Hepp v. Ader , 64 Idaho 240 ( 1942 )

The words "heirs and personal representatives" in Sec. 5-311, I C. A., undoubtedly include children and other relationships. The statute, however, contemplates but one cause of action in favor of all the heirs or personal representatives, though it may be shown that some are entitled to a greater proportion of the award than others. In the absence of such showing, while there may be a suit inter sese to determine the proportion, ordinarily the recovery is for all and the division left to the settlement between the heirs aliunde the main action for damages, either amicably or by litigation. (Robinson v. Western States Gas Co., 184 Cal. 401,194 P. 39; Cate v. Fresno Traction Co., (Cal.)291 P. 215, 295 P. 98; Rose v. San Diego Electric Ry. Co., 133 Cal. App. 646,24 P.2d 838; Rickards v. Noonan, 40 Cal.App. (2d) 266, 104 P.2d 839; Watkins v. Nutting,17 Cal. (2d) 490, 110 P.2d 384. Cases to the contrary are Texas N.O.R. Co. v. Scarborough, (Tex.) 104 S.W. 408; IllinoisCent. R. Co. v. O'Neill, 177 Fed. 328.)

Under these circumstances, it seems to me that there has been absolutely no showing why the daughter should receive the separate award of $1500 over and above that made to the surviving husband. In none of the previous Idaho cases was this question present, that is, the right of the heirs or personal representatives to set up individual and separate claims. It seems to me that the California cases, supra, under a statute similar to ours, clearly indicate that to sustain any such proposition there must be supporting evidence, and there was none herein. I therefore concur in sustaining the judgment as to the surviving husband but dissent from sustaining it as to the daughter without indicating that she may not participate in the recovery obtained by her father, since the same, in the absence of any contrary showing, would be for the benefit of all the heirs and representatives who participated as plaintiffs. (Gilmore v. Los Angeles Ry. Corp., 211 Cal. 192,295 P. 41.)

This opinion was written and agreed upon prior to the death of Morgan, J., on October 16, 1942.