It is admitted that respondents suffered no financial loss in the death of this invalid wife and mother. This leaves, as the sole grounds on which to rest the verdict and judgment: deprivation of "companionship, society, comfort, love and affection" of the decedent. The only evidence, as to the relation between the husband and wife, is that she had been an invalid for 25 years; and the husband had taken care of her and had to dress and undress her; and that she was "Mentally, very alert . . . . She was always very cheerful." She was 54 years old and her state of health gave her no such life expectancy as contained in the normal mortality tables. Under this state of the case, a $10,000 verdict seems very large and really out of proportion to verdicts in the great mass of reported death by negligence cases. I am convinced, however, that the verdict was not the result of prejudice — I rather think it was influenced, in amount, by sympathy for the bereaved husband. I am not prepared to say, however, that it is so excessive as to justify this court in reducing or modifying it.
A different question presents itself as to the daughter respondent, Mina Hepp Weeks. Mina Hepp Weeks was 33 years old, married, and lived with her family about 3 miles away from the father and mother; she did not go on the witness stand at all. There is not a word in the record of a single visit at the maternal home or of the relation existing between the invalid mother and the married daughter. Under such circumstances, the law raises no presumption, prima facie or otherwise, that the daughter has sustained damages, under the provisions of Sec.5-311, *Page 249 I. C. A. The motion for a new trial clearly covered this lack of proof as follows:
"4. That there is an insufficiency of evidence to justify the verdict of the jury in favor of Mina Hepp Weeks, and the verdict of the jury is against law.
"That the particulars in which the evidence is alleged to be insufficient are as follows:
"That there was no evidence of damages sustained by either plaintiff; that the evidence submitted in this case proved conclusively that said deceased, Jennette Hepp, was a helpless invalid, unable to perform any household duties; that neither the plaintiff, A.W. Hepp, nor Mina Hepp Weeks was deprived of any services; that the record shows no evidence whatsoever of any companionship and society between said deceased and said A.W. Hepp; neither did it show any proof of comfort or love or affection or counsel or advice (either moral or business) of said deceased for said A.W. Hepp and showed no relationship or companionship whatsoever with said A.W. Hepp aside from and with the exception that said deceased was the wife of A.W. Hepp; that said evidence showed that said plaintiff Mina Hepp Weeks was married and did not live at the home of Jennette Hepp; that she never received any financial assistance or service from said deceased; and said evidence shows no companionship or society or counsel or advice (either moral or business) between said deceased and said Mina Hepp Weeks and showed no associations or proof of any nature whatsoever to establish the relationship of love or affection between said deceased and said Mina Hepp Weeks."
The other sister, Myrtle Hepp Snyder, was also married and lived not as close to the parents as Mina, but, so far as the record discloses, sustained the same relation to her mother, as did Mina; and she declined to join as a plaintiff in this case.
The statute authorized the maintenance of this action as compensatory to a damaged heir and not as a punitive measure to mulct the tort-feasor out of a penalty. Proof must be made in such case, that "the loss of society and companionship" has been a "substantial loss which should be compensated." Such was the holding of this court in Kelly v. Lemhi I. R. Co.,30 Idaho 778, at 786, 168 P. 1076. "Intimacy existing between the father and the child *Page 250 and the loss of companionship" constituted the issue and high point in determining the decision of this court in theAnderson-Great Northern R. Co. case, 15 Idaho 513, 99 P. 91; and established the doctrine in this state, that society andcompanionship may be considered in awarding damages in this class of cases. But that relation, companionship and intimacy, must be proven; it is not presumed.
Holt v. Spokane, etc., Ry. Co., 3 Idaho 703, 35 P. 39, written by the late Justice Sullivan, was an action for damages resulting from the death of an infant son. The court there cited and approved an instruction given in the case of Beesonv. Green Mtn. Gold Min. Co., 57 Cal. 20, wherein the action was prosecuted under sec. 377, Code of Civ. Procedure of California, which is identical with our sec. 5-311, I. C. A. In the fifth paragraph of the syllabus, written "by the court", it is said:
"Under section 4100 of the Revised Statutes of 1887, [sec.5-311, I.C.A.] in this class of cases, certain elements based upon proof may be taken into consideration, yet without proof the jury should not consider them."
The judgment in that case was reversed for lack of proofs.
The Anderson case, supra, from this court, followed the Beeson case and cited the Holt case, supra, with the following observation:
"This court, in the case of Holt v. Spokane P. Ry. Co.,3 Idaho 703, 35 P. 39, cited and approved the Beeson case, and held that the loss of a child's society was a proper element of damages, providing there was any proof on the subject, but that it could not be considered without allegations and proof to that effect."
The Beeson case was also cited with approval by this court in the Kelly case (30 Idaho 778) and in the case of Wyland v. TwinFalls Canal Co., 48 Idaho 789, 796, 285 P. 676. This court has never held that proofs may be dispensed with.
Here, as to the daughter, the proofs show a severance of the parental family relation and the formation of new and more intimate family relations, wherein the husband is admonished that he must "leave father and mother, and shall cleave to his wife" (Matt. 19, 5); which injunction presumably applies to the wife as fully as to the husband.
The damages sustained by an heir, on account of the *Page 251 death of an actual or prospective benefactor, does not inure to the estate of the deceased but is purely personal to the heir (Whitley v. S. C. Ry. Co., 23 Idaho 642, 132 P. 121;237 U.S. 487, 59 L. ed. 1060, L.R.A. 1915 F, 736); and is dependent in amount upon the extent of the loss measured as nearly as possible in dollars and cents, and the nature of such loss must be shown. As said by the Michigan court in Sipes v.Michigan C. R. Co., 204 N.W. 84, 85:
"Evidence relating to the nurture bestowed, and revealing the intellectual powers and moral character of the person, is available, and must be introduced to show the extent of what would have been supplied by the deceased had he lived, and, by reason of his death, need now be bought and paid for. Tomeasure what has been lost, it is necessary to consider thecapacity of the parent to bestow. Without such light, the jurywould have to apply their own standards, based on theirindividual experiences, and these would, of necessity, 'be asvarious as their tastes, habits, and opinions.' See MichiganCentral R. Co. v. Vreeland, 227 U.S. 59, 33 S. Ct. 192,57 L.ed. 417, Ann. Cas. 1914C, 176. And the result would therefore be reached without considering the parent at all." (Emphasis inserted.)
The statute says: "such damages may be given as under all the circumstances of the case may be just." Under this statute, the question arises: How are the "circumstances of the case" made to appear except by evidence? The circumstances of all cases are not alike; on the contrary, it is seldom that the circumstances of any two cases are alike. If the damages are to be assessed without proofs, it may result in as many standards of compensation being resorted to as there are members of the jury.
I think the judgment should be reversed, as to that part awarding damages to respondent, Mina Hepp Weeks.
Budge, J., concurs in conclusion.