Hepp v. Ader

• Decision Date: 22 October 1942
• Docket Number: 7024
• Citation: 64 Idaho 240,130 P.2d 859
• Parties: A. W. HEPP and MINA HEPP WEEKS, Respondents, v. MARVIN ADER and HERBERT ADER, Appellants
• Court: Idaho Supreme Court

130 P.2d 859

64 Idaho 240

A. W. HEPP and MINA HEPP WEEKS, Respondents, v. MARVIN ADER and HERBERT ADER, Appellants

No. 7024

Supreme Court of Idaho

October 22, 1942

Rehearing denied November 30, 1942.

DEATH BY WRONGFUL ACT-DAMAGES FOR-ELEMENTS OF-PLEADING AND PROOF-HUSBAND AND WIFE-PARENT AND CHILD-THEORY OF CASE-CHANGE OF.

1. The right to recover for death caused by the wrongful act or negligence of another is statutory. (I.C.A., sec. 5-311.)

2. A recovery may not be had under death statute for grief and anguish suffered by surviving relatives of deceased, but it may be had for loss of society, companionship, comfort protection, guidance, advice, intellectual training, etc. (I.C.A., sec. 5-311.)

3. Under death statute, it is not necessary for a husband or wife, in order to recover for the death of the other, caused by wrongful act or negligence, to plead or prove damages arising from loss of services, food, clothing, shelter or anything else which may be measured in dollars and cents, and the same rule applies where a parent sues for the death of a child or the child for the death of a parent. (I.C.A., sec 5-311.)

4. In an action under death statute by a husband or wife to recover for the death of the other, or by a parent or child to recover for the death of the other, pecuniary loss will be presumed on proof of death caused by the wrongful act or negligence of the defendant. (I.C.A., sec. 5-311.)

5. The parties to an action will not be heard to urge, on appeal, a theory which is inconsistent with that relied on by them at the trial.

6. In a death action, it is the duty of the jury to fix the amount of damages to be awarded. (I.C.A., sec. 5-311.)

7. An appellate court should never interfere with jury's verdict in a death action, because of the amount of the award, except where abuse of discretion is clearly apparent. (I.C.A., sec. 5-311.)

8. A verdict of $10,000 to husband for wrongful death of 54-year-old wife, who for 25 years had been so crippled by rheumatism that she was unable to walk, work, or dress herself, was not reversed on ground that it was excessive. (I.C.A., sec. 5-311.)

9. A 33-year-old daughter was not entitled to recover under death statute for death of her 54-year-old mother for whose death the father had recovered $10,000, where daughter was married, lived with her own family, and there was no showing of a single visit by daughter at the maternal home or of the relation existing between the daughter and the mother. (I.C.A., sec. 5-311.)

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. The right to recover damages for the death of a human being caused by the wrongful act or negligence of another, is statutory.

II. Idaho Code Annotated, Sec. 5-311, places but one restriction on the amount which may be recovered for the death of a human being, caused by the wrongful act or negligence of another. It provides, "such damages may be given as under all the circumstances of the case may be just."

III. In Idaho, recovery may be had for the death of a human being, by the wrongful or negligent act of another, for loss of society, companionship, comfort, protection, guidance, advice, intellectual training, etc.

IV. It is not necessary, in this state, for a husband or wife, in order to recover for the death of the other, caused by wrongful act or negligence, to plead or prove damages from loss of services, food, clothing, shelter or anything else which may be measured in dollars and cents. The same rule applies in cases where a parent sues for the death of a child, or a child for the death of a parent. Pecuniary loss, in cases of this kind, will be presumed upon proof of death, caused by the wrongful act or negligence of the defendant and the relationship of husband and wife or parent and child, existing between the plaintiff and the deceased.

V. The rule is well settled, in Idaho, that the parties to an action will not be heard to urge, on appeal, a theory which is inconsistent with that relied on by them in the trial.

VI. Fixing the amount of damages to be awarded, in a case involving death by wrongful act or negligence, is the duty and responsibility of the jury, and an appellate court should never interfere with a verdict, because of the amount of the award, except in cases where abuse of discretion is clearly apparent.

Rehearing denied November 30, 1942.

The foregoing syllabus is by West Publishing Company, that following is by author of opinion.

I. The right to recover damages for the death of a human being, caused by the wrongful act or negligence of another, is statutory.

II. Idaho Code Annotated, Sec. 5-311, places but one restriction on the amount which may be recovered for the death of a human being, caused by the wrongful act or negligence of another. It provides, "such damages may be given as under all the circumstances of the case may be just."

III. In Idaho, recovery may be had for the death of a human being, by the wrongful or negligent act of another, for loss of society, companionship, comfort, protection, guidance, advice, intellectual training, etc.

IV. It is not necessary, in this state, for a husband or wife, in order to recover for the death of the other, caused by wrongful act or negligence, to plead or prove damages from loss of services, food, clothing, shelter or anything else which may be measured in dollars and cents. The same rule applies in cases where a parent sues for the death of a child, or a child for the death of a parent. Pecuniary loss, in cases of this kind, will be presumed upon proof of death, caused by the wrongful act or negligence of the defendant and the relationship of husband and wife or parent and child, existing between the plaintiff and the deceased.

V. The rule is well settled, in Idaho, that the parties to an action will not be heard to urge, on appeal, a theory which is inconsistent with that relied on by them in the trial.

VI. Fixing the amount of damages to be awarded, in a case involving death by wrongful act or negligence, is the duty and responsibility of the jury, and an appellate court should never interfere with a verdict, because of the amount of the award, except in cases where abuse of discretion is clearly apparent.

Appeal from the District Court of the Seventh Judicial District, for Washington County. Hon. A. O. Sutton, Judge.

Action by a husband for damages for the death of his wife and by a daughter for the death of her mother. Judgment for plaintiffs and motion for new trial overruled. Affirmed as modified.

Judgment and order affirmed. Costs awarded to respondents.

Geo. Donart for appellants.

Damages awarded by a jury must be reasonable. (Anderson v. Great Northern Ry. Co., 15 Idaho 514, 99 P. 91; Kelly v. Lemhi Irr. & Orchard Co., Ltd., 30 Idaho 778-779, 168 P. 1076; Wyland v. Twin Falls Canal Co., 48 Idaho 796-797, 285 P. 676; Willi et al v. Shaefer Hitchcock Company, 53 Idaho 367, 375, 25 P.2d 167.)

Damages should be limited to pecuniary loss. (74 A. L. R. 72, et seq.; Griffey et al v. P. E. R. Co., 209 P. 45 (Calif.); Wyland v. Twin Falls Canal Co., 48 Idaho 796, 797, 285 P. 676; Willi et al v. Schaefer Hitchcock Company, 53 Idaho 367, 375, 25 P.2d 167.)

Burden was on plaintiff to prove damages. Evidence as to deceased must disclose facts of her physical condition, life expectancy, capacity for work, earning capacity, business assistance, character, habits, what was contributed to the benefit of each plaintiff in the way of advice, comfort and society, and such other facts, sufficient to support the verdict. (16 Am. Jur., p. 209; 25 C. J. S., p. 1285; Valenti et al v. Sierra Ry. Co., 111 P. 95, 98 (Calif.); Finley et al v. Steiner, et al, 104 P.2d 819, 823 (Calif.)

Norris & Kenward and Elam & Burke for respondents.

The measure of damages for a death by wrongful act is "such damages as under all the circumstances of the case may be just." (Sec. 5-311, I. C. A.)

This statute does not limit damages to actual financial loss to be demonstrated by evidence. (Anderson v. Great Northern, 15 Idaho 513; Kelly v. Lemhi, etc., 30 Idaho 778 at 782; Ellis v. Ashton, 41 Idaho 106; Wyland v. Twin Falls, 48 Idaho 789; Willi v. Schaefer-Hitchcock, 53 Idaho 367.)

The determination of damages is a matter primarily and peculiarly for the jury and if the trial court refused to grant a new trial, the verdict should not be disturbed on appeal even though the appellate court may think the damages are excessive or inadequate. (Asmundi v. Fergusan, 57 Idaho 450 at 465.)

No uniform rule exists for determining whether damages allowed by a verdict are excessive or inadequate. (Ellis v. Ashland & St. Anthony, 41 Idaho 106 at 123; Colliseum Motor Co. v. Hester, 3 P.2d 105.)

Wide latitude is allowed juries in the award of damages before a reversal should be granted either upon the ground that the damages were excessive or inadequate. (Ellis v. Ashland & St. Anthony, 41 Idaho 106; Asmundi v. Ferguson, 57 Idaho 450 at 465.)

Morgan, J. Holden, J., concurs. AILSHIE, J., Budge, J., GIVENS, C. J., Concurring in part and dissenting in part.

OPINION

Morgan, J.

This action was commenced and prosecuted by respondents against appellants to recover damages caused by a collision between an automobile belonging to Marvin Ader and driven by Herbert Ader, and an automobile owned and driven by A. W. Hepp and occupied by him and Jeannette Hepp.

It is alleged in the complaint that the collision was caused by the negligence of Herbert Ader in driving the automobile belonging to Marvin Ader, as the latter's agent and under his direction, in a careless and reckless manner and at a high, dangerous and excessive rate of speed, around his left hand side of a curve in the...