Bernard v. Merrill

Haskell, J. This is an action by a father for loss of service of his child, an infant, from an injury suffered by the child in the employ of defendant occasioned by his negligence. [361] The defendant pleaded in bar of the action a judgment in his favor in a suit by the child for the same injury, which was prosecuted by the father as next friend. The bar was overruled below and the defendant has exception. It is contended that the prosecution of the child’s suit by the father comes within the rule given in Lander v. Arno, 65 Maine, 29, “that a person cannot .be bound by a judgment when he is not a party thereto, unless he had a right to appear and take part in the trial, and control or help control the proceeding and appeal from the verdict or decree obtained therein,” or, as said by Bigelow, 99, “ assumed such right.” The father is the natural guardian of his infant children. It is for him to consider in what way they should be maintained and educated, and to judge what is for their benefit both as regards their persons and estates. He is, therefore, the proper person to conduct litigation in their behalf, and to control the same as next friend, unless his interests be hostile or he be guilty of some default or neglect. Woolf v. Pemberton, L. R. 6 Ch. Div. 19; Rue v. Meirs, 43 N. J. Eq. 377. The next friend, although not pliable for costs in this state, Leavitt v. Bangor, 41 Maine, 458; Soule v. Winslow, 64 Maine, 518; Sanford v. Phillips, 68 Maine, 431, may control the prosecution of the suit. Even should the infant employ counsel, who procures the suit dismissed, the entry would be void, because the infant could not appear by attorney as the employment would be null. Wainwright v. Wilkinson, 62 Md. 146. The doctrine of these authorities gives a father, except for cause, the right as next friend to control the litigation of his infant children. No matter whether he does or no, he has the right to. Does this right so far make him a party to the suit as to personally bind him by the result ? This right, while a personal one, is to be exercised for the child. The suit is the child’s suit. Damages recovered belong to the child. It is doubtful if the father, who prosecutes as next friend can discharge the judgment, as it is said his authority is only commensurate with the writ. Miles v. Boyden, 3 Pick, 219; Linton v. Walker, 8 Fla. 144; Perry v. Carmichael, [362] 95 Ill. 519; Clark v. Smith, 13 S. Car. 585; Jackson v. Combs, 7 Cow. 36; Rotheram v. Fanshaw, 3 Atk. 628; Tripp v. Gifford, 155 Mass. 108; Johnson v. Waterhouse, 152 Mass. 585. He, in law, is a different person individually than when acting for the child and in its stead, although his right to so act flows from the parental relation. He cannot individually have the fruit of the litigation, although indirectly he may be benefited thereby. The' authorities sustain this view. In Marshall v. Rough, 2 Bibb, 628, a judgment against a man individually concerning the title to land was held no bar to a subsequent suit for the same land by infants prosecuted by him as guardian and next friend. In Leavitt v. Bangor, supra, it is held that the next friend, who prosecutes the suit, was not a party so as to exclude his wife as a competent witness for the plaintiff. The rule is very neatly stated by Quain, J. in Leggott v. Grt. Northern Railway Co., 1 Q. B. Div. 606: “It must be observed that a verdict against a man suing in one capacity will not estop him when he sues in another distinct capacity, and, in fact, is a different person in law.” There, an administratrix sued under Lord Campbell’s Act and recovered 500 -£ damages for the family of the intestate who lost his life from the fault of defendant. Afterwards she sued for damages resulting to his estate from the same injury, and invoked the former judgment as an estoppel on defendant to deny its liability. The court held no estoppel. That is the reverse of the case at bar, but in principle exactly applies. If the plaintiff be estopped, had he recovered in the former action for the infant, the defendants would now be estopped to deny liability for the injury, for estoppels must be mutual, as a rule. But the doctrine of Leggott v. Railway, supra, forbids such an estoppel. Estoppels arise between the same parties when litigating the same subject matter in a subsequent suit in the same right or capacity, and not otherwise. Stoops v. Woods, 45 Cal. 439; Bigelow v. Winsor, 1 Gray, 299; Bartlett v. Boston Gas Light Co., 122 Mass. 209; Lord v. Wilcox, 99 Ind. 491; Rathbone v. Hooney, 58. N. Y. 463. [363] A good example of estoppel upon persons not parties is found in Landis v. Hamilton, 77 Mo. 554; Stoddard v. Thompson, 31 Iowa, 80; Lovejoy v. Murray, 3 Wall. 1; Atkinson v. White, 60 Maine, 396. In Corcoran v. Canal Co., 94 U. S. 741, the plaintiff, as the owner of certain bonds secured with others by mortgage to himself as a trustee, was held estopped by judgment to which he was a party as trustee, because he there, as trustee, represented himself as a bondholder. He became bound in common with other bondholders. This case, therefore, is not authority against the doctrine of this opinion. The plaintiff may well maintain his present action. Wilton v. Middlesex Railroad Co., 125 Mass. 130. The defendants have another exception to the refusal of the court below to give a certain requested instruction. The main issue before the jury was whether the plaintiff’s minor child received a personal injury while at work in defendant’s laundry wholly from their negligence. She injured her hand in a mangle, and defendants contended, and there is evidence tending to prove their contention, that they had forbidden her to work at the mangle. The presiding justice, at the close of the charge, was requested to instruct the jury that “if they find as matter of fact that Mr. Merrill (one of defendants) forbade her feeding the mangle, it wasn’t necessary for him to stop and explain its dangers; that if she returned to the mangle after being expressly forbidden, she took her own chances of injury and would be remediless in a suit by any one in her behalf.” The instruction was refused, the court remai'king, “ I think I have covered all the ground I care, to in that matter.” Upon that point, the court, after thoroughly charging upon all other issues in the case, said to the jury: “If you find that the defendants were not negligent, under the rules I have giveh you, or that Florence (the plaintiff’s child) was there (at the mangle) without direction or permission or assent of the defendants, or if you find that she was there with full knowledge from any source of the danger of the machine so that she was properly and fully instructed, or that the accident happened from her own inatten [364] tion and carelessness, on either of these grounds your verdict will be for defendant.” This instruction fully covered the instruction requested, and need not have been repeated. The evidence was conflicting and peculiarly within the province of a jury to consider, and their verdict cannot be said to have been erroneous. Motion and exceptions overruled.