Smith v. Hewett

• Decision Date: 21 May 1952
• Docket Number: Nos. 602,606,s. 602
• Citation: 70 S.E.2d 825,235 N.C. 615,32 A.L.R.2d 1055
• Parties: , 32 A.L.R.2d 1055 SMITH, v. HEWETT et al. O'BRIEN v. HEWETT.
• Court: North Carolina Supreme Court

Page 825

70 S.E.2d 825

235 N.C. 615, 32 A.L.R.2d 1055

SMITH, v. HEWETT et al.

O'BRIEN v. HEWETT.

Nos. 602, 606

Supreme Court of North Carolina.

May 21, 1952

Moore & Corbett, Burgaw, Isaac C. Wright, Wilmington, Frink & Herring, Southport, for plaintiff, appellant.

James & James, Wilmington, for defendants, appellees.

DEVIN, Chief Justice.

It was chiefly urged for error by the defendants that under the court's instruction on the issue of damages (the fourth issue) the jury was permitted to consider as elements of damage in the case of Graham Smith, an unemancipated minor, hospital, medical and nursing expenses incurred, and also loss of earnings and diminished earning capacity during his minority.

The general rule is that an unemancipated minor cannot recover as an element of damage in an action for personal injury for loss of earnings or diminished earning capacity during his minority, but that the father is primarily entitled to his services and earnings as long as the minor is legally in his custody or under his control. Shipp v. United Stage Lines, 192 N.C. 475, 479, 135 S.E. 339; Toler v. Savage, 226 N.C. 208, 37 S.E.2d 485. The father is under the legal duty to support his child during minority, and he has the right of action to recover for loss of earnings and for expenses incurred for medical care in treating an injury to his child caused by the wrongful act of another. He would have right to maintain an action to recover the amounts he had paid thereon, and also for those for which he is legally liable. Williams v. Charles Stores Co., Inc., 209 N.C. 591, 601-602, 184 S.E. 496; White v. Holding et al., Commissioners of Johnston County, 217 N.C. 329, 7 S.E.2d 825.

Conceding these principles of law, the plaintiff contends they are not applicable here under the facts disclosed by the record.

The plaintiff Graham Smith at the time of the injury was 17 years of age. His parents had been divorced several years before, but no order was made as to his custody. His mother testified, 'We were both to have him together.' His father lived in Brunswick County and his mother in Pender, but he lived part of the time with his grandmother in Brunswick and part of the time with his mother. After his injury both father and mother took him to a hospital in Wilmington, and later to a hospital in Charlotte. Several physicians treated him. All of the bills are unpaid except $50 paid by the father. The bills were made out in the name of W. C. Smith, the father. No question was presented as to liens on the recovery in favor of those rendering treatment as provided by G.S. § 44-49.

Under authority of Pascal v. Burke Transit Co., 229 N.C. 435, 441, 50 S.E.2d 534, the mother, who appeared in the action and conducted it as next friend, would be estopped to maintain claim for loss of services or for medical expenses incurred. But this rule does not apply to the father who instituted an independent action to recover for loss of services of his son and for medical expenses incurred in his treatment for which the father was primarily chargeable. He is not estopped, and, notwithstanding the divorce, is in law liable for medical and hospital expenses incurred in the...