Chicago, South Bend And Northern Indiana Railway Company v. Seaman

• Court: Indiana Supreme Court
• Writing for the Court: Spencer, J.
• Citation: Chicago, South Bend And Northern Indiana Railway Company v. Seaman, 105 N.E. 234, 182 Ind. 370 (Ind. 1914)
• Decision Date: 21 May 1914
• Docket Number: 22,307
• Parties: Chicago, South Bend and Northern Indiana Railway Company v. Seaman

105 N.E. 234

182 Ind. 370

Chicago, South Bend and Northern Indiana Railway Company v. Seaman

No. 22,307

Supreme Court of Indiana

May 21, 1914

Rehearing Denied November 11, 1914.

From Elkhart Circuit Court; James Story Drake, Judge.

Action by Robert Seaman, by his next friend, Joseph B. Seaman against the Chicago, South Bend and Northern Indiana Railway Company. From a judgment for plaintiff, the defendant appeals.

Reversed.

Harry R. Wair, Anthony Deahl and Perry L. Turner, for appellant.

Willis Rhoads, Frank S. Roby, Ward H. Watson, Sol H. Esarey and Elias D. Salsbury, for appellee.

OPINION

Spencer, J.

Appellee, by his father as next friend, recovered a judgment in the Elkhart Circuit Court against appellant for personal injuries alleged to have been sustained by appellee through the negligence of appellant's servants. This is an appeal from such judgment.

The sole error assigned and relied on for reversal is that the court erred in overruling appellant's motion for a new trial. Under this assignment appellant alleges error in the giving of instruction No. 19 wherein the court told the jury that in determining the amount of damages, if any, to be awarded to the plaintiff, it might consider, among other elements, "any impairment of the earning capacity or physical efficiency which the plaintiff suffers or will suffer on account of the permanent nature of such injuries or any of them, if such impairment is shown." At the time this suit was instituted appellee was less than three years of age. 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. Grand Rapids, etc., R. Co. v. Showers (1880), 71 Ind. 451; Rogers v. Smith (1861), 17 Ind. 323, 79 Am. Dec. 483; Sanitary Can Co. v. McKinney (1913), 52 Ind.App. 379, 100 N.E. 785; Cole v. Searfoss (1912), 49 Ind.App. 334, 97 N.E. 345. The instruction now under consideration not only permits a recovery for the impairment of earning capacity or physical efficiency in the future but also charges that the plaintiff may recover for such impairment as he now suffers. This is error. Any damages accruing during appellee's minority by reason of the impairment of his earning capacity could be recovered only in an action brought by his...