Galveston, H. & S. A. Ry. Co. v. Jackson

• Decision Date: 28 January 1903
• Parties: GALVESTON, H. & S. A. RY. CO. v. JACKSON.
• Court: Texas Court of Appeals

71 S.W. 991

GALVESTON, H. & S. A. RY. CO. v. JACKSON.

Court of Civil Appeals of Texas.

January 28, 1903.

Appeal from district court, Caldwell county; L. W. Moore, Judge.

Action by Cassiano Jackson, by next friend, against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

McNeal & Ellis and Baker, Botts, Baker & Lovett, for appellant. E. B. Coopwood, A. B. Storey, and G. W. Allen, for appellee.

KEY, J.

This is a personal injury suit, resulting in a verdict and judgment for the plaintiff, and the defendant has appealed.

The plaintiff is a minor, 13 years of age, and sues by Orange Jackson, his father, as next friend. The court's charge on the measure of damages is as follows: "If you find for plaintiff, you will find that amount as will be a fair and just compensation for his injury, estimating his diminished or impaired reasonable ability to earn wages during the expectancy of his life, by virtue of his injury, according to the proof before you." Error is assigned upon this charge, because it permitted a recovery for the benefit of the minor child on account of diminished capacity to earn wages during his minority. As the services of a minor child belong to the parent, it has been held in this state that instructions similar to the one in question constitute reversible error. Railway Co. v. Miller, 51 Tex. 275; Railway Co. v. Evansich, 63 Tex. 54; Railway Co. v. Morin, 66 Tex. 225, 18 S. W. 503. While conceding the proposition of law that the services of a minor belong to his father, and that the latter can maintain an action to recover for loss thereof, counsel for appellee contend that, when the father sues as next friend of the minor, and recovers such damages on behalf of the minor, he waives his right to recover therefor himself, and in support of that contention Abeles v. Bransfield, 19 Kan. 20, and Baker v. Railroad Co., 91 Mich. 298, 51 N. W. 897, 16 L. R. A. 154, 30 Am. St. Rep. 471, are relied on. The cases referred to seem to sustain appellee's contention, but the same contention was made in Railway Co. v. Morin, supra, and the Kansas case was there reviewed, and in the course of the opinion our supreme court said: "In Abeles v. Bransfield, 19 Kan. 16, it was held that, when a mother, the surviving parent, commenced and prosecuted to judgment in her son's name, and as his next friend, an action for injuries to his person, the judgment would not be reversed, though it was shown that the mother had never relinquished to her son her right to his services, otherwise than by commencing and prosecuting the action. The grounds for damages which were set out in the petition in that case were, however, except as to money expended by the son, such as would ordinarily give cause of action to the parent alone for loss of services of her child during minority. The court in that case evidently held that the assertion by the parent, as next friend, as ground for damages in favor of her son, of such matters as would ordinarily give cause of action only to the parent, operated to...