Gumienny v. Hess

• Decision Date: 30 June 1938
• Docket Number: No. 59.,59.
• Citation: 285 Mich. 411,280 N.W. 809
• Parties: GUMIENNY v. HESS et al.
• Court: Michigan Supreme Court

285 Mich. 411

280 N.W. 809

GUMIENNY

v.HESS et al.

No. 59.

Supreme Court of Michigan.

June 30, 1938.

Action by Peter Gumienny against Edwin J. Hess and another, doing business as the Hess Cartage Company, and others, for consequential damages suffered by reason of injury to plaintiff's son. From a judgment for plaintiff, defendants appeal.

Affirmed.

Appeal from Circuit Court, Wayne County; Henry G. Nicol, judge.

Argued before the Entire Bench.

Ernest P. Lajoie, of Detroit, for appellants.

Ralph S. Moore, of Detroit, for appellee.

CHANDLER, Justice.

Appellants, Edwin J. and Carl T. Hess, co-partners doing business as the Hess Cartage Company, urge that the judgment secured by Sophia Gumienny as next friend of Anthony Gumienny, a minor, against the City of Detroit, Department of Street Railways, in which the said co-partners were joined as alleged joint tortfeasors, is conclusive of the question of liability and precludes any recovery against said Hess Cartage Company in this action brought by Anthony's father for his consequential damages suffered by reason of the injury to his son. It is their contention that the father of an injured child has but a derivative right of action, and of necessity can have no greater rights than the child himself; that the prior suit of the minor by his next friend judicially determined that the negligence of the City of Detroit, Department of Street Railways, was the sole cause of the injuries to plaintiff's son; that the son could look only to the City of Detroit, Department of Street Railways, for his damages, and that the father, who has no greater rights than the son from whom he derived his right of action, must look to the same source to recover his consequential damages.

In support of the judgment returned in his favor in the trial court, appellee relies principally upon the case of Laskowski v. People's Ice Co., 203 Mich. 186, 168 N.W. 940, 2 A.L.R. 586, and argues for the application of the doctrine that judgments and decrees are conclusive evidence of facts only as between parties and privies to the litigation. Since plaintiff, Peter Gumienny, was neither a party nor a privy to the action brought on behalf of his son, and since the issues involved herein are not the same as in the prior action, appellee contends that the argument of res judicata does not apply.

In the Laskowski Case, a married woman recovered a judgment for personal injuries. Thereupon, her husband brought an action to recover consequential damages of the same defendant. On the question of the negligence of the defendant and the contributory negligence of the wife, the court charged the jury that they ‘must find that the defendant Ice Company was guilty of negligence as charged, and that the plaintiff's wife, Anna Laskowski, was free from contributory negligence. The only questions, therefore, for your consideration, are whether or not the plaintiff has sustained damage, loss, and damage, as a proximate result of the injuries to his wife Anna Laskowski, sustained through the accident; and if you find that he has, then the only remaining question is for you to determine the amount of the damage.’ This instruction was held to be clearly wrong since the husband was not a party or a privy to the action brought by the wife in her own behalf. The same theory, namely, that causes of action accruing to the husband and wife by reason of a tortious wrong to the latter are separate and distinct and neither may be pleaded in bar of the other, is present in the parent and child relationship.

The general rule is well stated by Freeman, on Judgments (5th Ed.) Vol. 1, Sec. 481, as follows: ‘If an infant is wrongfully injured, two distinct causes of action accrue, one in favor of the parents for loss of services and expenses incurred and another to the infant for the other elements of damage from personal injuries including impaired earning capacity after reaching majority. In such case a judgment in action by one is not res judicata or a bar in action by the other. The parent is not bound by the judgment in the child's action merely because he acted as next friend, guardian ad litem or guardian, except where he has permitted the child to recover or litigate the right to damages which would otherwise belong to him, nor is such a judgment evidence in his behalf in his own action.'

The rule expressed above finds ample support in the adjudicated cases. In Guy v. Fisher & Burnett Lumber Co., 93 Tenn. 213, 23 S.W. 972, a father brought an action as next friend of his minor son to recover damages for personal injuries suffered while in defendant's employ. The father had been defeated in a prior action against the same defendant to recover consequential damages, and in affirming that verdict the appellate court adjudged that the boy had been working for an independent contractor. Likewise, in the subsequent suit by the father as next friend of his minor son, the defendant alleged that the boy was not in their employ, but was engaged by an independent contractor, and ‘In support of that defense, the defendant was permitted, over the objection of the plaintiff, to produce in evidence a copy of the judgment of this court in the former case. Upon no ground was that judgment competent or admissible as evidence in this case. It would have been competent and admissible as a matter of estoppel on a plea of res adjudicata, in an action between the same parties, and about the same subject-matter, but it was not so in this case.’ (Page 973.)

A question similar to the one in the instant case arose in Hooper v. Southern Ry. Co., 112 Ga. 96, 37 S.E. 165, where an action was brought by the father for the loss of his minor son's services and for medical expenses. The father, as next friend, had already recovered in an action brought on behalf of his son, and offered that record and judgment as conclusive of everything in plaintiff's suit except the value of his son's services. The court refused to permit this evidence and judgment was returned in favor of the defendant and the application of the doctrine of res judicata was denied upon the following reasoning (page 167): ‘The same jury might have consistently found liability of the railroad company for injuries to the boy who was burt, for the reason they might have concluded that the evidence tended to show he was in the exercise of all ordinary care and diligence in trying to cross the bridge. But when they came to consider the case of the father we cannot say that there was not evidence from which they might have reached a different conclusion, and found no liability of the defendant to him; it being insisted on the part of the defendant that he was precluded from recovering on account of his negligence in permitting his minor son to drive across a bridge which he claimed to be dangerous, when the father, who was present, had opportunity of doing the driving himself, with less danger of injury, on account of his experience and superior strength and skill’.

In McGreevey v. Boston Elevated Ry. Co., 232 Mass. 347, 122 N.E. 278, it...