind, one branch of which concerns damages for loss of future benefits or donations which might reasonably have been expected to be received by the parents but of which they were deprived by the death of the decedent. It is urged that for the establishment of plaintiffs' case in this respect proof must be offered upon certain material elements, and for failure of plaintiffs to produce such proof...

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