Whitaker v. Warren

Stanley, J. The court were authorized to allow the amendment, to prevent injustice. Whether or not it was necessary for this purpose depended upon facts, the .existence of which must be established at the trial term, where the question of amendment is to be determined. The defendant claims that the plaintiff cannot recover, because .neither the relation of parent and child, nor that of master and servant, existed between the plaintiff and the deceased; but the facts stated are evidence tending to show that the plaintiff stood in loco parentis to the child, and while this relation existed, the plaintiff was entitled to all the rights of a parent. Freto v. Brown, 4 Mass. 675; Mulhern v. McDavitt, 16 Gray 404; Williams v. Hutchinson, 3 N. Y. 312; Cooley Torts 235. This being the case, the plaintiff is entitled to recover for nursing and care of the child after the injury and while it lived, and for medicines and medical attendance. For the personal injury to the child he cannot recover (Hall v. Hollander, 4 B. & C. 660; Dennis v. Clark, 2 Cush. 347, 351; Bouv. Inst., s. 2289), nor for loss of service, without evidence to that effect. Woodward v. Washburn, 3 Denio 369, 371; Stephenson v. Hall, 14 Barb. 222; Hall v. Hollander, supra; Dennis v. Clark, supra; Franklin v. South Eastern Railway, 3 H. & N. 211; Cooley Torts 226; Wood Mas. & S. 441, 442, 443. The right of the parent to recover for loss of services caused by injuries inflicted by third persons, is founded upon the fact that he is entitled to the earnings of the child during its infancy (Jenness v. Emerson, 15 N. H. 486; Schou. Dom. Rel. 344, 631); and it stands on the same ground as the right of a master to the labor and .services of his apprentices. Schou. Dom. Rel., supra ; 2 Kent Com. 192 et seq. The plaintiff standing to the child in loco parentis, we cannot say that he is not entitled to recover for the loss of his services. His right to recover is not absolute; — it depends upon whether there has in truth been a loss of services; whether the child was capable of rendering services; and whether the plaintiff has been deprived of the services by the defendant’s wrongful act. If the jury should so find, the plaintiff is entitled to damages from the time of the injury until the child’s death, — such damages as will be a full compensation for the loss sustained during that period. Ruth. Inst., B. 1, c. 22, s. 1; Greenl. Evid., s. 253; Field Dam. 21; Wyatt v. Williams, 43 N. H. 107. Whether he can recover for loss of service after the death and. during its infancy, is a question on which we-express no opinion. The point that the action is penal, and is therefore barred by the statute (G. L., c. 266, s. 10), cannot be sustained. The statute cited does not apply to cases of unliquidated damages, like the pres *27 ent case, even though the statute on which it is founded may be in some respects penal. It applies to cases where the amount of the penalty is fixed in the statute. Case discharged. Allen, J., did not sit: the others concurred.