H. & G. N. R. R. Co. v. Miller

• Decision Date: 01 January 1878
• Citation: 49 Tex. 322
• Court: Texas Supreme Court
• Parties: H. & G. N. R. R. COMPANY v. ELISHA P. MILLER.

49 Tex. 322

H. & G. N. R. R. COMPANY

v.ELISHA P. MILLER.

Supreme Court of Texas.

1878.

APPEAL from Harris. Tried below before the Hon. James Masterson.

The appellee sued as the father, and also as next friend of his minor son, Joseph E. Miller, for damages by the latter sustained as brakeman on defendant's train of cars. The petition set forth that the son was nineteen years old, and had been tenderly raised, and was incapable of entering into a legal contract; that, without the knowledge or consent of the father, the defendant induced the son to enter its service as brakeman, and by the defendant's negligence the son was thrown upon the track and his arm so crushed as to render amputation of it necessary, which was done at great expense, &c. Appellee seeks to recover, as father, for the expenses incurred in effecting a cure, and for the loss of the son's time from the accident to his majority; and, as next friend of the son, to recover damages which the latter sustained by the permanent injury and his lessened ability to earn a living.

To this petition defendant below excepted--

1st. Because of misjoinder of distinct causes of action and parties having no interest in common.

2d. Because it shows no cause of action in either the father or the son.

3d. Because the petition does not allege that the son was in the service of the father at the time of employment by appellant; nor does it allege that appellant knew the son was a minor when employed, or that he was then in the father's employ, or the relation existing between the father and son.

Appellee then filed an amendment, setting up that the son was injured in consequence of the unskillfulness and negligence of W. B. McKinney, as engineer of the train; that he was unfit for engineer, and that appellant was negligent in employing him in that capacity.

At the trial, the son having then filed a separate suit for his injuries, the appellee in this suit abandoned all claim on behalf of the son, and relied only on his own right to recover as the father; and the court overruling all exceptions to the petition, the parties went to trial on the general issue and other pleas. There were verdict and judgment for appellee for $2,000. Motion for new trial, which was overruled, and notice of appeal.

The assignments of error were--

1st. In overruling exceptions to petition.

2d. In the court's charge to the jury.

3d. In refusing charges asked by appellant.

4th. In overruling motion for new trial.

The first charge of the court was as follows: “1. Under the law, the father is entitled to the services of his minor children during their minority. Minors cannot, without their father's consent, make legal contracts; nor without such consent, either before or by acquiescence after knowledge of the father, engage in business for themselves. If you believe, from the evidence, that Joseph E. Miller was a minor, under twenty-one years of age; that, without the knowledge or consent of his father, he engaged himself to defendant, and whilst so engaged received the injury alleged, then if such injury was not caused by said Joseph's own negligence, plaintiff is entitled to recover for the loss of his son's services whilst under medical treatment, to his necessary expenses in perfecting a cure, including medicines and extras required in effecting a cure; also to all reasonable medical bills for which the father is liable, and to such damages as result and flow directly from the injury,--such as the diminished value of services up to the arrival at the age of majority of said minor.”

The third charge of the court was as follows, viz.: “3. When a person or corporation employs a minor, it devolves on such employer to obtain the consent of the father, when such minor is under the control of the father, and whilst said minor forms a part of the father's family. Whilst a minor, the father is liable for the support of his child, and is entitled to the earnings of his son; and where the son, through the negligence of the employer or its servants, receives an injury incapacitating him for a while from labor, and rendering him less serviceable up to his arriving to the age of twenty-one years, the employer thus engaging a minor without the knowledge or consent of the father is liable to the father in damages.”

The case, after being submitted in this court, was referred back for further examination and reference to authorities on questions submitted by the court. They will each be found set forth in the brief of appellant's counsel, prepared in reference to the questions.

Baker & Botts, for appellant.

I. To the first question asked by this court, “Is the first charge given by the court correct?” we answer, No. The error is in the measure of damages. The father's right of action does not accrue from the act producing the injury to the son, but from the loss of the son's services consequent upon the original act, and for all necessary expenses incurred in effecting a cure. Mr. Sedgwick, in his work on Damages, says (p. 546): “The action is based on the loss of service alone, and the question is,--What has the plaintiff lost in the services of the servant?” In such action, the rule of damages is said “to be now well established to be compensation for the loss of the minor's future services, and the expenses sustained, such as for surgical and medical attendance.” (Oakland R. R. Co. v. Fielding, 48 Penn., 320; Gilligan v. N. Y. & Harlem R. R. Co., 1 E. D. S., (N. Y.,) 453.)

But in this case, after allowing for loss of service while under treatment for his injury, and necessary expenses in effecting a cure, including medical attendance, the court adds, and “such damages as result and flow directly from the injury,--such as the diminished value of services to majority.” The last expression is an illustration, and not a qualification of the rule laid down by the court; and the rule pertains to cases concerning the absolute rights of individuals, and not to cases concerning the relative rights, and gives the jury a latitude of discretion not authorized in cases of the latter character, and to assess damages which the minor alone could sue for.

II. “Is an employer, who, without the knowledge or consent of the father, contracts with a minor for labor, and directs and controls him in the performance of it, responsible in damages for any injury done to the minor, which happened without negligence on his part, in performing the work at which he is employed?”

Not to the father. His rights are relative, and grow out of his natural and legal obligations to the son; and the law fixes the nature and measure of compensation which he may recover. His right of action is for loss of service and expenses as a consequence of the injury; but for the injury itself, or the act that produced it, the right of action is in the son. Lord Coke says: “If my servant is beat, the master shall not have an action for his battery, unless the battery is so great that by reason thereof he loses the service of his servant; but the servant himself, for every battery, shall have an action.” (Robert Murry's Case, 9 Coke, 113 a; Wood on Master and Serv., sec. 224.) The same rule applies in a suit by a parent. (Wood on Master and Serv., sec. 14.) In both cases, the gist of the action is loss of service; but in the case of a parent he may recover expenses of the cure, although the child was incapable of rendering service. (Wood on Master and Serv., sec. 225.)

III. “Do the apparent age and size of the minor have any influence on the question as above stated?”

We find no authority to this point. If the gist of the action was a wrongful employment, the apparent age and size of the minor might be important in determining the good faith of the employer in taking him into his service. But in a suit by the father for damages by him sustained as a consequence of an injury to the minor while in such employ, we cannot see that the latter's appearance can be material. We think the correctness of this position will be apparent from subsequent propositions.

IV. “Does the fact that the employer does not know that he is a minor have any influence on the above proposition?”

We think not, in this character of case. If this were an action for enticing the minor from the father's service, then the plaintiff must needs aver and prove that defendant knew he was a minor; and if the proof on this point were doubtful, or only circumstantial, then the apparent age and size of the minor might be important in determining the question of knowledge.

V. “Does the sort of work, whether ordinarily hazardous or not, have anything to do with this question; and if it has, is it a question of law or of fact as to what is hazardous work?”

If the minor were employed without the consent of the father, (the proof not showing that he had been emancipated,) and the latter sues for damages by him sustained as a consequence of that employment, and for expenses in healing the injuries sustained by the minor while serving in it, we do not see how his rights could be affected by the character of the work the minor was employed for. The loss of his services to the father for the same time is the same, however the minor may be employed; and if wrongfully injured, he is entitled only to the expense necessarily incurred in healing and curing the injury, whether it was sustained in an ordinarily or extra hazardous work. This question, it seems to us, could arise only in a case where there had been a valid and binding contract of hiring, as in Fort's case, 17 Wall., 553; and it is claimed that the minor was injured by having been put at a work more hazardous than he was suited to, and outside of that for which he was employed. But if the question should be thought properly to arise in a case of the character of this, we submit, that it is one of fact, to be submitted to the jury on the testimony, as was done in Fort's case. (See, also, Murphy's Case, 46 Tex., 356.)

VI. “Mu...