Henry v. The Missouri

• Decision Date: 08 July 1916
• Docket Number: 20,256
• Citation: 98 Kan. 567,158 P. 857
• Court: Kansas Supreme Court
• Parties: JOSEPH HENRY, Appellee, v. THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant

158 P. 857

98 Kan. 567

JOSEPH HENRY, Appellee, v. THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant

No. 20,256

Supreme Court of Kansas

July 8, 1916

Decided July, 1916.

Appeal from Crawford district court; ANDREW J. CURRAN, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. JUDGMENT--Binding Effect--Res Judicata. A party is bound by and may plead the conclusiveness of a former judgment only in the same capacity in which he was a party to it.

2. SAME--In Favor of Minor--Not Binding on Same Defendant in Action by Father. A judgment in favor of a minor in an action brought in his behalf by his father as guardian or next friend, to recover for personal injuries resulting from the negligence of his employer, is not conclusive or binding against the defendant in another action brought by the father in his own right to recover for loss of the son's services.

3. MASTER AND SERVANT--Injury to Minor Servant--Loss of Services--Action Maintainable by Father--Mining Statute. A father may maintain an action, under the provisions of section 4992 of the General Statutes of 1909, to recover for the loss of services resulting from injuries received by his minor son by reason of the failure of defendant to comply with the statute which provides for the safety of persons employed in coal mines (Gen. Stat. 1909, § 4987).

4. APPEAL AND ERROR--Newly Discovered Evidence--New Trial. On the facts stated in the opinion it is held that it was error not to grant a new trial on the ground of newly discovered evidence.

W. W. Brown, James W. Reid, both of Parsons, and D. H. Woolley, of Girard, for the appellant.

C. A. McNeill, of Columbus, and C. S. Denison, of Pittsburg, for the appellee.

OPINION

PORTER, J.:

The action in the district court was to recover for the loss of services and earnings of plaintiff's son, a minor, eighteen years of age, who was injured while in the employ of the defendant, and also for doctor's bills, which the plaintiff alleged he was obliged to pay on account of the injuries to his son. There was a judgment in plaintiff's favor, from which defendant appeals.

In a former action plaintiff's son, Victor Henry, recovered judgment against the defendant for personal injuries resulting from the same accident. (Henry v. Railway Co., 92 Kan. 1017, 142 P. 972.) In the petition in the present case it was alleged that the plaintiff's son, while employed in a coal mine operated by the defendant, was injured by the fall of a rock from the roof of the room in which he was at work, and that his injuries were caused solely by the willful failure of the defendant to provide him with sufficient prop timber of suitable length and size, in direct violation of the statute. (Gen. Stat. 1909, § 4680.)

At the trial plaintiff offered no evidence to show that his son had been in the employ of defendant or to prove any of the circumstances of the alleged injury, or to show that defendant had omitted to perform any statutory duty imposed upon it; but merely introduced the pleadings, verdict, findings of fact and the judgment rendered in the former action brought in behalf of the son. The only evidence, aside from this, was offered to show the value of the minor's services, and the time he was incapacitated for work on account of his injuries, and to prove that plaintiff had paid certain bills for medical services. The defendant's demurrer to the evidence was overruled.

1. The first question for determination is whether the former judgment in favor of the son adjudicated the fact that he was in the employ of the defendant at the time of his injury and was injured as a result of the failure of the defendant to comply with the mining statute. The plaintiff insists that the former judgment is res judicata as to these matters because it was brought for the son by the father, as next friend, and attention is called to section 31 of the code, which provides that the guardian, or next friend, shall be liable for the costs of the action. It is argued that as a guardian or next friend may become a judgment debtor of the defendant, liable under execution for the collection of a judgment for costs, the statute regards him as a necessary party, and therefore all issues determined therein are res judicata as between the guardian or next friend and the defendant. If this is true it would seem to follow that if a father and son were both injured by the same act of negligence, and two actions were brought, one by the father to recover for his own injuries, and one for the son by his father as guardian or next friend to recover for the son's personal injuries, a judgment in favor of defendant on the first case tried would be a bar to the other action. There must be not only identity in subject-matter, cause of action and parties, but also in the quality of the person for or against whom the claim is made. All others are strangers to the litigation. The plaintiff here is not suing in the same capacity as was the plaintiff in the former action. There the son was the real plaintiff, the father a mere nominal plaintiff. Persons who are mere nominal and not real parties are not bound. Thus, what is known as a "use plaintiff," that is, where suit is prosecuted by one person for the use of another, it is the latter alone who is bound by the judgment. (23 Cyc. 1242.)

In case of injury to a minor two causes of action arise: one in favor of the infant for his personal injuries, and one in favor of the parent for loss of services. A party is bound by a judgment only in the same capacity in which he was a party to it. Thus in 23 Cyc. 1243, it is said:

"Hence a party is not bound by a former judgment where he sued or defended in the one action in his individual capacity and in the other in the character of a guardian or next friend, or as an executor or administrator, as a trustee for others . unless in any of these instances he was made a party to the first action in both capacities, or the scope of the litigation was such that all his rights or interests,...