Bagyi v. Miller

• Decision Date: 28 September 1965
• Citation: 32 O.O.2d 518,210 N.E.2d 887,3 Ohio App.2d 371
• Parties: , 32 O.O.2d 518 BAGYI, a Minor, Appellee, v. MILLER, a Minor, Appellant.
• Court: Ohio Court of Appeals

Page 371

3 Ohio App.2d 371

210 N.E.2d 887, 32 O.O.2d 518

BAGYI, a Minor, Appellee, v. MILLER, a Minor, Appellant.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Sept. 28, 1965.

Green, Schiavoni, Murphy & Stevens, Youngstown, for appellee.

Stephens, Stephens & Wilkes, Youngstown, for appellant.

LYNCH, Judge.

This is an appeal on questions of law from a verdict and judgment for $10,000 for plaintiff-appellee in the Court of Common Pleas for damages resulting from personal injuries sustained by plaintiff-appellee when the automobile in which she was a passenger was involved in an accident with an automobile driven by defendant-appellant. A motion for new trial by defendant-appellant was overruled.

The first assignment of error is that the trial court erred to the prejudice of defendant-appellant in his general charge to the jury on damages. The court charged the jury that if they found that the defendant-appellant was negligent, the plaintiff-appellee would be entitled to recover compensation for injuries proximately received therefrom which included any expense incurred as a direct result of these injuries and any expense which would be incurred, with reasonable certainty, in the future as a result of these injuries.

The petition made a claim for expenses incurred by plaintiff-appellee. However, defendant-appellant contends that there was a lack of evidence showing that the minor plaintiff-appellee had incurred these expenses or contracted therefor; and in the absence of any such testimony, these expenses are the subject of an action by the father rather than the minor child.

An examination of the transcript and bill of exceptions reveals that defendant-appellant did not take issue with this claim of the minor plaintiff-appellee for expenses in the trial court; thus, this issue is being raised for the first time in this court.

The minor plaintiff testified that she resides at 876 East Waterloo, Suffield, Ohio, which is also the same residence of her father; that she was nineteen years old, had graduated from high school and was presently unemployed but had worked temporarily at a bank. She further testified that she had received a bill from Dr. Stechschulte for $10 for his medical services, and also bills from St. Elizabeth Hospital for 25 for X-rays and $31 for emergency treatment. There was no evidence that the minor plaintiff paid the medical bills from her own personal earnings.

The presumption is that a minor child living with his parents is not emancipated. The burden of proof as to emancipation of the child is on the one asserting it. Seitz v. Witzberger, 18 Ohio Cir.Ct.R.,N.S., 160, 32 Ohio Cir.Dec. 655, affirmed 88 Ohio St. 579, 106 N.E. 1076, 39 American Jurisprudence 732, Parent and Child, Section 86; 67 C.J.S. Parent and Child § 52, p. 755.

We hold that the evidence in this case is insufficient to prove the emancipation of the minor plaintiff.

The general rule is that damages for medical and other expenses necessarily incurred for the treatment of the injuries of an unemancipated minor child belong to the parents. Clark v. Bayer, 32 Ohio St. 299, 30 Am.Rep. 593; Marmorstein, Recr., v. Schuck, 29 Ohio App. 299, 163 N.E. 508; Seitz v. Witzberger, 18 Ohio Cir.Ct.R.,N.S., 160, 32 Ohio Cir.Dec. 655; 41 Ohio Jurisprudence (2d) 368-370, Parent and Child, Section 51, 39 American Jurisprudence 725, Parent and Child, Section 80.

The issue for this assignment of error is whether the father of the minor plaintiff waived or relinquished his right to recover damages for medical expenses because of injuries to his unemancipated minor daughter by bringing this action as next friend of his minor daughter, in which a claim was made for such expenses, and by testifying on behalf of his minor daughter. A research of the Ohio cases was made and no recent case on this issue was found. There are several relatively older cases which arrive at conflicting results.

In Furste v. Henderson Lithographing Co. (1911), 13 Ohio Cir.Ct.R.,N.S., 536, 23 Ohio Cir.Dec. 645, the father, as next friend of his minor son, first filed an action in the United States Court wherein judgment was rendered for defendant. The father then filed an action for loss of services of the son during minority. The trial court's dismissal of plaintiff's petition was affirmed by the appellate court, the syllabus of whose opinion reads as follows:

'Where a father a next friend has prosecuted an action for his minor son for recovery of all damages from injuries resulting to the said son on account of the alleged negligence of the defendant, including his loss of earning capacity during minority, he can not after the determination of that action prosecute another on his own behalf for loss of services of the son during minority.'

The Supreme Court reversed the Furste v. Henderson Lithographing Co. case without opinion, as reported in 88 Ohio St. 537, 106 N.E. 1058. However, the grounds stated in the journal entry of the Supreme Court for reversing the circuit court appear in 11 Ohio Law Reporter 1. Pertinent excerpt is as follows:

'* * * this court finding that, although a father may, by bringing an action as the next friend of his son, in which action damages are claimed for loss of services or other damage to which the father, in his individual capacity, would have been entitled, is estopped from afterwards maintaining a suit in his own name for damages so claimed, still no such claim is shown to have been made in the case filed by the plaintiff herein as next friend of his son in the United States Court.'

In Aulen v. Cantor (1912), 13 Ohio N.P.,N.S., 599, 30 Ohio Dec. (N.P.) 665, the court held that in an action by a minor through his father as next friend for damages for personal injuries, a motion lies to strike from the petition items of expense for board, lodging and medical care; however, the court said that if the action had proceeded and the defendant had paid the minor these items, the father, being the next friend in the action and having consented to the payment to the child, could not recover in a separate action.

On the other hand there are several Ohio cases which hold that an unemancipated child, suing by his father or mother as next friend, cannot recover damages for medical expenses. Tuttle v. Furi (1908), 22 Ohio Cir.Ct.R.,N.S., 388, 33 Ohio Cir.Dec. 626; Cincinnati Traction Co. v. Wooley (1906), 4 Ohio N.P.,N.S., 122, 6 Ohio N.P.,N.S., 444, 17 Ohio Dec. (N.P.) 19, affirmed 77 Ohio St. 642, 84 N.E. 1135; Landneier v. Cincinnati Street Ry. Co. (1900), 7 Ohio N.P. 188, 4 Ohio Dec. (N.P.) 265.

However, all the above cases were decided prior to either Furste v. Henderson Lithographing Co., supra, or Aulen v. Cantor, supra, so that the latter two cases seem to be the most recent authority in Ohio on this issue. The decision in Furste v. Henderson Lithographing Co., supra, is in agreement with the trend of cases in other states which is ably expressed in 67 C.J.S. Parent and Child § 43, pp, 747-748, as follows:

'A parent may waive or be estopped to assert his right to recover for medical expenses, loss of services, etc., by reason of injury to his minor child, and permit the child to recover the full amount to which both would be entitled, as where the parent as next friend brings an action on behalf of the child for the entire injury, or permits the case to proceed on the theory of the child's right to recover for loss of services and earning capacity during minority and for medical or other expenses. In such case the parent treats the child as emancipated in so far as recovery for such damages is concerned, and may not thereafter be permitted to claim that he, and not the child, was entitled to recover therefor. There is no waiver, however, where the parent is not shown to be connected in any way with the child's action, or to have had notice thereof, beyond the fact that the child lived with him; nor does the parent waive his right of action by suing as next friend for the child's pain and suffering and permanent impairment of earning capacity after majority, or by participating in the child's action for claim where the child is not claiming damages to which the parent is entitled.'

See 39 American Jurisprudence 728, Parent and Child, Section 83; 32 A.L.R.2d 1083; 37 A.L.R. 64-65.

There are Ohio cases to support the latter part of the above citation, which limits this rule of law to situations when the parent as next friend brings an action on behalf of his minor child for damages that normally belong to him, such as medical expenses. If the parent has not included these damages in the action that he filed on behalf of his minor child, the parent can file a separate action for these damages in his individual capacity, and he not precluded from maintaining such an action by an adverse judgment against his minor child. Krisher v. McAllister, 71 Ohio App. 58, 47 N.E.2d 817; Videtto v. Marsh, 112 Ohio App. 151, 175 N.E.2d 764.

We, therefore, hold that the charge of the trial court to the jury on damages was proper.

The second assignment of error is that the trial court erred in admitting evidence over the objection of defendant-appellant in regard to future damages by a person not qualified to testify on such subject. A plastic surgeon had testified that plastic surgery would be necessary to remove the scar on plaintiff's nose as well as possibly some other scars, and that this would require hospitalization for three or four days and anesthesia. Andrew Bagyi, father of plaintiff-appellee, testified as to his hospitalization for plastic surgery to his ear, in Akron, Ohio, which is in the vicinity of plaintiff-appellee's residence. He stated that he paid $24 a day for a semi-private room in the City Hospital, $75 of the operating room and $35 for the anesthesia.

The general rule is that in personal injury actions the plaintiff may recover for the necessary and reasonable expense caused by the...