Bernard v. Merrill

• Decision Date: 07 February 1898
• Parties: BERNARD v. MERRILL et al.
• Court: Maine Supreme Court

40 A. 136

91 Me. 358

BERNARD

v. MERRILL et al.

Supreme Judicial Court of Maine.

Feb. 7, 1898.

(Official.)

Exceptions from supreme Judicial court, Androscoggin county.

Action by Timothy Bernard against Dennis D. Merrill and others. Verdict for plaintiff. Heard on exceptions and motion for new trial. Overruled.

This was an action of tort for loss of services of the plaintiff's minor daughter, alleged to have been injured by the defendants' negligence in setting her at work on a machine claimed to be dangerous, without having been instructed by the defendants as to its dangerous character. The defendants pleaded the general issue and brief statement as follows: That this suit ought not to be further prosecuted against them, because they say that heretofore the plaintiff, in his capacity as next friend to Florence K. Bernard, the person in this suit alleged to have been injured by the fault of the defendants, sued out a writ against them, returnable to this court, wherein the same negligence, and none other, was charged against them as in this suit; that he conducted said suit, and on the 30th day of April, A. D. 1896, on issue duly joined, a verdict was rendered against the plaintiff, and Judgment was duly rendered thereon May 9, 1896, in favor of them, the said defendants, which said judgment remains in full force, and not reversed or annulled, etc.

The presiding justice ruled that the facts set out in the brief statement (which were admitted by the plaintiff) would not be a bar to the present suit.

The defendants also requested the presiding justice to give to the jury certain instructions, and which he declined to do.

These requested instructions are stated in the opinion.

To these rulings and instructions and refusal to instruct, the defendants took exceptions.

Verdict for plaintiff for $612.50.

D. J. McGillicuddy and F. A. Morey, for plaintiff.

Tascus Atwood, for defendants.

HASKELL, J. This is an action by a father for loss of service of his child, an infant, from an injury suffered by the child in the employ of defendants, occasioned by their negligence.

The defendants pleaded in bar of the action a judgment in her favor in a suit by the child for the same injury, which was prosecuted by the father as next friend. The bar was overruled below, and the defendants have exception.

It is contended that the prosecution of the child's suit by the father comes within the rule given In Lander v. Amo, 65 Me. 29, "that a person cannot be bound by a judgment when be is not a party thereto, unless he had a right to appear and take part in the trial, and control or help control the proceeding, and appeal from the verdict or decree obtained therein," or, as said by Bigelow on Estoppel (page 99), "assumed such right."

The father is the natural guardian of his infant children. It is for him to consider in what way they should be maintained and educated, and to judge what is for their benefit both as regards their persons and estates. He is therefore the proper person to conduct litigation in their behalf, and to control the same as next friend, unless his interests be hostile or he be guilty of some default or neglect. Woolf v. Pemberton, 6 Ch. Div. 19; Rue v. Meirs, 43 N. J. Eq. 377, 12 Atl. 369.

The next friend, although not liable for costs in this state (Leavitt v. Bangor, 41 Me. 458; Soule v. Winslow, 64 Me. 518; Sanford v. Phillips, 68 Me. 431), may control the prosecution of the suit. Even should the infant employ counsel, who procures the suit dismissed, the entry would be void, because the infant could not appear by attorney, as the employment would be null. Wainright v. Wilkinson, 62 Md. 146.

The doctrine of these authorities gives a father, except for cause, the right, as next friend, to control the litigation of his infant children. No matter whether he does or no, he has the right to. Does this right so far make him a party to the suit as to personally bind him by the result? This right, while a personal one, is to be exercised for the child. The suit is the child's suit. Damages recovered belong to the child. It is doubtful if the father, who prosecutes as next friend, can discharge the judgment, as it is said his authority is only commensurate with the writ. Miles v. Boyden, 3 Pick. 219; Linton v. Walker, 8 Fla. 144; Perry v. Carmichael, 95 Ill. 519; Clark v. Smith, 13 S. C. 585; Jackson v. Combs, 7 Cow. 36; Rotheram v. Fanshaw, 3 Atl. 628; Tripp v. Gifford, 155 Mass. 108, 29 N. E. 208; Johnson v. Waterhouse, 152 Mass. 585, 26 N. E. 234. He, in law, is a different person individually than when acting for the child and in its stead, although his right to so act flows from the parental relation. He cannot individually have the fruit of the litigation, although indirectly he may be benefited thereby. The authorities sustain this view. In Marshall v. Rough, 2 Bibb, 628, a judgment against a man individually concerning the title to land was held no bar to a subsequent suit for the same land by infants prosecuted by him as guardian and next friend. In Leavitt v. Bangor, supra, it is held that the next friend, who prosecutes the suit, was not a party, so as to exclude his wife as a competent witness for the plaintiff.

The rule is very neatly stated by Quain, J., in Leggott v. Railway Co., 1 Q. B. Div. 606: "It must be observed that a verdict against a man suing in one capacity will not estop him when he sues in another distinct capacity, and, in fact, is a different person in law." There an administratrix sued under Lord Campbell's act, and recovered £500 damages for the family of the intestate, who lost his life from the fault of defendant. Afterwards she sued for damages resulting to his estate from the same injury, and invoked the former judgment as an...