BUDGE, J.
This action is brought by respondent to recover damages for alienation of affections of her former husband, P. H. Pringle, by appellant. The cause was tried by the court and jury resulting in a verdict in favor of respondent and assessing her damages in the sum of $50,000, upon which verdict, judgment was entered, from which this appeal is prosecuted.
The trial court in instruction No. 1, briefly summarized the pertinent allegations contained in the amended complaint* of respondent and the answer thereto by appellant as follows:
“By her second amended complaint the plaintiff alleges in substance: That on or about the 11th day of April, 1937, at Sacramento, State of California, the plaintiff was lawfully married to P. H. Pringle, who is the son of the defendant, Clara M. Pringle; that pursuant to a judgment and decree of divorce, entered in this court * * * plaintiff herein was restored to her maiden name of Gertrude Summerfield; that by reason of said marriage the plaintiff became and was entitled to the support, company, society, and protection of her said husband, and that from and after the time of said marriage and until the interferences on the part of the defendant hereinafter set forth, said P. H. Pringle was deeply attached to his said wife, the plaintiff, and the plaintiff and her said husband lived happily together as husband and wife, and, but for the wrongful and malicious acts of the defendant hereinafter set forth, they would have continued so to live as husband and wife.
“That following said marriage *
* *
up to and until the fall of 1938, they resided at Sacramento, California, and that upon the solicitation and inducement of the defendant, thereafter they established their home on a farm owned by defendant near the village of Kimberly, in Twin Falls County, Idaho, and immediately upon their residing within the State of Idaho defendant conceived and harbored an intense dislike and hatred of plaintiff, and from said time did wrongfully and maliciously, by the use of subtle arts, contrivances, and threats, and knowing the said P. H. Pringle to be the husband of the plaintiff, continuously and systematically sought to prejudice and poison the mind of said P. H. Pringle against the plaintiff, and to alienate his affections from her by falsely telling him that the plaintiff was not good enough for him, and occupied a station in life beneath him; that plaintiff was not strong enough to be a farmer’s wife; that plaintiff had no regard for money and spent it unnecessarily; that plaintiff had married him on account of defendant’s money; and further by defendant referring to plaintiff in the presence of said P. H. Pringle as ‘that woman’, and by displaying an attitude and pursuing a course of conduct towards plaintiff in the presence of said P. H. Pringle designed to convey to said P. H. Pringle the fact that defendant did not approve of plaintiff as the wife of said P. H. Pringle; and by suggesting and encouraging said P. H. Pringle to mistreat plaintiff, both physically and mentally, in an attempt to force plaintiff to leave said P. H. Pringle, and that unless the said P; H. Pringle separated from and got rid of plaintiff, said defendant would refuse to renew the lease of the premises farmed by said P. H. Pringle and owned by said defendant; would refuse any financial assistance to said P. H. Pringle, and would disinherit the said P. H. Pringle, who, together with a sister, are the only heirs of said defendant, and thus threatening to deprive said P. H. Pringle of an inheritance of in excess of $250,000.00; and that the defendant, by the continued and systematic use of her said arts and contrivances, and by said repeated threats to the said P. H. Pringle, did wrongfully and maliciously alienate the affections of the said P. H. Pringle from the plaintiff herein, and that as a result thereof, on or about the 25th day of May, 1940, the said P. H. Pringle and the plaintiff herein became separated, and on or about the 14th day of October, 1941, became divorced, because of the fault of said P. H. Pringle; that
by reason of the wrongful and malicious acts on the part of the defendant hereinabove alleged, said P. H. Pringle became estranged from plaintiff and his affections and regard for her were destroyed, and plaintiff has been wrongfully deprived by the defendant of the comfort, society, support and protection of her husband, and of the happiness and benefits she otherwise would have received at his hands, and has suffered great distress of mind, body, and estate, to her damage in the sum of $50,000.00; and is entitled to punitive damages by reason of the wrongful, malicious and wilful acts of the defendant hereinabove alleged in the sum of $25,000.00. Plaintiff prays judgment against the defendant in said amounts.
“In answer to said complaint the defendant denies each and every allegation of said complaint except that defendant admits that the plaintiff and P. H. Pringle, who is the son of the defendant, were lawfully married April 11, 1937, at Sacramento, California; and that pursuant to a judgment and decree of divorce, as alleged in said complaint, the plaintiff herein was restored to her maiden name of Gertrude Summerfield. Defendant prays that the plaintiff take nothing by reason of her complaint herein.”
Appellant has assigned and relies upon six assignments of error, some of which are subdivided. We will not discuss the assignments in the order set out in appellant’s brief-but will undertake to cover all material errors assigned. We will first consider assignment of error No. 4, namely that: “The evidence is insufficient to sustain the verdict and the judgment * * The record is voluminous and it would be pointless to undertake to recite the evidence at length. The following synopsis of evidence adduced upon the trial finds support in the record.
Respondent, Gertrude Summerfield, and P. H. Pringle first met in November, 1936, while both were residing and working in Sacramento, California. During the Christmas holidays of that year, 1936, respondent was introduced by P. H. Pringle to his father and mother, appellant herein. Respondent and P. H. Pringle were married April 11, 1937, in Sacramento. Respondent testified that while she and her husband lived in California, they “had been very happy.” In November, 1938, at appellant’s request, the young couple moved to Twin Falls County to go on one of appellant’s farms. Upon their arrival in Twin Falls, they were met by appellant who, upon seeing respondent, remarked: “ ‘Oh,
did you come too? I thought you’d stay in California until Harold got things settled.’ ” While respondent and her husband were making the farm house liveable, they stayed some three weeks with appellant, whose attitude even at this early date was “very cool” towards respondent, being evidenced in such small ways as not talking to respondent at the dinner table and not passing food to her; and also referring to respondent as a “snip”, and criticising respondent’s house cleaning to such an extent that respondent apologized for her lack of training in scrubbing floors and so forth, and asked appellant to be more patient.
After the couple moved onto the farm, they experienced, while appellant was absent, tranquil, natural days of life conducive to a happy, stable marriage. But a careful reading of the transcript forces upon one’s consciousness a feeling of impending disaster, a sort of inharmony between husband and wife resulting from appellant’s dominance, which overshadowed the lives of this young couple all the while they were on the farm. In the fall of 1939, respondent’s husband became ill and was confined to bed, the attending doctor diagnosing the illness as pneumonia. Appellant did not believe her son had pneumonia and she and respondent became engaged in a heated controversy in the presence of the son, the registered nurse, and appellant’s close friend, Mrs. Bead, at which time respondent told appellant “that the doctor had diagnosed Harold’s condition as pneumonia”, whereupon appellant retorted that respondent had “no business getting a doctor; * * * had no business hiring nurses; * * * was entirely too extravagant with her [appellant’s] money,” and respondent replied they were spending their “own money, not her money.” Appellant then told her bedfast son that “if he got well he would have to leave the farm because she was not going to let” respondent “stay there any longer. * * * ‘That woman will have to leave the farm. She cannot stay here another year,’ ” and “ ‘if you don’t get rid of her I will disinherit you’ ”. Thereafter, the two women never got along at all, although respondent sought for a reconciliation only to be rebuked by the words “ ‘No,’ ” she “would have to go.” After the occurrence just related, upon appellant’s frequent visits to the farm, she would not go into the house, but would drive into the yard, honk the horn on her automobile, and respondent’s husband would go out and talk with her. After nearly every one of appellant’s visits to the farm, her son would come into the
house, quarrel with his wife, respondent, inflict abuse upon her, charge her with being the cause of his losing his inheritance, state that she was not “worth that much”, order her off the farm, and on numerous occasions inflict corporal punishment upon respondent distracting her so greatly as to cause her to attempt suicide. At Christmas time, appellant gave her son a Christmas present, and a small Christmas present to one of her farm tenants, but gave none to respondent, and thus, as upon numerous occasions, by her acts and conduct and general attitude toward respondent, without speaking, she spoke, clearly demonstrating her ill will and dislike for respondent. Finally, fearing for her life, and having made a final and vain attempt to persuade appellant to give them another chance, respondent left her husband.
Other'witnesses corroborated much of respondent’s testimony. The registered nurse, Mrs. Marie Wullschleger, verified respondent’s version of the climatic quarrel between daughter and mother-in-law. Mrs. Crom, a neighbor, testified that she was present on one occasion when appellant snubbed respondent, and on another occasion she observed respondent’s black eye and bruised hips inflicted by respondent’s husband; and that the husband told her: “My mother comes out and jumps on me and it seems I always take my spite out on Gertie.” One Harry Langer testified: “She wanted to know if we heard from Gertrude lately and I said: ‘We have.’ She wanted to know how often we hear, and I said: ‘Once in a great while.’ She asked if we thought she would ever go back to Harold. I said: T don’t know but I think she will.’ She said: T told Harold if he did’nt get rid of Gertrude he would be cut off from my estate, and leave him without a penny and my daughter would get it all.’ ” Langer’s 15 year old son, Lynn, was present when appellant made the above statement, and also testified to the same effect. One John D. Noland testified that before respondent and appellant’s son were married, but after appellant had been introduced to respondent during the Christmas holidays of 1936, he had the following conversation with appellant: “Well in the conversation I asked her how she liked the young lady, and she said: ‘Well,’ she said: ‘she is too frail and she is too small to make a farmer’s wife.’ She said: T am going to do everything I can to break them up and if they do get married I will break them up afterwards.’ ” The wrongful influence of appellant upon her son’s affection for respondent, subsequent to their marriage,
was like a thing that springs up from within, consumes the vitals and destroys the structure.
There is much conflicting testimony. However, if respondent’s testimony is to be believed (and that is a matter solely for the jury to determine) appellant was the sole cause of her son’s loss of affection for respondent. “While there is not much evidence corroborative of her statements, none is required to sustain the verdict in this court. We are not permitted to retry the facts. If there is substantial evidence in the record sustaining the verdict and judgment, though it be but the evidence of one witness, and that witness the person in whose favor the verdict and judgment is rendered, we have no rightful power to reverse the judgment for want of facts, no matter how strongly we may be convinced that the evidence preponderates with the other side. * * * appellant is concluded by the finding of the jury.”
Stanley v. Stanley,
32 Wash. 489, 73 P. 596. In the instant case, there is abundant, substantial evidence to support the verdict of the jury that appellant alienated P. H. Pringle’s affections for respondent by malicious, wrongful threats to disinherit and by continuous and systematic acts and conduct, which resulted in prejudicing and poisoning the mind of P. H. Pringle, her son, against respondent to the extent that he lost his love and affection for her. It is the well established rule that a verdict on conflicting evidence will not be disturbed on appeal.
(State v. Snoderly,
61 Ida. 314, 101 P. (2d) 9.) Moreover, it is the function of the jury to pass upon the weight and credibility of the evidence.
(Manion v. Waybright,
59 Ida. 643, 86 P. (2d) 181.) In considering the evidence this court must accept the evidence most favorable to the verdict, giving every reasonable inference and intendment in support of the same, and if more than one reasonable conclusion or inference can be drawn, to accept the one sustaining the verdict.
(Evans v. Davidson,
58 Ida. 600, 77 P. (2d) 661.) It might here be well to observe that the rule is:
“It is no defense that defendant’s conduct was not the sole cause of the alienation or separation; it is sufficient if his conduct was the controlling cause, although other matters contributed.” (30 C.J. 1125, sec. 982.)
“It follows that wherever there is a conflict in the evidence this court may only review the testimony for the purpose of determining whether or not there is any substantial evidence in the record to support the verdict of the
jury, and must accept the evidence there found as true, unless that evidence is so inherently impossible or improbable as not to be entitled to belief.”
(Wallace v. Wallace,
85 Mont. 492, 279 P. 374; see also
Worth v. Worth,
51 Wyo. 488, 68 P. (2d) 881.)
It was within the province of the jury in considering the evidence as a whole to take into consideration circumstantial evidence, if any, produced during the trial which showed or tended to show that appellant, maliciously, systematically and continuously influenced her son, whereby his love and affection for respondent was alienated. The fact that ‘evidence in action for alienation of affections is circumstantial does not impair its usefulness nor deprive it of its potency.
(Wallace v. Wallace, supra; Moelleur v. Moelleur,
55 Mont. 30, 173 P. 419.) It was for the jury to determine whether or not respondent had established by a preponderance of the evidence, whether direct or circumstantial, that appellant’s conduct was such as resulted in undermining and ultimately alienating the affection P. H. Pringle previously had for respondent, and that such acts and conduct on appellant’s part were malicious, intentional, and in furtherance of a well defined scheme or plan which ultimately resulted in the separation of respondent .and P. H. Pringle, her son.
When the facts and circumstances disclosed by the record are carefully considered, we cannot say there was not sufficient, competent and substantial evidence to support the verdict.
Appellant strenuously urge.s that the court erred in giving and refusing to give certain instructions. Upon oral argument, much stress was placed upon the court’s instruction No. 12
. It is conceded that “the court correctly instructed as to the presumption of good faith on the part of a parent but when it touched upon the overcoming of
that presumption it permitted the jury, without any guide, to determine what advice or actual conduct was ‘unwarranted, without excuse or reason, or induced by improper motives/ ” It is further contended “the jury might have believed that the appellant’s conduct was unwarranted— that would be a matter of judgment which might not have any relation whatever to malice.” The gist of appellant’s contention is, if we understand it, that “the presumption is not overcome excepting by evidence which shows malice,” and that the use by the court of the word “unwarranted” justified the implication that a determination of the case could be made by the jury irrespective of the question of malice. When we read instructions Nos. 12, 11
, 7
, and 6
, together and as a whole, we perceive that the court definitely instructed the jury that the presumption of law that the parents have a right to be interested in the affairs of their married children and advise them regarding such affairs, must be overcome by competent evidence, and it must be shown that the parent
acted maliciously and with intent to alienate the affections of the child.
Or in other words, that respondent could not recover in the face of the presumption of law stated, unless by competent evidence she established the fact that appellant acted maliciously and with intent to alienate the affections of respondent’s husband. The court not only defined malice as a necessary element to overcome the presumption of good faith but further advised the jury as to the way in which such malice should be proved (i.e., by direct evidence of evil motive or intent or indirectly by inferences to be drawn from other facts and circumstances.)
We think that the discussion of No. 12 amply disposes of No. 13.
We are not constrained to hold instructions Nos. 20 and 21 are prejudicially erroneous.
(Dwyer v. Libert,
30 Ida. 576, 167 P. 651.)
Instructions Nos. 22 and 23, complained of, find support as being correct and not prejudicial in 30 C.J. 1139-40.
Coming now to assignment of error No. 2, namely: “The verdict of the jury was made under the influence of passion and prejudice and is excessive, both as to actual damages and punitive damages.” Kespondent contends that this assignment cannot be considered on appeal from the judgment in the absence of a motion for a new trial based upon that ground, and cites in support thereof the following authorities.
(Ellis v. Ashton & St. Anthony P. Co.,
41 Ida. 106, 238 P. 517; 3 Am. Jur. 131, sec. 399; 3 C.J. 739, sec. 781; 4 C.J.S. 747, sec. 339; and many others. This exact point has been definitely decided in this jurisdiction contrary to counsel’s contention and authorities cited in support thereof.
(Buster v. Fletcher,
22 Ida. 172, 125 P. 226;
McKinlay v. Javan Mines Co.,
42 Ida. 770, 248 P. 473;
Herrick v. Breier,
59 Ida. 171, 82 P. (2d) 90;
Luther v. First Bank of Troy,
64 Ida. 416, 133 P. (2d) 717.)
The verdict awarded in respondent’s favor was $35,000 actual damages and $15,000 exemplary damages. The record supports, we think, the conclusion that appellant was worth approximately not less than $300,000, and that respondent at the time of her marriage to P. H. Pringle, owned a small residence in Sacramento, which she sold, proceeds being expended in farming operations of her husband and herself. The exact amount received as specified in the settlement agreement is not altogether clear but the inference we think may be indulged that it did not amount to the sum received for the sale of the residence property. The court in its instruction No. 24, in effect, instructed the jury that if respondent and P. H. Pringle had entered into a property settlement agreement which had been approved by the district court in the decree of divorce awarded to respondent and if the verdict should be for respondent, in assessing damages they would not be entitled to take into consideration, or make any award for, the loss by respondent of support and maintenance by her husband. That a decree of divorce was granted to respondent against her husband P. H. Pringle, on the ground of cruelty, and that
a property settlement agreement was entered between respondent and P. H. Pringle and approved by the district court in its decree of divorce is established by the exhibits. The court in its instruction No. 25, said:
“You are instructed, gentlemen of the jury, that the fact that a husband and wife have entered into a property settlement does not preclude the wife’s right to recover in an action of this kind from a third person for alienating the affections of her husband.”
In instruction No. 26, the court said,
inter alia:
“*
* in determining the amount of actual or compensatory damages to be allowed plaintiff, you have the right to take into consideration that a wife is entitled to the conjugal fellowship, protection, affection and society of her husband, and it is your duty to award her damages in a sufficient amount as you may deem just and proper to compensate her for the loss of these, as well as for the humiliation and suffering inflicted upon her not exceeding $50,000.00.
“* * * if you find from the evidence that the plaintiff is entitled to recover actual or compensatory damages in any amount, and you further find from the evidence that the defendant’s acts were wanton, malicious or gross and outrageous, or that the facts in this case are such as to imply malice and oppression on the part of the defendant, then you have the right to award to plaintiff, in addition to such actual or compensatory damages which you may find from the evidence she is entitled to receive, exemplary or punitive damages not exceeding $25,000.00, but in the event you find from the evidence that the plaintiff is not entitled to recover actual or compensatory damages, then in that event you have no right to award to plaintiff any exemplary or punitive damages.”
From the court’s instructions it is clear that the jury was instructed to award respondent no damages for loss of support and maintenance by her husband, but to limit the verdict for damages to actual damages and exemplary damages by reason of the alleged wrongful, malicious acts of appellant.
In considering the question of the damages,, the jury was at liberty to take into consideration the future probability that, upon appellant’s death, there being but two heirs, respondent’s husband would receive by inheritance one-half of her estate, or approximately $150,000, in which respondent would have a contingent interest with her
husband. They were also at liberty to consider the loss of consortium, because:
“The gist of the action for alienation of affections is the loss of consortium. (30 C.J. 1123, sec. 977.) This is a property right growing out of the marriage relation, for loss of which recovery may be had, and includes the exclusive right to the services of the spouse (which contemplates not so much services or reward earned as assistance and helpfulness in the relations of conjugal life according to their situation) and also the exclusive right to the society, companionship and conjugal affection towards each other. The plaintiff is not limited to a recovery of damages measured by the loss of consortium down to the date of the commencement of the action, but is entitled to damages measured by the permanent loss of the spouse’s aid, comfort and companionship. (30 C.J. 1148, sec. 1026.) In addition to such injuries and loss, recovery may be had for mental and physical suffering, as well as injuries to character, feelings or reputation. (30 C.J. 1149, sec. 1026; 13 Cal. Jur. 905, sec. 88.) Conceding that it is a difficult task to determine what is a just and reasonable compensation and that it may not be possible of exact ascertainment in actions of this character *
(Riggs v. Smith,
52 Ida. 43, 49, 11 P. (2d) 358.)
where such damages are substantially proved as in the instant case, that is, loss of consortium, mental anguish, physical suffering and humiliation, as well as injury to character, feelings and reputation, we resort to the general rule, which is that the amount of damages is peculiarly for the jury to determine under all the facts and circumstances of each particular case, and in the absence of abuse of discretion the verdict will not be disturbed. The presumption being that the jury, after hearing all testimony and receiving the instructions of the court with reference to the amount of damages, took into consideration all of the elements of damages set out in the instructions of the court.
(Maw v. Coast Lbr. Co.,
19 Ida. 396, 416, 114 P. 9;
Maloney v. Winston Bros. Co.,
18 Ida. 740, 111 P. 1080.)
As pointed out in
Geist v. Moore,
58 Ida. 149, 70 P. (2d) 403, there are two types of cases where this court will take action because of the excessiveness of the verdict. One, where “it is apparent that the error has occurred through a miscalculation of the jury or a misconception by
it of the basis on which the calculation should be made.” The other, “where the only apparent reason for the excessive character of the verdict is that it was the result of bias, prejudice or passion.” This court, speaking through Justice Givens, in
Luther v. First Bank of Troy,
supra, said:
“While the amount of damages is peculiarly for the jury to determine under the facts of each particular’case, this court can nevertheless determine whether or not the damages are so large as to indicate the influence of passion and prejudice in the verdict. If the verdict is excessive but does not indicate such influence of passion and prejudice as to taint the entire verdict, that is, indicate that the rendering of any verdict against the defendant was because of passion and prejudice, merely that the verdict is excessive in amount, this court has reduced the amount, making its acceptance optional. [Citing cases.] * * * If, however, passion and prejudice evidently entered into the jury’s deliberations not only as to the amount of the verdict but as to contributing to its returning any verdict at all, the verdict is vitiated and the only constitutional protection is to grant a new trial. [Citing cases.] * *
If we understand the ultimate conclusion reached in the foregoing opinion it is held that where it appears that the damages are so large as to indicate the influence of passion and prejudice in the verdict a new trial will be granted. If it appears that the verdict is excessive but passion and prejudice are not indicated, the court will reduce the verdict to the amount supported by the evidence making its acceptance optional.
In
Cox v. Northwestern Stage Co.,
1 Ida. 376, 385, it was contended that the verdict was excessive by reason of passion and prejudice of the jury. In the course of that opinion the court said:
“We do not see by what rule we are to say that the jury were influenced by passion or prejudice. Does not the fact that they might have found a verdict for five thousand dollars more than they did, completely answer any presumption of that kind? * * * Nothing appears from which we can infer any such fact, except the mere assertion of defendants.” Cited with approval in
Nelson v. Johnson,
41 Ida. 697, 243 P. 647.
In
Horn v. Boise City Canal Co.,
7 Ida. 640, 645, 65 P. 145, this court refused to disturb the verdict on the ground
that it was influenced by passion and prejudice and used the following language, quoting in part from American and English Encyclopedia of Law, 2nd edition:
“ ‘The real question in all these cases is not whether the amount of damages awarded by the jury is more or less than is, in the opinion of the court, proper, but whether it is shown that the jury have abused the discretion vested in them.’ While it appears to us that the verdict of the jury is for rather a large amount for the injury received, yet under the evidence in the record, which we have carefully examined, we do not feel authorized to disturb the verdict upon the ground that the jury has abused the discretion vested in it, or that the jury has given an excessive verdict for damages while acting under the influence of passion or prejudice.”
In
Marckwardt v. Hayworth,
127 C.A. 738, 16 P. (2d) 328, the following language is used:
“Appellant’s final complaint is that the damages awarded to respondent are excessive. In order that this objection may be efficacious, it must appear that the judgment is ‘so plainly and outrageously excessive as to suggest, at the first blush, passion, prejudice or corruption on the part of the jury’.”
In
Mohn v. Tingley,
191 Cal. 470, 217 P. 733, in the syllabus of that opinion it is said:
“Appellate courts are not concerned with question of preponderance or substantial character of evidence, but only as to whether there is any evidence tending to support a verdict.”
In that case a verdict for $100,000, was awarded by the jury for alienation of a husband’s affections, and that court said: “while the verdict in this case is very large, we cannot say under the evidence that it is so excessive as to suggest, ‘at the first blush, passion or prejudice or corruption on the part of the jury’.”
No particular uniformity exists in the cases awarding damages for alienation of affections, but the analysis of the following justifies us in reducing the verdict and judgment herein as excessive: in
Marckwardt v. Hayworth,
supra, $15,000 was reduced to $7,500; in
Fitzpatrick v. Clark,
26 C.A. (2d) 710, 80 P. (2d) 183, $30,000 was reduced to $22,500; in
Jones v. Jones,
96 Wash. 172, 164 P. 757, $25,-000 was reduced to $12,500; in
Thompson v. Thompson,
166 Wash. 270, 6 P. (2d) 617, $7,500 was reduced to $2,500
(over half);
Clark v. Orr,
127 Fla. 411, 173 So. 155, $25,000 was reduced to $5,000 (a four-fifths
reduction); Hendrick v. Biggar,
136 N.Y.S. 306, $75,000 was reduced to $30,000 (over half);
Smith v. Smith,
192 Mich. 566, 159 N.W. 349, $12,000 was reduced to $6,000;
Heisler v. Heisler,
Iowa 127 N.W. 823, $7,000 was reduced to $2,000 (reduced over two-thirds); and in
Warren v. Graham,
174 Iowa 162, 156 N.W. 323, $4,875 was reduced to $2,000 (over half).
It is thus apparent that courts have not considered that a reduction of more than half of the original amount was unauthorized as showing bias, passion, or prejudice demanding a reversal rather than reduction.
Accordingly, the judgment will be affirmed in the amount of $20,000 compensatory damages and $1,000 punitive damages on the condition that the respondent within thirty days of the going down of the remittitur accept such reduction and the judgment so modified. On failure to do so, the judgment will be reversed in toto and a new trial granted.
(Kinzell v. Chicago etc. Ry. Co.,
33 Ida. 1, 190 P.255.)
Costs to respondent.
Holden, C.J., and Givens, J., concur.