Hepp v. Ader

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] 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 highway on which the automobiles were traveling in opposite directions, and on which they met in the collision, and that, as a result thereof, the Hepp automobile was demolished and Jennette Hepp was killed. It is further alleged:

"That the plaintiff, A.W. Hepp, is the surviving husband of Jennette Hepp, now deceased, and the plaintiff, Mina Hepp Weeks, and the defendant, Myrtle Hepp Snyder, are daughters of the said Jennette Hepp, deceased, and as such surviving husband and daughters are and constitute all of the heirs at law of the said Jennette Hepp, deceased, ****"

Mina Hepp Weeks joined her father as a plaintiff in the action and Myrtle Hepp Snyder, refusing to do so, was made a defendant therein.

A.W. Hepp, in the first cause of action stated in the complaint, sought judgment against appellants for $275.00 damages for destruction of his automobile. In the second cause of action he sought judgment against them for $20,250.00, being $20,000.00 for loss of services, companionship, society, comfort, love and affection of his wife, and $250.00 paid by him as necessary funeral expenses. In the second cause of action Mina Hepp Weeks sought $5,000.00 damages for loss of comfort, companionship, society, guidance, advice, love and affection of her mother. Respondents prayed, in their complaint, that Myrtle Hepp Snyder be required to come into court and set forth the nature of her claim, if any, against her co-defendants, and, upon her failure to so appear, it be adjudged and decreed she had waived all claim she had for damages by reason of the wrongful death of her mother. She failed to appear in the case and her default was entered. Appellants appeared and, by way of answer to the complaint, denied each and every allegation thereof and, as an affirmative defense, alleged that A.W. Hepp did not exercise ordinary care, caution or prudence to avoid the accident mentioned in the complaint and that the injuries and damages resulting therefrom, if any, were directly caused and contributed to by his carelessness and recklessness. The issues framed by the complaint and answer were tried to a jury, resulting in a verdict in favor of A.W. Hepp and against Marvin Ader and Herbert Ader, in the sum of $10,525.00; also in a verdict in favor of Mina Hepp Weeks and against said defendants in the sum of $1500.00. Judgment was entered accordingly. Appellants moved for a new trial, which was denied, and the case is here on appeal from the judgment and from the order denying a new trial.

Appellants complain of the giving of one of the instructions to the jury and of the refusal of the judge to instruct it as requested by them. A careful examination of the instructions given and of those refused fails to disclose any error prejudicial to appellants. The instructions given appear to us to correctly state the law applicable to the case and we find no error in the refusal to give the instructions requested by appellants.

The statute applicable to this case is Idaho Code Annotated, Sec. 5-311, which contains the following:

"5-311. Action for wrongful death. — When the death of a person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death; * * * * In every action under this * * * * section, such damages may be given as under all the circumstances of the case may be just."

The evidence shows respondent, Mina Hepp Weeks, was, at the time of her mother's death, a married woman living on a farm a few miles from where her parents lived. No testimony was offered as to the comfort, companionship, society, guidance, advice, love or affection which she had received from her mother, or which she had lost by reason of her mother's death. No testimony was offered as to services, companionship, society, comfort, love or affection which the respondent husband received from his wife during their marriage, of which he had been deprived by her death. The evidence does show that, for a period of about 25 years immediately preceding her death, Jennette Hepp had been so crippled by rheumatism that she was unable to walk or perform any work; also that she was mentally very alert and was always cheerful.

Appellants insist the daughter has not been shown to be entitled to more than nominal damages for the death of her mother, and that the verdict of $10,000.00, in favor of the surviving husband for the death of his wife, is grossly excessive. They complain of the action of the trial judge in refusing to reduce the amounts awarded by the jury, and insist the verdicts were given under the influence of passion and prejudice.

There is probably no subject about which there is greater discord in judicial opinion than with respect to the amount which should be awarded as damages for the death of a human being, caused by the wrongful act or negligence of another. The right to recover such damages is statutory, and much of this discord may be attributed to differences in laws granting it.

Our statute, heretofore quoted, providing for recovery of damages for death, caused by wrongful act or negligence, is as liberal as any we have examined. It places but one restriction on the amount which may be recovered. That restriction is to be found in this language: "such damages may be given as under allthe circumstances of the case may be just."

Although the decisions are agreed that recovery may not be had for grief and anguish suffered by the surviving relatives of the deceased, it may be had, in Idaho, for loss of society, companionship, comfort, protection, guidance, advice, intellectual training, etc. (Wyland v. Twin Falls Canal Co.,48 Idaho 789, 285 P. 676.)

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 arising 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 the 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. (Anderson v. Great Northern Ry. Co., 15 Idaho 513, 99 P. 91;Kelly 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 Fed. Supp. 653; 25 C.J.S. 1284, Sec. 118; Kane v. Mitchell Transp. Co., 35 N.Y. Supp. 581 (affirmed Memo. Dec., 48 N.E. 1105); Davis v. United StatesNat. Bank of Indiana Harbor (Ind.), 186 N.E. 339; O'Hara v.Lamb Const. Co. (Mo.), 206 S.W. 253; Byram v. East St. LouisRy. Co. (Mo.), 39 S.W.2d 376.)

During the trial of this case no contention was made by defendants that, if Mrs. Weeks was found to be entitled to recover, she was not entitled to substantial damages, nor that her recovery should be limited to a nominal amount. No motion was made, either for a non-suit or a directed verdict, nor was a request presented to the court that recovery be limited, except in defendants' requested instructions, as follows:

1. "You are instructed that should you find in favor of the plaintiffs, then, in determining what damages should be allowed as under all the circumstances of the case may be just, you may take into consideration the pecuniary loss to the plaintiffs resulting from the loss of comfort, society, companionship and support of the husband and the child by the wife. You should not take into consideration the mental suffering and mental grief of plaintiffs which resulted from the death of the deceased.

"ENDORSED: Refused as covered 12-12-41. A.O. Sutton, Judge."

2. "You are instructed that in determining the amount of damages you shall not take into consideration the mental suffering and mental agony of the surviving husband and daughter.

"ENDORSED: Given 12-12-41. A.O. Sutton, Judge."

3. "You are instructed in a case involving the death of a wife where the damages are sought by the husband and a daughter, the result of damages is the pecuniary loss, resulting from the loss of comfort, society, companionship and support of the husband and daughter by the wife, together with the hospital, medical and funeral expenses incurred in connection with the death of the wife.

"ENDORSED: 12-12-41. Refused as covered. A.O. Sutton, Judge."

4. "You are instructed that in determining the amount of pecuniary damages, if any, which were suffered by the plaintiffs, or either of them, you should take into consideration the physical condition, and the state of health of the deceased. Her physical condition and state of health should be considered by you in determining the length of time which she might have lived but for the accident, and also in determining what financial assistance and support she would have rendered and furnished plaintiffs had she lived.

"ENDORSED: 12-12-41. Refused as covered. A.O. Sutton, Judge."

7. "You are instructed that if you should find for the plaintiffs you should assess their damages at such amount as under the circumstances of the case may be just to reimburse them for the pecuniary loss sustained by them, taking into consideration the companionship, degree of intimacy, and likelihood of support which you find from a preponderance of the evidence plaintiffs would have probably received from the deceased had she lived but in no event should your verdict for plaintiff, A.W. Hepp, exceed the sum of $20,525.00, nor should your verdict for plaintiff, Mina Hepp Weeks, exceed the sum of $5,000.00.

"ENDORSED: 12-12-41. Refused. A. O. Sutton, Judge."

The rule is well settled in this state 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. (Brown v. Hardin, 31 Idaho 112, 169 P. 293; Hindman v. OregonShort Line R. R. Co., 32 Idaho 133, 178 P. 837; Idaho Gold D.Corp. v. Boise Payette L. Co., 52 Idaho 766, 22 P.2d 147;Aetna C. S. Co. v. Wedgwood, 57 Idaho 682, 69 P.2d 128;Gibbs v. Claar, 58 Idaho 510, 75 P.2d 721.)

Fixing amount of damages to be awarded, in a case involving death by wrongful act or negligence, is the duty and responsibility of the jury. The rule is too well established to require the citation of authority, that an appellate court should never interfere with the verdict of a jury because of the amount of the award, except in cases where abuse of discretion is clearly apparent. In this case we find no evidence of abuse of discretion, nor is there anything in the record which suggests that the verdicts were given under the influence of passion or prejudice.

The judgment and order appealed from are affirmed as modified. Costs are awarded to respondents.

Holden, J., concurs.