Ellington v. Bradford

• Decision Date: 20 April 1955
• Docket Number: No. 457,457
• Citation: 86 S.E.2d 925,242 N.C. 159
• Court: North Carolina Supreme Court
• Parties: Helen Gayle ELLINGTON, by her Next Friend, Myritle Ellington, v. Oran BRADFORD and Sanders Motor Company.

Page 925

86 S.E.2d 925

242 N.C. 159

Helen Gayle ELLINGTON, by her Next Friend, Myritle Ellington, v. Oran BRADFORD and Sanders Motor Company.

No. 457

Supreme Court of North Carolina.

April 20, 1955

Lassiter, Leager & Walker, by Wm. C. Lassiter, Raleigh, for defendants-appellants.

Bunn & Bunn, by Thomas D. Bunn, Raleigh, for plaintiff-appellee.

HIGGINS, Justice.

This appeal challenges the right of a minor child to recover medical bills as an element of damages in its action for personal injuries negligently inflicted. The mother instituted this action as next friend. The complaint alleges she is a widow but is silent as to whether the father died before or after the child received the injuries, in the treatment of which the bills were incurred.

In case of injury to an infant by wrongful act, a cause of action in behalf of the parent (the mother if the father is dead) arises, permitting recovery for (1) the loss of earnings of the child during its minority if unemancipated, and (2) expenses incurred for necessary medical treatment. Smith v. Hewett (O'Brien v. Hewett), 235 N.C. 615, 70 S.E.2d 825, 32 A.L.R.2d 1055; Gillis v. Transit Corp. of Norfolk, 193 N.C. 346, 137 S.E. 153; Shipp v. United Stage Lines, 192 N.C. 475, 135 S.E. 339. Likewise, another cause of action arises on behalf of the child to recover damages for pain and suffering, for permanent injury, and for impairment of earning capacity after attaining majority. White v. Holding, 217 N.C. 329, 7 S.E.2d 825. The two causes of action are different. The parties are different. And to combine the two in one action would be a misjoinder. Neither a parent nor a stranger who acts as next friend in bringing a suit for an infant becomes thereby a party to the cause. Rabil v. Farris, 213 N.C. 414, 196 S.E. 321, 116 A.L.R. 1083.

The cases of Pascal v. Burke Transit Co., 229 N.C. 435, 50 S.E.2d 534, and Shields v. McKay, 241 N.C. 37, 84 S.E.2d 286, 288, are in harmony with the foregoing rules. In each of these cases it is held that a parent who as next friend brings and prosecutes an action for his infant child and claims as elements of damage the loss of earnings during minority and expenditures for the treatment of the injuries sustained, is deemed thereby to have waived his individual rights and is estopped to assert them. "'In such a case, the child is entitled to recover the full amount to which both he and his parent would have been entitled if separate suits had been brought, and the parent is estopped from afterwards bringing any action in his own right. '"' Shields v. McKay, supra.

We have not overlooked the possible bearing of G.S. § 44-49 on the question here presented. That section creates a lien upon any sums recovered as damages for personal injury in favor of any physician, dentist, trained nurse, or hospital for medical services rendered and for drugs or medical supplies furnished in the treatment of 'the injury in compensation for which the said damages have been recovered. ' The section also provides, 'Where damages are recovered for and in behalf of minors or persons non compos mentis, such liens shall attach to the sum recovered as fully and effectively as if the said person were sui juris.'

Does the foregoing section change the common-law rule and permit the recovery of expenses for medical treatment as a part of the minor's cause of action? We are of the opinion the section does not change the rule. The lien is created only in cases where the beneficiary may be indebted for the expenses incurred. In the...