Clarke v. Elghth Ave. R. Co.

• Decision Date: 20 May 1924
• Citation: 238 N.Y. 246,144 N.E. 516
• Parties: CLARKE v. ELGHTH AVE. R. CO.
• Court: New York Court of Appeals Court of Appeals

238 N.Y. 246

144 N.E. 516

CLARKE

v.ELGHTH AVE. R. CO.

Court of Appeals of New York.

May 20, 1924.

Action by Thomas Clarke against the Eighth Avenue Railroad Company. From a judgment of the Appellate Division, First Department (207 App. Div. 905,202 N. Y. Supp. 920), affirming judgment for plaintiff, defendant appeals by permission.

Reversed, and new trial granted.

Appeal from Supreme Court, Appellate Division, First Department.

William J. Curtin and Michel Kirtland, both of New York City, for appellant.

Harold R. Medina, Moses Feltenstein and R. Waldo MacKewan, all of New York City, for respondent.

McLAUGHLIN, J.

On the 20th of August, 1920, the plaintiff's son, then between eight and nine years of age, was struck by one of the defendant's cars and sustained personal injuries which necessitated the amputation of his legs below the knees. The father brought this action to recover for the loss of services of his son, expenses incurred for care, medical treatment, and the furnishing and keeping in repair of artificial limbs. He had a verdict for $15,000, and the judgment entered thereon was unanimously affirmed by the Appellate Division and leave to appeal denied. Such leave, however, was given by this court.

Prior to the trial of the present action, the father, as the guardian ad litem of his son, brought an action to recover damages for the son's injuries. That action was tried prior to this and the plaintiff had a verdict for $42,500. The judgment entered on that verdict was unanimously affirmed by the Appellate Division, and no appeal taken therefrom. After such affirmance the defendant paid to the father, he in the meantime having been appointed general guardian, the amount of the judgment. At the trial of the present action, the judgment in the other action having been paid, the defendant conceded its negligence. After such concession the only question litigated and submitted to the jury was the amount of damage to which the plaintiff was entitled. It was conceded that the plaintiff was entitled to recover the value of the services of the son during his minority, less what it would have cost during such time to care for and maintain him had he not been injured.

It was, however, seriously contended by defendant that the plaintiff was not entitled to recover, in addition thereto, the value of prospective medical treatment and increased expenses for care and maintenance beyond the date of the trial. The court held otherwise, against the objection and exception of defendant's counsel, and testimony was admitted as to what medical treatment would, with reasonable certainty, be required, and its probable cost, prior to the time the son become 21 years of age; also, during that time, the increased expense for care and maintenance which would be required as well as the cost of replacing and keeping in repair the artificial limbs, and the fact that for such items the father had, prior to the trial, expended $1,088.

The case was submitted to the jury with instructions that it could include in its verdict the cost of these items, in addition to the value of the lost services. Exceptions were duly taken to such instruction.

After the $42,500 was paid, the father obtained from the Surrogate's Court an order permitting him to take therefrom and pay to himself, personally, $1,088, the amount theretofore paid by him for the son's benefit; also permitting him to take from the income of the fund, and use for the support, education, and maintenance of the son, $125 per month.

The validity of the judgment appealed from is challenged upon two grounds: (1) The admission of testimony as to prospective medical treatment, its cost, and the increased cost of care and maintenance; and (2) permitting the plaintiff to recover the $1,088 paid or incurred by him prior to the trial. These alleged errors will be considered in the order stated.

[1] First. The plaintiff was entitled to recover, the injuries and negligence being conceded, an amount which the jury might fairly say from the evidence was sufficient to compensate him for the prospective loss of services of the infant during his minority, less what it would have cost to have supported and maintained him during that time had he not been injured. He was also entitled to recover, unless otherwise paid, the expenses actually and necessarily paid out or incurred by him for medical treatment and increased care and maintenance prior to the trial. I do not think, however, that he was entitled to recover, during the infant's minority, the estimated cost of prospective medical treatment, or the estimated cost of the increased care and maintenance subsequent to the trial. These were items of damage which personally belonged to the infant, and had to be recovered, if at all, and probably were taken into consideration by the jury, in the action brought for his benefit. The infant, and not the father, was entitled to a recovery for these items. This seems to me much the better rule for the infant in an action of this character. It insures that whatever sum is recovered will be more likely to be used for the infant's benefit than if a recovery be permitted by the parent. Obviously, both cannot recover. If the infant recover, then, usually, security has to be given to insure the proper use and disposition of the sum awarded. On the other hand, if the parent be permitted to recover, then the recovery becomes his property. He can do with it as he sees fit. He can will it away, or, if he dies without a will, it becomes part of his estate. In either case, the infant might receive little or no benefit from it. The natural instinct of a parent to properly support his infant children does not always prevail. It is a matter of common knowledge that some do not, and resort has to be made to the statute to compel them to do so. Some parents actually abandon their infant children and leave them objects of charity, or to be maintained and supported by the...