Byrnes v. Butte Brewing Co.

• Decision Date: 23 December 1911
• Citation: 119 P. 788,44 Mont. 328
• Parties: BYRNES v. BUTTE BREWING CO.
• Court: Montana Supreme Court

119 P. 788

44 Mont. 328

BYRNES v. BUTTE BREWING CO.

Supreme Court of Montana

December 23, 1911

Appeal from District Court, Silver Bow County; John B. McClernan Judge.

Action by Thomas V. Byrnes, by Thomas Byrnes, his guardian ad litem against the Butte Brewing Company. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Affirmed.

Maury & Templeman and J. O. Davies, for appellant.

Kirk Bourquin & Kirk, for respondent.

SMITH J.

The complaint charges that the plaintiff, a boy about four years of age was injured by being run over by a beer wagon belonging to the defendant corporation, driven by Michael Walsh, its employé. Quoting: "The said Michael Walsh, then and there, at said time and place, without heeding in what manner the team was traveling upon the street, and without having in his hands the reins with which to guide said team, and without observing a proper or any lookout ahead, did thereby negligently and carelessly suffer and permit the said team to approach and run down the plaintiff and the wagon to pass over the plaintiff, and said team and wagon did then and there collide with, strike, and bruise and run over the plaintiff." Defendant had a verdict, upon which judgment was entered. Plaintiff appeals from the judgment, and also from an order refusing to grant a new trial. The record is barren of objections and exceptions.

1. The testimony is conflicting. Indeed, some of the plaintiff's witnesses contradict themselves and each other, and the testimony of certain of defendant's witnesses is irreconcilable. Two witnesses for the plaintiff testified that they saw the wagon run over the boy, and one of defendant's witnesses declared that she also saw the wheels pass over him. On the other hand, the driver and one Bennetts, who was with him on the seat of the wagon, declared that they did not see the boy at all until they heard a woman scream, and then, looking back, they observed him in the act of arising to his feet, 12 or 15 feet behind the wagon "out three or four feet from the wagon." The horses were "barely moving." The wagon with its contents weighed over three thousand pounds. There was testimony to justify the conclusion that the child was but slightly injured. Walsh and Bennetts testified that they felt no jar or anything to indicate that the wagon had passed over any body or other substance. The burden of proof was on the plaintiff. Under these circumstances we think the jury was warranted in concluding that the child was not run over by the wagon. Discarding the testimony that he was run over, there is not anything in the record to indicate how he received whatever injuries he sustained on the day in question. At the moment when the scream was heard by Walsh and Bennetts, the former was saying to the latter, "Watch the horses make the turn themselves," and appellant's counsel argue that this bit of testimony indicates that Walsh was negligent as a matter of law. There is testimony to the effect, however, that at the time of making the remark he was driving with "tight reins," and the horses had not yet reached the place where the turn was to be made.

2. Other assignments of error, based upon alleged erroneous admissions of evidence and erroneous instructions, are argued in the brief. Plaintiff's counsel contend that the rights of a minor cannot be waived by failure of his counsel to make objections and save exceptions during the course of the trial, and therefore they must be permitted, for the first time, in this court, to point out errors alleged to have been committed in the court below. They quote from 22 Cyc. p. 663, to the effect that a guardian ad litem or next friend can make no concessions, or waive or admit away any substantial rights of the infant, or consent to anything which may be prejudicial to him. They also cite the following cases: Taylor v. Rowland, 26 Tex. 293, where the court reversed a judgment for damages sustained by reason of the breach of a parol agreement for the conveyance of land, on a point not made in the trial court; it appearing that one of the defendants was a minor whose general guardian had not been made a party; neither had a guardian ad litem been appointed, although no exception on this ground had been taken in the court below.

In Boerum v. Schenck, 41 N.Y. 182, the Court of Appeals discovered that by inadvertence an error in figures had crept into the decree of the court below, to the prejudice of the infant defendant. Mr. Justice Woodruff, speaking for the court, said: "I am aware that no such objection to the decree was raised on this appeal; the amount involved in this correction is not large. No doubt, the far greater importance of the main question has caused that error to be overlooked. But the defendant is an infant and ought not to be permitted to suffer in a court of equity by any purely technical omission, when the court clearly sees that an error has occurred to her prejudice."

Barnard v. Barnard, 119 Ill. 92, 8 N.E. 320, was a bill in equity against a widow for assignment of dower and partition. The complainant was a minor. The trial court found, on the testimony of the widow alone, that the sum of $1,200, alleged to have been loaned by her to her husband in his lifetime, was a charge upon the realty sought to be partitioned. The Supreme Court said: "This is supported by the testimony of the claimant and widow of the deceased, alone. She was clearly an incompetent witness for this purpose. *** The complainant being a minor, the question of the incompetency of the testimony has not been waived. *** Nor is any satisfactory reason shown why this claim was not probated against the estate. Not having pursued her remedy in the county court within a reasonable time, she is deemed to have waived it."

Glade Coal Mining Co. v. Harris, 65 W.Va. 152, 63 S.E. 873, was an action to enforce the specific execution of an option contract. The court said: "What shall we do with the decree against the infant defendants? [The plaintiff is] clearly not entitled to a decree against them. *** We do not find that the question now for decision has heretofore been directly decided by this court, but in other jurisdictions it has, and held that the rule that it is the duty of the courts to protect the interests of infant litigants applies to an appellate court into which the case is brought as well as to the trial court, and hence that on appeal the infant will be given the benefit of every defense of which he could have availed himself, or which might have been interposed for him in the trial court, and that where the record shows error, as to a minor defendant, the judgment will be reversed, though there is no appeal on his part, it being the duty of the chancellor, as the guardian of infants, to protect their rights."

Spradlin v. Stanley's Adm'r, 124 Ky. 701, 99 S.W. 965, was a proceeding by an administrator and others for the settlement of an estate and a sale of so much of the real property as might be necessary to pay debts. The widow and children of deceased were made parties, and from a judgment allowing claims and approving a sale of real estate they appealed. The children were represented by a guardian ad litem. The sale was confirmed without objection. The objection made in the appellate court for the first time was that the claims were not properly verified. The Court...