Texas & P. Ry. Co. v. Morin

• Decision Date: 11 May 1886
• Citation: 18 S.W. 503
• Parties: TEXAS & P. RY. CO. v. MORIN.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

18 S.W. 503

TEXAS & P. RY. CO. v. MORIN.¹

Supreme Court of Texas.

May 11, 1886.

Appeal from district court, Tarrant county; A. J. HOOD, Judge.

Action by Charles Morin, by his next friend, Damuse Morin, against the Texas & Pacific Railway Company for personal injuries caused by plaintiff's being run over by one of defendant's trains. Judgment for plaintiff for $20,000. Defendant appeals. Reversed.

Davis, Beall & Rogers, for appellant. Furman, Stedman & Capps and Templeton, Wynne & Carter, for appellee.

STAYTON, J.

This action was brought by the appellee, a minor, through a next friend, to recover damages claimed to be the result of injuries to his person, received through the negligence of employes of defendant in the management of a train on the appellant's railway. The child at the time of the injury was about 30 months of age, and the trial resulted in a judgment in its favor for $20,000. There are but two matters assigned as error which it will be necessary to consider: (1) It is assigned as error that the court erred in overruling the motion for a new trial, based on the ground that the verdict and judgment were excessive. (2) That the court erred in instructing the jury that in estimating damages they might take into consideration any reduction of the power and capacity of the appellee to earn money. The charge given was as follows: "In the event you find damages for the plaintiff, in estimating the same you will take into consideration the proof, if any there is, showing the physical condition of the plaintiff at and since the alleged injuries, the probable effect of the injuries in the future upon his health and upon the use of his limbs, and, generally, any reduction of his power and capacity to earn money, and to pursue the course of life he might but for the injuries; but damages in this cause, if any, can in no event extend beyond a fair and reasonable compensation for the injuries, and you cannot, under the pleadings and evidence, award exemplary damages, — that is, damages by way of punishment." This charge was erroneous, in that it permitted the jury to consider, in estimating damages, the diminished capacity of the appellee to earn money during the time intervening between the injury and his arrival at majority. The services of the appellee during his minority belonged to his parent, who, as next friend, represents him in this case, and a diminution in his capacity to earn money during that period gave cause of action to the parent, but not to the minor, unless it was shown that the child had been emancipated by the parent. Railway Co. v. Miller, 51 Tex. 275; Sawyer v. Sauer, 10 Kan. 519.

It is urged, however, that the prosecution of this action by the father, as next friend of the appellee, should be held to be a relinquishment by the parent of all claim which he might otherwise assert in his own behalf, on account of the diminished capacity of the appellee to labor during his minority. There is nothing in the pleadings to indicate any such intention on the part of the parent; while, on the contrary, the motion for new trial shows that the next friend, as parent of the appellee, on account of the damages done to him by the injury to the appellee, had recovered a judgment for $7,950. The charge of the court in the cause in which that judgment was recovered, informed the jury that, in connection with other grounds for damages, the parent was entitled to "just and proper...