Hearon v. Himmelberger-Hrrison Lumber Company, a Corp.

• Decision Date: 03 May 1921
• Citation: 230 S.W. 661,206 Mo.App. 463
• Parties: CLYDE HEARON, a Minor, by LON HEARON, His Next Friend, Respondent, v. HIMMELBERGER-HRRISON LUMBER COMPANY, a Corporation, Appellant
• Court: Missouri Court of Appeals

230 S.W. 661

206 Mo.App. 463

CLYDE HEARON, a Minor, by LON HEARON, His Next Friend, Respondent, v. HIMMELBERGER-HRRISON LUMBER COMPANY, a Corporation, Appellant

Court of Appeals of Missouri, Springfield

May 3, 1921

Appeal from Circuit Court of New Madrid County.--Hon. Sterling H McCarty, Judge.

REVERSED.

Judgment reversed.

Oliver & Oliver for appellant.

(1) This suit cannot be maintained by a next friend. Clyde Hearon was twenty-two years old (less only seven days) when the amended petition on which this cause was tried was filed. (a) It is fundamental that no person can maintain an action in respect to which he has no right or interest. Baxter v Baxter, 43 New Jersey, Equity 82. (b) The question here is not the same question raised in those cases which hold that where appointment of a next friend is alleged in the petition plaintiff is not required to prove the appointment unless defendant raises the question by special demurrer or plea in abatement. We are not questioning the fact of the appointment. But plaintiff's proof showed too much--that he was not a minor at all, but an adult practically twenty-two years old when the petition on which the case was tried was filed. (c) Next friends are appointed for infants, not adults. Sec. 1165, R. S. 1919. (d) Suits must be maintained in the name of the real party in interest. Section 1155, R. S. 1919. (e) "The question as to who may maintain an action is a matter of law, and not subject to be controlled by the private conventions of the parties." 1 Corpus Juris, 982; Markey v. Coal Co., 178 F. 881. (f) Clyde Hearon had the right to come in and sue as an adult, but he has not done so--has not availed himself of that right. Robinson v. Hood, 67 Mo. 660. (g) The defendant assailed the right of the next friend to maintain this suit at every possible opportunity. 1st. By demurrer. 2d. By answer 3d. By objection at beginning of trial before the introduction of any testimony, specifically calling attention of the court and plaintiff's counsel to the fact that there was a defect of party plaintiff. 4th. By demurrer at the close of plaintiff's case. Until this time there was nothing of record showing that Clyde Hearon was then an adult twenty-two years old. 5th. By demurrer at the close of the whole case. 6th. By motion for new trial. Paragraph seven of motion for new trial specifically called attention to the court's error in permitting Lon Hearon to maintain this suit as next friend, Clyde Hearon being of age. 7th. By motion in arrest. (h) In support of appellant's position we quote from other cases as follows: "When the action was commenced, W. C. Ricord, to whom alone the cause of action stated in the complaint belonged, was a minor. This being so, the suit was properly brought in the name of E. E. Ricord, his mother and guardian. At the time of the trial he had attained his majority, and, upon his motion, he was joined with his mother as a party plaintiff. This, we think, was error. It would have been proper to substitute him as the sole plaintiff in her place, but since they had no joint interest in the cause of action, they could not be united as plaintiffs." E. E. Ricord, Guardian of W. C. Ricord, a Minor, v. C. P. R. R. Co., 15 Nev. 167, 175. "It is said that we should presume that the infant had arrived at majority before the entry of judgment against him. We think not. The prochein ami's name is still continued in the proceedings. Had the infant become of age the fact should have been entered upon the record at the happening of the event, and the cause afterwards been conducted by the plaintiff or his attorney without the use of the next friend. The judgment is reversed with costs." Holmes, by next friend, v. Adkins, 2 Ind. 398, 399. "When a minor by next friend is one of the complainants, and pending the action the minor becomes of age, the name of the next friend may be stricken by amendment, and the cause proceed." Lasseter v. Simpson, 78 Ga. 61, 65. "The authority of a solicitor, or guardian ad litem, or next friend of an infant defendant to represent the infant, in the conduct of the cause, expires with the minority of the infant." Lang v. Belloff, 53 N.J.Eq. 298, quotation from syllabus. "Appellee, Emma Cunningham being an infant under the age of twenty-one years when the action was brought, had the right to sue by her next friend, and the defendant having filed his answer and gone to trial without excepting, it is now too late to object that the action was prosecuted by her next friend after she arrived at full age, or that he failed to show his right to sue as required by Sec. 37, Civil Code." Bramel v. Cunningham, by next friend, 3 Ky. L. Rep. 512. "As the plaintiff had become of age since the commencement of the action the proper method of procedure was to strike from the complaint the allegation as to his non-age and the appointment of a guardian ad litem and continue the cause in his own name." Seigler v. Southern Ry. Co., 67 A. 296. (2) The plaintiff must recover, if at all, upon proof of the specific acts of negligence alleged in his petition. Henneker v. Beetz, 217 S.W. 533; Waldhier v. Railroad, 71 Mo. 514; McCarty v. Rood Hotel Co., 144 Mo. 397, 402; McManamee v. Railroad, 135 Mo. 440, 447. (3) An employee does not assume risks caused by his employer's negligence, but he does "assume the risks which are liable to happen on account of the nature of the employment when the employer has used reasonable care to avoid that result." Powers v. Loose-Wiles Co., 195 Mo.App. 430; Whelan v. Zinc & Chemical Co., 188 Mo.App. 603-4; Oxford v. Dudley, 217 S.W. 607, 608; Kaemmerer v. St. Louis Axle Co., 196 S.W. 439, 442-3; Roberts v. Mo. & Kan. Telephone Co., 166 Mo. 370, 378.

S. J. Smalley and H. C. Riley, Jr. for respondent.

(1) Defendant's duty to warn plaintiff, an inexperienced employee, of the danger concededly known to it was an absolute duty. Seals v. Whiting, 130 Mo.App. 420; Saller v. Shoe Co., 130 Mo.App. 712; Jackson v. Butler, 249 Mo. 373; Anderson v. Terminal Ry. Co., 161 Mo. 424; Thompson v. Railroad, 93 Mo.App. 548; Reisert v. Williams, 51 Mo.App. 13; Bromley v. Smith, 12 Mo.App. 594; Czernick v. Ehrlict, 212 Mo. 395; Spencer v. Brunner, 126 Mo.App. 104; Bokamp v. Railroad, 123 Mo.App. 286; Dowling v. Allen, 102 Mo. 213. (2) Plaintiff's earning capacity has been greatly and permanently impaired. He lost off his right hand the forefinger at the knuckle joint, the middle finger between the knuckle joint and hand, and the whole of the third or ring finger. He now has very little gripping and holding power left in his right hand, only the thumb and little finger remain. He is a young man now twenty-two years old and has no other way to earn his living than by manual labor. He has been maimed for life, the inconvenience aside from labor, the embarrassment and humiliation which occur every day as well as the pain and suffering he has endured count for much. The sum of five thousand dollars is not excessive. Parker v. Railroad, 164 Mo.App. 31; Oborn v. Nelson, 141 Mo.App. 428; Saller v. Shoe Co., 130 Mo.App. 712; Montgomery v. Shoe Co., 217 S.W. 867.

FARRINGTON, J. Cox, P. J., and Bradley, J., concur.

OPINION

FARRINGTON, J.

The plaintiff recovered a judgment against defendant in a suit by his father, Lon Hearon, his next friend, on a charge of negligence on the defendant's part, alleging that he was a minor and inexperienced in the work at which defendant set him to do; that he was placed by defendant at the work of operating a dangerous machine in its mill which was known as a cut-off saw, and that the defendant knew that in operating the saw it had a tendency to jump or rebound, which fact was not known to the plaintiff, and that by reason of his being inexperienced and without warning of said danger three of his fingers were severed in the operation of the machine.

This the second appeal in the case, the first appeal will be found reported in Hearon v. Himmelberger-Harrison Lbr. Co., 224 S.W. 67, to which we here refer for the facts concerning a description of the jump saw machine being used by the plaintiff at the time of his injury.

When the case was here on the first appeal, the judgment was reversed because of a failure to show any negligence on defendant's part in the charge that certain springs had become defective and that the machine was out of repair. The cause was remanded by a majority of the court on the thory that plaintiff might be able to make a case against defendant for being put to work at a dangerous machine when inexperienced and without having been warned of the danger and the manner of avoiding injury by reason of such danger; and when the case was retried it was submitted to the jury solely on this theory, there being no submission concerning any defect in the machine.

Appellant again contends that the trial court should have sustained a demurrer to the evidence because of a failure to make out a case on this charge of negligence, and in this contention we are convinced the appellant is correct. It is the well settled law of this State that in an action by a minor for damages sustained by...