Allen v. Arthur

• Decision Date: 27 October 1966
• Docket Number: No. 20464,No. 1,20464,1
• Citation: Allen v. Arthur, 139 Ind.App. 460, 220 N.E.2d 658 (Ind. App. 1966)
• Parties: C. William ALLEN, Administrator of the Estate of Marcus Lee Harmon, Deceased, Appellant, v. Gerald F. ARTHUR, by his next friend, N. George Nasser, Appellee
• Court: Indiana Appellate Court

Page 658

220 N.E.2d 658

139 Ind.App. 460

C. William ALLEN, Administrator of the Estate of Marcus Lee Harmon, Deceased, Appellant, v. Gerald F. ARTHUR, by his next friend, N. George Nasser Appellee.

No. 20464.

Appellate Court of Indiana, Division No. 1.

Oct. 27, 1966.

[139 INDAPP 461]

Dix, Dix, Patrick, Ratcliffe & Adamson, D. Joe Gabbert, Terre Haute, for appellant.

N. George Nasser, Charles W. Vincent, Terre Haute, for appellee.

FAULCONER, Judge.

This action was brought by appellee, Gerald F. Arthur, by his next friend, N. George Nasser, to recover damages for personal injuries allegedly sustained as the result of an automobile collision occasioned by the alleged negligence of appellant's decedent.

Trial was by jury which rendered a verdict for appellee, and consistent judgment was entered thereon.

The sole error assigned for reversal is that the court erred in overruling appellant's motion for new trial.

Appellant argues as error only the giving of plaintiff-appellee's tendered Instruction No. 21. Appellee states in his answer brief, at page 5, that:

'Appellant's written objections directed to the giving of said instruction and presented in full in the argument portion of his brief comprise six rhetorical paragraphs. However, a close perusal of those paragraphs leads to the conclusion that rhetorical paragraphs one, two and four thereof are the only paragraphs to which the one proposition contained in appellant's argument could be applied and designed to support.'

Rhetorical paragraphs 1, 2 and 4 of appellant's objections to appellee's Instruction No. 21 are as follows:

'1. Said instruction allows the jury to take into consideration in the assessment of damages any loss which the plaintiff has sustained in the way of earnings without limiting said loss of earnings to that period of time on or after February 5 of 1960.

'2. That the undisputed evidence is that the plaintiff was a minor of the age of 17 years and that he resided in the household of his mother and that parental control was [139 INDAPP 462] exercised over him by his mother during the period of October 19, 1957 to February 5, 1960. That as such the sole surviving parent, Mrs. Arthur, had the right under Burns 2--217 (Acts 1951, ch. 112, § 1, p. 307, § 2--217, Burns' 1966 Cum.Supp.) to the earnings of the plaintiff and that such earnings were not an item of damage to him personally.

'4. The defendant further objects to the last sentence or phrase in the first paragraph of said instruction which allows the jury to consider any reasonable medical and hospital expenses necessarily incurred by reason of such injuries and also any which may be incurred in the future in spite of the fact that the evidence in this case does not show that the medical and hospital expenses introduced were reasonable and the undisputed evidence shows that the plaintiff was a minor of the age of 17 years and was unemancipated in which case the sole surviving parent of said minor was responsible for the necessaries furnished to minor and was entitled to the recovery therefor under Burns 2--217 (§ 2--217, supra).'

Appellant cites as one authority for reversal the statement of our Supreme Court in Chicago, etc., R. Co. v. Seaman (1914), 182 Ind. 370, at page 371, 105 N.E. 234, that:

'It is well settled that, unless emancipated, a minor, in an action for personal injuries, is not entitled to recover for loss of time, loss of wages, or decreased earning power during his minority, for the reason that his wages earned during that period belong to his parents.'

Appellee alleged in rhetorical paragraph one of his amended complaint that 'he is a minor and his age is 17 years and he brings that action by next friend.' This action was tried under Acts 1955, ch. 257, § 1, p. 666, § 2--403, Burns' 1966 Cum.Supp., limiting recovery to a maximum of $5,000, and reasonable hospital and medical expenses. Appellee prayed judgment in the sum of $6,713.90, and the jury returned a verdict of $6,600, in which latter amount judgment was entered.

The issue presented to us in this appeal is whether the evidence supports the giving of Instruction No. 21. The instruction was proper and, therefore, the judgment is correct if the [139 INDAPP 463] evidence supports either, that appellee was an emancipated minor at the time of the accident or, if he was not emancipated until his marriage 27 months after the accident, the evidence after his marriage would substantiate the amount awarded. In other words, if appellee was not emancipated, viewing the evidence in his favor, until his marriage, then certain damages suffered during the time of his being unemancipated would not be proper consideration for the jury in assessing the amount of damages. These damages would be recoverable by his parent under the law and not by him.

Emancipation, as applied to the relinquishment of the claim to services of a minor child, means to free a child for all period of its minority, from care, custody, control and service: Corbridge v. Corbridge (1952), 230 Ind. 201, 208, 102 N.E.2d 764; Wabash R. Co. v. McDoniels (1915), 183 child's wages--even during minority--and Co. v. Tackett, Admr. (1943), 113 Ind.App. 307, 311, 47 N.E.2d 851.

'If the child has been emancipated, the parents are no longer entitled to the childhs wages--even during minority--and the right to recover for lost time and impaired earning capacity is in the child.' 22 Am.Jur., 2d, Damages, § 101, p. 149.

Jenison and Others v. Graves and Another (1831), 2 Blackf. 440, 450.

What constitutes emancipation of a minor child is a question of law, but whether there has been an emancipation is a question of fact. Stitle v. Stitle (1964), 245 Ind. 168, 197 N.E.2d 174, 182; Corbridge v. Corbridge, supra (1952), 230 Ind. 201, 208, 102 N.E.2d 764; 22 I.L.E., Parent and Child, § 18, p. 366.

Emancipation of a child is never presumed but must be established by competent evidence, although to do so does not require proof of an express or formal contract. Surface v. Dorrell (1944), 115 Ind.App. 244, 250, 57 N.E.2d 66 (Transfer denied); 22 I.L.E., Parent and Child, § 18, pp. 366--367, supra, and cases there cited.

[139 INDAPP 464] Emancipation may be shown by circumstantial evidence, by express agreement, or by the conduct of the parties, or by the acts and conduct of the parent and child. Hensley, Admr. v. Hilton (1921), 191 Ind. 309, 318, 131 N.E. 38; Robinson & Company v. Hathaway, et al. (1898), 150 Ind. 679, 683, 50 N.E. 883; Surface v. Dorrell, supra; Storey, etc. Piano Co. v. Davy (1918), 68 Ind.App. 150, 157, 119 N.E. 177.

We cannot agree with appellant's contention that the evidence is 'undisputed' that appellee was unemancipated. However, we are of the opinion that the evidence produced by appellee on the issue of appellee's emancipation was insufficient to support a finding that he was emancipated prior to his marriage. The only evidence produced by appellee as to his being emancipated (prior to his marriage) was to the effect that prior to and at the time of the accident he was employed at a filling station on Saturdays and Sundays and was paid $7.50 per day; that his mo...