Smith v. Gulf, M. & N. R. Co.
| Decision Date | 22 September 1930 |
| Docket Number | 28609 |
| Citation | 129 So. 599,158 Miss. 188 |
| Parties | SMITH v. GULF, M. & N. R. CO |
| Court | Mississippi Supreme Court |
Suggestion of Error Overruled, October 20, 1930.
APPEAL from circuit court of Chickasaw county, First district HON T. E. PEGRAM, Judge.
Action by W. H. Smith against the Gulf, Mobile & Northern Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.
Affirmed.
Paine & Paine, of Aberdeen, and J. H. Ford, of Houston, for appellant.
The parent does not waive his right of action by suing as next friend for the child's suffering and permanent impairment of earning capacity after majority.
46 C. J. 1301-1302, sections 114 and 115.
The parent may recover damages for the child's diminished capacity to earn money during his minority because of the injury, without deducting the cost of his maintenance; and in this connection the jury are entitled to consider the child's earning capacity in any employment for which he is fitted. The fact that there has been a previous recovery by the child in which the court erroneously permitted him to recover for a diminution of his earning capacity during minority will not prevent recovery by the parent for this element of damages.
The parent may recover the expenses incident to the care and cure of the child, for example, for medical or surgical attention, nursing and other expenses rendered necessary by the injury; hospital expenses incurred by the parent are recoverable without deduction of the value of the board and lodging which the parent would have required to furnish had the child been cared for at home.
46 C. J. 1311-1312, section 133.
In an action by a father for injuries to a minor child, he is entitled to recover, not only the value of his own services, but also the value of the services of his wife, the injured child's mother, in nursing the child.
It is competent to show condition of track near wreck.
See V. & M. R. R. Co. v. Putnam, 7 S.Ct. 1.
An instruction charging that the plaintiff must show by a preponderance of the testimony that the wreck of the passenger train on which party injured was riding was caused by negligence on the part of the defendant was erroneous in the face of our prima-facie negligence statute.
Section 1717 of Hemingway's 1927 Code, section 1985, Code 1906; New Orleans, etc., R. R. Co. v. Brooks, 85 Miss. 269, 38 So. 40; Easley v. A. G. S. Ry. Co. , 96 Miss. 396, 50 So. 491.
B. N. Knox, of New Albany, and Flowers, Brown & Hester, of Jackson, for appellee.
The right of the parents of a minor injured by the negligence of another for compensation for the minor's reduced earning capacity during his minority is waived, where the father as next friend of the minor, and for his benefit, sues for and obtains damages therefor from the person causing the injury.
Brookhaven Lbr. Co. v. Adams, 132 Miss. 689, 97 So. 484; Dick v. Grissom, Freeman's Chancery (Miss.) 428; Louisville H. & St. Ry. Co. v. Lyons, 155 Ky. 396, 159 S.W. 971.
Argued orally by Thos. Fite Paine, for appellant, and by J. T. Brown, for appellee.
Appellant brought this action against appellee in the circuit court of the First district of Chickasaw county, to recover of appellee the loss of the services of his daughter, Bettie Lou Smith, during about two years of her minority, and for hospital and doctors' bills, and other expenses incurred by him on her behalf during the same period, alleged to have been caused by an injury received by his daughter as the result of appellee's negligence. There was a trial, resulting in a verdict and judgment in appellee's behalf; from that judgment appellant prosecuted this appeal.
Appellant's daughter, Bettie Lou Smith, a minor about nineteen years of age, was a passenger on a south-bound passenger train of appellee's, between Woodland and Mathiston, in this state. The train was wrecked, and the daughter was seriously injured. Appellant, as next friend of his daughter, brought suit in the circuit court of the First district of Chickasaw county, to recover damages for her injuries. A trial of the cause was entered into, and progressed to some extent, when a compromise judgment was entered in favor of the daughter in the sum of ten thousand dollars. A voucher for ten thousand dollars was sent by the appellee to her attorneys in satisfaction of the judgment; and along with the voucher appellee sent a release to be signed by the appellant and his wife, reciting that the amount paid was in full compensation, not only of the injuries to the daughter, but of all injuries suffered by appellant and his wife. This release appellant and his wife refused to execute. Nevertheless, the ten thousand dollars was paid to the daughter, whose disability of minority had been removed to enable her to receive and receipt for it.
Besides the general issue, appellee pleaded specially the payment of this ten thousand dollars, alleging that it was paid in full settlement of all injuries suffered by either the daughter or the father and mother. Appellant demurred to the special plea, which demurrer the court overruled. Evidence pro and con was heard on the issue made by the special plea; at the conclusion the court ruled out the entire evidence offered to sustain the special plea, and directed the jury not to consider it in making up their verdict.
Appellant assigned and argued many errors alleged to have been committed by the court during the trial, part growing out of the issue of liability, and the balance out of the issue of damages.
Under the undisputed evidence in this case, there was only one issue on which the jury could have returned a verdict for appellee, and that is the issue of liability, on which the evidence was conflicting, and the jury would have been justified in finding either way. On the issues as to whether appellant's daughter was injured by the wreck, and whether appellant suffered damage by reason of her injury there was no real conflict in the evidence, which showed that appellant's daughter was seriously injured by the wreck of the train, and that by reason thereof appellant was injured in the loss of her services during her minority, and at least put to the expense of her hospital and doctors' bills. There were other elements of damage which appellant attempted to show that he suffered, about which there was more or less uncertainty in the evidence. But as to the hospital and doctors' bills, which appellant had to pay for his daughter, there was no uncertainty whatever, either as to their character or amount. So...
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