Jutila v. Frye
| Decision Date | 02 November 1925 |
| Docket Number | No. 4641.,4641. |
| Parties | JUTILA v. FRYE. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James A. Wayne, of Wallace, Idaho, for plaintiff in error.
Robert H. Elder, of Cœur d'Alene, Idaho, for defendant in error.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
This was an action by a husband to recover damages resulting from the death of his wife through the wrongful act and neglect of the defendant. The jury returned a verdict in the sum of $1,500 in his favor, and the judgment has been brought here for review.
Section 6644 of the Idaho Compiled Statutes of 1919, provides:
The complaint did not allege that the husband was the sole heir of the wife, nor did it contain anything on that subject, beyond the simple allegation that he was the husband. No objection was interposed to the complaint on that ground by motion, demurrer, or answer. During the progress of the trial it appeared that the deceased was survived by two daughters, who were likewise heirs, and because thereof the plaintiff in error moved for a directed verdict, and also petitioned for a new trial. It is the settled rule in Idaho, as in most jurisdictions, that an objection for defect of parties is waived, unless raised by demurrer or answer. Bonham Nat. Bank v. Grimes Pass. P. M. Co., 18 Idaho, 629, 111 P. 1078; Anthes v. Anthes, 21 Idaho, 305, 312, 121 P. 553; Trask v. Boise King Placers Co., 26 Idaho, 290, 299, 142 P. 1073.
The deceased was injured in a collision between an automobile driven by the plaintiff in error and an automobile in which she was riding as a passenger, and died about a month later, as a result of the injuries thus sustained. The sufficiency of the testimony to prove negligence on the part of the plaintiff in error, or to prove that the injuries were the proximate cause of death, is challenged by two of the assignments of error; but the testimony was so clear and overwhelming on these points that the assignments are entirely without merit. The testimony was...
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