McGarr v. Nat'l & Providence Worsted Mills

• Decision Date: 13 October 1902
• Citation: 24 R.I. 447,53 A. 320
• Court: Rhode Island Supreme Court
• Parties: McGARR v. NATIONAL & PROVIDENCE WORSTED MILLS.

53 A. 320

24 R.I. 447

McGARR

v. NATIONAL & PROVIDENCE WORSTED MILLS.

Supreme Court of Rhode Island.

Oct. 13, 1902.

Action by Annie McGarr against the National & Providence Worsted Mills. After

verdict for plaintiff, defendant petitions for a new trial. Granted.

Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ.

J. W. Hogan and P. S. Knauer, for plaintiff.

Walter B. Vincent and Huddy & Easton, for defendant.

TILLINGHAST, J. This is an action of trespass on the case for negligence, and is brought to recover damages for the loss of service of the plaintiff's minor daughter, Sarah McGarr, and also to recover for the expenses incurred by the plaintiff for medicines, medical attendance, and nursing, occasioned by reason of personal injuries sustained by said Sarah while in the employ of the defendant corporation. Said Sarah McGarr, by her father and next friend, Owen McGarr, had previously brought suit against the defendant to recover damages for personal injuries growing out of the accident in question (see 22 R. I. 347, 47 Atl. 1092), and had obtained a substantial verdict therein; and thereafterwards the mother, Annie McGarr, brought this action to recover for the consequential damages suffered by herself on account of said injuries to her daughter, and upon trial thereof a verdict was rendered in her favor for the sum of $9,500. The case is now before us upon the defendant's petition for a new trial upon the grounds (1) that the verdict is against the law and the evidence; (2) that the presiding justice erred in admitting certain evidence against the objection of the defendant, and also erred in refusing to admit certain evidence offered by the defendant; (3) that the presiding justice also erred in his instructions to the jury; and (4) that the damages awarded by the jury were excessive and unjust. At the trial of the case all of the questions involved, including the question of the defendant's negligence, were considered as fully as if there had been no prior verdict and judgment in favor of the daughter, Sarah McGarr. The proof shows that she was employed by the defendant as a spinner, and at the time of the accident, January 6, 1899, was engaged in tending a spinning frame in No. 6 mill of the defendant company. The spinning frame was run by an overhead belt some ten feet from, and substantially parallel with, the floor. The claim of the plaintiff is that this belt, by reason of its improper and insufficient lacing, suddenly broke, and that one end of it struck her daughter upon the side of her head, inflicting severe Injuries, from which major hysteria developed, together with other physical ailments of a very serious and permanent nature. Owen McGarr, the father of Sarah and the husband of the plaintiff, died on November 5, 1900.

Defendant's counsel starts out with the broad contention that the action will not lie, on the ground that the plaintiff, as the mother of said Sarah, is not entitled to maintain it: First, because she was not bound to support her child, Sarah; and, second, because the right of action for loss of service, having become vested in the father during his lifetime, could not become devested and vest in the mother after his death. Having taken this position at the jury trial, the defendant objected to the introduction of any testimony as to damages. And as the trial court overruled this objection, subject to exception by the defendant, the first question which logically presents itself is whether the action will lie.

1. That at the common law the father is entitled to the benefit of his minor children's labor while they live with him and are supported by him, there can be no doubt. His right to their services, like his right to their custody, rests upon the parental duty of maintenance, and is said to furnish some compensation to him for his own services rendered to the child. Schouler, Dom. Rel. (5th Ed.) § 252; Brown v. Smith, 19 R. I. 319, 33 Atl. 466, 30 L. R. A. 680. The mother, on the other hand, not being thus bound for the maintenance of her minor children, has no implied right, at the common law, to their services and earnings. The common-law doctrine as thus briefly stated, however, has been greatly relaxed by modern decisions in this country, if not in England; and the strong tendency of the courts in this country, as well stated by Field, C. J., in Horgan v. Mills, 158 Mass. 402, 33 N. E. 581, 35 Am. St. Rep. 504, "is to give to a widow left with minor children, who keeps the family together and supports herself and them with the aid of their services, very much the same control over them and their earnings during their minority, and to impose on her, to the extent of her ability, much the same civil responsibility for their education and maintenance, as are given to and imposed on a father." The chief justice then stated the opinion of the court in that case to be as follows: "We are of opinion that when a minor child lives with its mother, who is a widow, and the child is supported by the mother, and works for her as one of the family, the mother is entitled to recover for the loss of services of the child, and for labor performed and expenses reasonably Incurred in the care and cure of the child, so far as they are the consequences of an injury to the child negligently caused by the defendant." This statement of the law is abundantly supported by the authorities cited in the opinion, and by numerous others which might be added. See 17 Am. & Eng. Enc. Law (1st Ed.) p. 387, and cases collected in notes 1 and 2; Drew v. Railroad Co., 26 N. Y. 49; McElmurray v. Turner, 86 Ga. 215, 12 S. E. 359; 2 Kent, Comm. 205, 206; Nightingale v. Withington, 15 Mass. 274, 8 Am. Dec. 101; Railroad Co. v. Cook, 63 Miss. 38; Commissioners v. Hamilton, 60 Md. 340, 45 Am. Rep. 739; Kennedy v. Railroad Co., 35 Hun, 186; Moritz v. Garnhart, 7 Watts, 302, 32 Am. Dec. 762; Furman v. Van Sise, 56 N. Y. 435, 15 Am. Rep. 441; Matthews v. Railway Co., 26 Mo. App. 75.

2. It being well settled, then, that a widow may maintain an action for loss of services of her minor child, the next question which arises is whether the plaintiff can maintain her action, the cause of which accrued prior to the death of her husband. The answer to this question, in so far as it relates to the plaintiff's right to recover for loss of service, etc., prior to the death of the father, depends primarily upon the relation which existed between the mother and daughter at the time of the accident as to the right of service; that is, whether the mother or the father of the girl at that time was legally entitled to her services. And as the father was presumably entitled thereto, it devolves apon the plaintiff to prove that he had in some way relinquished his right or conferred it upon her. While the right to the child's services is naturally in the father, he can doubtless surrender this right to another by contract or otherwise, in various ways, as (a) by binding the child as an apprentice (Ames v. Railroad Co., 117 Mass. 541, 19 Am. Rep. 426); (b) by allowing another person to so act that he stands in loco parentis (Whitaker v. Warren, 60 N. H. 26, 49 Am. Rep. 302). This principle is fully recognized in Morse v. AVelton, 6 Conn. 547, 16 Am. Dec. 73, where it was held that the right of a parent to the services of his minor children "is bottomed on his duty to maintain, protect, and educate them. * * * But this right and this duty may be transferred to another, and may be relinquished to a child." The law doubtless is, however, that the father cannot permanently transfer his rights and duties to another, except by deed. State v. Libbey, 44 N. H. 321, 82 Am. Dec. 223.

The testimony upon which the plaintiff relies to show that the services of Sarah belonged to her at the time of the accident is to the effect that the plaintiff is, and long has been, the real head of the family; that she owns the property, takes care of the family, and pays the bills; and that, by express direction from the father in his lifetime, she was entitled to, and did, receive all of the earnings of the daughter, Sarah. She employed the physician who has attended the daughter since the accident, and is personally responsible to him for his services. Dr. O'Keefe testifies that he rendered his services at the request of the mother; that the night he was called he saw the case would be prolonged, and he had a talk with the mother, and she told him she wanted him to attend her daughter, and would see him paid; and that his services have been charged to her. The testimony further shows that the father had no property, and no income except his current earnings. In view of this state of the proof, plaintiff's counsel contends that the wages of Sarah were the property of the mother, for the recovery of which she could have maintained an action. In other words, the contention is that the arrangement and understanding between the father and mother of Sarah as to her wages, taken in connection with the other facts aforesaid, amounted to a relinquishment by the father of his right to the daughter's services and earnings and an assignment thereof to the mother, and hence that the latter can recover for the loss thereof We think this is so. It is true, the evidence fails to show the making of any formal agreement between the plaintiff and her husband as to the child's services and earnings; but as it appears that there was an understanding between them to the effect that they belonged to the mother, and as it also appears that the mother managed the affairs of the family, owned the property, and contracted and paid the hills, we think this is sufficient to entitle her to maintain the action, not only for loss of services, etc., since the death of the father, but also prior thereto. If the case were one which simply showed the payment to the mother of the child's wages by direction of the father, we should not deem this sufficient to enable the...