Hammer v. Caine

• Decision Date: 25 November 1907
• Citation: 92 P. 441,47 Wash. 672
• Parties: HAMMER v. CAINE.
• Court: Washington Supreme Court

92 P. 441

47 Wash. 672

HAMMER v. CAINE.

Supreme Court of Washington

November 25, 1907

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Personal injury action by Adolph Hammer, by Amelia Anna Hammer, his guardian ad litem, against Elmer E. Caine. From a judgment for plaintiff, defendant appeals. Affirmed.

Chas F. Munday, Walter S. Fulton, and James A. Kerr, for appellant.

Albert D. Martin and Blaine, Tucker & Hyland, for respondent.

ROOT J.

Respondent a minor, prosecuted this action by his mother, as guardian ad litem, to recover damages for personal injuries received through the negligent operation of an automobile owned by appellant, and from personal conduct of appellant toward him at the time of the collision. From a judgment for $1,800 in respondent's favor, this appeal is taken.

The claim for damages was set forth in the complaint in these words: 'That, by reason of the facts aforesaid, the said Adolph Hammer has been made to suffer great bodily pain and mental anguish, and has suffered great humiliation, chagrin, and insult on account of the acts aforesaid, and has been on account thereof made sick, lame and sore, and has been, and now is, confined to his bed, and will be indefinitely, and has been and is, on account thereof, permancently injured and will never be able to follow the avocation heretofore pursued by him, and on account thereof has been required to employ a physician and surgeon in an effort to undertake to cure the injuries so sustained as aforesaid and to relieve the pain and suffering on account of said injuries, and the said plaintiff has been damaged thereby in sum of twelve thousand dollars ($12,000).' Appellant urges that this does not contain any claim for loss of time or earnings during respondent's minority. He requested the trial court to charge the jury that they could allow nothing for such loss. The court refused, and instructed the jury that they might award such sum as would compensate him for any loss of time or earning capacity. Appellant insists that this is error, as respondent's mother was entitled to his time and earnings during his minority, and that she had not waived her right thereto. Respondent contends that the prosecution of the action by the mother as guardian ad litem estops her from hereafter making any claim against appellant for these items. We think, under former holdings of this court, that this contention must be upheld. The rule announced in Daly v Everett Pulp & Paper Co., 31 Wash. 252, 71 P. 1014, as interpreted and...