Baker v. Flint & P.M.R. Co.

• Decision Date: 08 April 1892
• Citation: 91 Mich. 298,51 N.W. 897
• Parties: BAKER v. FLINT & P. M. R. CO.
• Court: Michigan Supreme Court

51 N.W. 897

91 Mich. 298

BAKER v. FLINT & P. M. R. CO.

Supreme Court of Michigan

April 8, 1892

Error to circuit court, Bay county; GEORGE P. COBB, Judge.

Action by J. H. Baker against the Flint & Pere Marquette Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.

W L. Webber, (T. A. E. Weadock, of counsel,) for appellant.

W C. Green, (Simonson, Gillett & Courtright, of counsel,) for appellee.

LONG J.

This is a suit to recover damages sustained by plaintiff, arising out of the same accident that resulted in his son, Oscar, losing his leg by being run over by defendant's train of cars on November 5, 1886, at Eleventh-Street depot in Bay City, which case is reported in 68 Mich. 90, 35 N.W. 836. The facts are so fully stated in that case that it becomes unnecessary to restate them here. The claim of damages in the present case is for the loss of Oscar's services during minority, and money expended for nursing, medicine, and professional treatment for him. There are but two questions raised upon this record which we need discuss. They relate to the ruling of the trial court, and its charge to the jury upon the questions: (1) Whether the plaintiff is estopped from recovery for loss of his son's services during minority by reason of a claimed recovery for the same services in Oscar's suit, where the plaintiff appeared as his next friend. (2) The ruling of the court upon the question of the plaintiff's contributory negligence as affecting his right of recovery.

As touching the first question, it appears that the defendant under its plea of the general issue, gave notice that the said Oscar Baker mentioned in plaintiff's declaration heretofore brought suit in said court, claiming damages for the same cause of action set forth in the declaration in this cause; that said suit was duly tried by said court and a jury, and judgment was rendered therein in favor of the plaintiff; that judgment and costs of said suit have been paid by the defendant herein to the said James H. Baker as next friend to his said son, Oscar Baker; and that said James H. Baker has signed a receipt therefor in full satisfaction of said judgment and costs. After the jury had been impaneled in the present case, and plaintiff had offered testimony to support his action, defendant's counsel objected to any proof being received under the declaration for the reason that in this court, prior to the commencement of this suit the same plaintiff, James H. Baker, had commenced a suit for the injury of his son, Oscar, in which suit he recovered verdict and judgment, which suit was taken to the supreme court, and there affirmed, and that judgment had been satisfied by the defendant; that in that suit plaintiff had recovered damages for the boy, or for himself as next friend to the boy, for his crippled condition, and his loss of ability to labor, and therefore plaintiff is estopped from maintaining this suit. The court overruled the objection, and rejected the offered proof, to which the defendant excepted. The case then proceeded to trial, and at the close of the testimony the counsel for defendant, in his second request, asked the court to charge the jury as follows: "The plaintiff in this case cannot recover, because he has failed to make out a case, in that ( a) he previously brought a suit in this court as next friend for his son Oscar Baker and recovered, and in his declaration in that suit he complained of the same injury sued on here, and did not limit the claim for damages to those accruing only to said Oscar Baker; (b) because the uncontradicted evidence in this case shows that Oscar Baker was guilty of contributory negligence; ( c) because the uncontradicted evidence in this case shows that the plaintiff and his wife, parents of said Oscar Baker, were guilty of contributory negligence." These requests were refused, and the court charged the jury: "Then comes the loss of the boy's services for the fourteen years without lapse between the time of this accident and the time he would arrive at the age of twenty-one. On the amount of this you have no direct evidence, but you have the evidence derived from an inspection of the boy himself, and the father, and the whole family. * * * One question to be got at in the case of damages is: How much worse off in dollars and cents will this plaintiff, James H. Baker, be by reason of the boy having been crippled in the way he is, counting in the loss of his services, and the expenses of taking care of him while he was sick and in the curing of his wound, and the expense of the nurse?" The court further directed the jury that, as none of the items involved in this suit could be legally proved or recovered for in the suit brought by Oscar, therefore the plaintiff would not be barred from recovering such damages in this action.

We have looked into the former record,-the suit of Oscar against the defendant company,-and find that the declaration in that case contains two counts. The allegation as to damages in the first count is, after stating the injury and the disorders arising therefrom: "He so remained for a long space of time, to-wit, from thence hitherto, during all of which time the plaintiff suffered great pain, and was injured and prevented from doing any work and from attending school, and is still so prevented, all to the damage of the plaintiff," etc. In the second count it is stated that "he so remained for a long space of time, to-wit, from thence hitherto, during all of which time he, the plaintiff, suffered great pain, and was and is injured and prevented from doing any work and from attending school, and is, and always will be, injured and disabled from earning his own living; wherefore the plaintiff says he is injured and has sustained damages," etc. Evidence was introduced under that declaration by the plaintiff to sustain his cause of action, and the court charged the jury as follows: "If you conclude that the plaintiff is entitled to recover, consider then the extent or the amount of damages that he has suffered. * * * Now, in determining that question the jury are to take into consideration the pain and suffering the plaintiff has endured. * * * Also the nature of the injury, and how it will affect him in his future life, so far as ability to earn money is concerned." It will be seen from this that the jury must have taken into consideration, in fixing the amount of damages which Oscar was entitled to recover, his inability to labor from the time the injury occurred during the remainder of his life. The $5,000 which Oscar recovered in his suit included, therefore, the damages which are sought to be recovered by the plaintiff in this suit.

It is contended upon the part of plaintiff's counsel in this court that, though Oscar did recover for the value of such services in his suit, yet the plaintiff in the present suit would not be barred from recovery, or estopped from making claim therefor, for the reason that, as matter of law, Oscar had no right to recover for such damages in his suit. In support of this proposition counsel cites: Wilton v. Railroad Co., 125 Mass. 130; Railroad Co. v. Morin, (Tex. Sup.) 18 S.W. 345; Railroad Co. v. Brinson, 64 Ga. 475; Durkee v. Railroad Co., 56 Cal. 388. As we have before stated, the sole ground upon which the plaintiff's counsel now contends for the right to recover damages in behalf of the father, which have once been recovered in behalf of the child by his next friend, is that the child had no legal right to recover for such damages in the action brought by him. In the case of Railroad Co. v. Morin, supra, the action was brought by the minor, by his father as next friend, against the company for personal injuries. The trial court charged the jury that in estimating damages they had a right to take into consideration his capacity to earn money. This was held error, for the reason that the services of the infant belonged to the parent during his minority, and not to the infant, unless it was shown that the child had been emancipated by the parent; and the court cited in support of this, Railroad Co. v. Miller, 51 Tex. 275, and Sawyer v. Sauer, 10 Kan. 519. The question of the right of the father to recover such damages, though the same had been recovered by the infant in another action, was not involved in the case.

In Durkee v. Railroad Co. the action was by the father to recover damages for negligent injury to his infant son, and it was said by the court that "whatever was merely personal to the infant should not enter into what was the father's damages, because for them the...