Richard v. Neault

• Decision Date: 27 December 1926
• Citation: 135 A. 524
• Parties: RICHARD v. NEAULT.
• Court: Maine Supreme Court

135 A. 524

RICHARD

v. NEAULT.

Supreme Judicial Court of Maine.

Dec. 27, 1926.

Exceptions and Motions from Supreme Judicial Court, Cumberland County at Law.

Action by Alderic Richard, Jr., as administrator of his deceased wife's estate, against Joseph E. Neault. Verdict for defendant, and plaintiff brings exceptions and moves for a new trial. Exceptions and motion overruled.

Argued before WILSON, C. J., and PHILBROOK, DEASY, STURGIS, and BASSETT, JJ.

Ellis L. Aldrich, of New York City, for plaintiff.

Ralph M. Ingalls and S. Arthur Paul, both of Portland, for defendant.

WILSON, C. J. An action under sections 9 and 10, c. 92, R. S., to recover for injuries resulting in the immediate death of the plaintiff's intestate, the injuries being received in an automobile collision alleged to have been due to the negligence of the defendant. The plaintiff's intestate was his wife, who is also survived by a minor child, for whose benefit this action is alleged to have been brought.

The defendant pleaded in defense the contributory negligence of the deceased. The jury returned a verdict for the defendant. The case is before this court on exceptions by the plaintiff to the admission and exclusion of certain evidence and on a general motion for a new trial.

The exceptions must be overruled. Evidence tending to show the intoxication of the driver of the car, in which plaintiff's intestate was riding as a passenger, if known to her before accepting the invitation to ride, was admissible as bearing on the question of her contributory negligence in the event of the jury finding that the driver's intoxication in any degree contributed to the accident. Its weight was for the jury.

The record of the driver's acquittal, however, in a criminal proceeding upon a charge involving his condition as to intoxication at the time of the collision was not admissible in a civil proceeding between third parties. Greenleaf, Ev. vol. 1, § 537.

Counsel for the plaintiff, however, also contends that the presiding justice at the trial below erred in his instruction to the jury, in that he submitted to them the question of fact as to whether the driver of the car in which the plaintiff's intestate was riding was to her knowledge intoxicated when she and her husband accepted the invitation to ride, which was tantamount to an instruction that there was evidence on which such a finding could rest, when in fact and in law the evidence warranted no such finding and the jury should have been instructed that there was no evidence to support such a finding; and that he further instructed the jury that, "If the mother knew that the driver was in such a condition that it was not safe for him to drive the car, it would have been negligence for her to intrust the lives of herself and her baby to him, that if she knew it, the defense of contributory negligence was made out"; but failed to instruct the jury that it would not. be contributory negligence unless the negligence of the driver also contributed to the accident.

No exceptions were taken to any portion of the charge, nor were any requests made for additional instructions by counsel at the trial covering these points. Counsel, however, invokes the doctrine that, inasmuch as this action is brought for the benefit of a minor, this court will not permit the interests of such minor to be prejudiced by errors of the trial court, even though counsel failed to properly safeguard and protect them in accordance with the rules of the court or the law of procedure.

While the courts, in all proceedings in which a minor is a party, by reason of his presumed disability, jealously guards his rights (McClellan v. McClellan, 65 Me. 508; Byrnes v. Butte Brewing Co., 44 Mont. 328, 119 P. 788, Ann. Cas. 1913B, 440, note), yet where substantial rights are not clearly affected, and he is represented by a guardian ad litem and by counsel, whose good faith is not questioned, the appellate courts will not reverse verdicts at law simply because, through some oversight of counsel or inadvertent omission of the trial court, the interests of a minor may have been adversely affected, unless the question is raised in the court below (Byrnes v. Butte Brewing Co., supra: Tripp v. Gifford, 155 Mass. 109, 29 N. E. 208, 31 Am. St. Rep. 530).

Litigation involving minors might be Interminably prolonged, If counsel in their behalf may sit silent at the trial below, and, in case the trial court does not secure an errorless trial, take advantage before the appellate court of every error of commission or omission and secure a reversal of a verdict in case it is against the minor.

However, we do not think there are any grounds for applying the rule invoked by counsel to a case brought under the statute here involved. While a minor is a beneficiary, the action, by the terms of the statute, is brought by the personal representative of deceased. A personal representative is in all cases qualified to prosecute and defend suits involving an estate...