Lessard v. Great Falls Woolen Co.

• Decision Date: 02 April 1929
• Citation: 145 A. 782
• Parties: LESSARD et ux. v. GREAT FALLS WOOLEN CO.
• Court: New Hampshire Supreme Court

145 A. 782

LESSARD et ux.

v. GREAT FALLS WOOLEN CO.

Supreme Court of New Hampshire. Strafford.

April 2, 1929.

Transferred from Superior Court, Strafford County; Oakes, Judge.

Action by Francis Lessard and wife against the Great Falls Woolen Company. Case transferred on exceptions of both parties. New trial.

Action by parents to recover for loss of services of the plaintiffs' minor son, Alphonse, and expenses incurred by reason of an injury to the minor while in the defendant's employ. The injury was received on May 15, 1922. Alphonse was then 17 years of age, and living with his parents in Somersworth in the county of Strafford. On September 18, Joseph Lessard, of Exeter, in the county of Rockingham, a half-brother of the minor, on his own petition, but with the consent of the parents and by election of the minor, was appointed guardian by the probate court of the latter county. On the same day the guardian brought suit for his ward against the defendant in the superior court for that county, and at the January term, 1923, recovered the damages suffered by his ward. In that action no claim was made for any damages sustained by his parents.

The present action was brought on May 28, 1923, to recover for the loss of the services of the son from the date of the injury to November 3, 1926, the date of the boy's majority, which he had attained before the trial, and for expenses incurred for cure. The plaintiffs excepted to a ruling that damages be limited to the time intervening between the date of the accident and the date of the appointment of said guardian, and to a directed verdict for the restricted period.

The plaintiffs offered to prove that the boy was incapacitated from earning by reason of the accident to the time he was 21; that he had always had his residence with his parents, who had never consented to any change thereof; that he had no property in Rockingham county; that the father did not relinquish any control over the minor, or knowingly or voluntarily give up any right to his custody, education, or control; that, on the other hand, the father did in fact control and support the boy at his own home in Somersworth during all the period from the time of the injury until the boy reached 21 years of age, except for a period of about 10 days, when the boy stayed with his said brother at Exeter; that the boy was all the time under the control of his parents and never emancipated; and that the father paid the boy's hospital bills and for his medical attendance. These offers of proof were denied, and the plaintiffs excepted.

On March 11, 1924, Joseph's resignation as guardian was accepted by the probate court of Rockingham county, and on April 1, 1924, the mother, on the petition of herself and the minor, was appointed guardian in Strafford county. The plaintiffs excepted to the denial of their motion to make the mother, as guardian, a party, while the defendant excepted to the denial of its motion to strike out the name of the mother in her individual capacity as a party plaintiff.

William H. Sleeper, of Exeter, for plaintiffs.

Hughes & Burns, of Dover, Lucier & Lucier, of Nashua, and Stanley M. Burns, of Dover, for defendant.

SNOW, J. It is conceded that the injury to the minor was due to the defendant's negligence, and that independent rights of action accrued, one in the minor for the injury, and the other in the father for the loss of services. The principal issues raised by the exceptions have to do only with (1) the period for which recovery for loss of services may be had; and (2) the proper parties plaintiff.

1. The court ruled that there could be no recovery after the date of the appointment of the brother as guardian, on the ground that such appointment, as a matter of law, terminated parental control and, per consequence, the parents' right to the child's service. This was error. At common law the father was entitled to the services of his minor child during minority (Gale v. Parrot, 1 N. H. 28, 29; Campbell v. Cooper, 34 N. H. 49, 62), and could, therefore, recover of a third person whose wrongful conduct deprived him thereof. In this country it is generally held that the right to such services grows out of, and is correlative to, the parental obligation to maintain and train his offspring. Id. 62, 63. It accrues to the father by way of compensation for "the support, nurture, care, protection, and education actually afforded and furnished" the child "during minority." Hammond v. Corbett, 50 N. H. 501, 505, 508, 9 Am. Rep. 288; Campbell v. Cooper, supra, 34 N. H. 64; Chaloux v. International Paper Co., 75 N. H. 281, 285, 73 A. 301; Jenness v. Emerson, 15 N. H. 486, 489; Hillsborough v. Deering, 4 N. H. 86, 95. Such right can be lost only by emancipation. Emancipation may be accomplished by agreement, express or implied. It may arise from conduct of the parent inconsistent with his claim to the further obedience or service of the child, or it may occur by operation of law.

The defendant's contention is that the brother's guardianship worked an emancipation by law. In support of this claim it cites P. L. c. 290, § 6, which in terms gives to a guardian the "full custody and control of said ward and his estate and earnings." The provisions of this section are applicable only to guardians appointed on petition of the public authorities. Such petition must be supported by proof that "the parents * * * are unfit to have the custody and control of said minor and of his estate and earnings, or that his parents are living apart and the circumstances are such that the interests of such minor require that a guardian be appointed." It is expressly provided that such appointment shall not relieve the parents from their obligations of support. Section 12. The provisions dealing with this special guardianship, however, have no bearing upon the question under consideration. The guardianship here was not under section 6, but under section 1, which provides for the appointment of "a guardian to any minor whenever there is occasion." The exigencies which may call for such guardianship of a minor are numerous, and such an appointment does not necessarily carry any implication of the unfitness of the parents to have the custody of the person of their children or to perform their natural obligations to them.

Whether there was an "occasion," within the meaning of the statute, for the appointment of the guardian in Rockingham county, and, if not, whether the legality of such appointment may be attacked collaterally for excess of jurisdiction, are questions which need not be answered in the determination of the issues here, and the same have not been considered.

P. L. c. 290, defines the powers and duties of a general guardian. Section 18: "Every guardian shall have the custody and tuition of the minor, and the care and management of his estate, and shall continue in office until the minor arrives at the age of...