153 Ky. 228 | Ky. Ct. App. | 1913
Opinion op the Court by
Affirming.
Harley Fulkerson, a boy 14 years of age, was struck and injured by an automobile belonging to Mrs. Frank Guthrie Akers. His father, E. L. Fulkerson, brought this action against Mrs. Akers to. recover damages for the loss of his son’s services, and for expenses incurred for medicines and medical treatment. The jury returned a verdict in his favor for $300. Judgment was entered accordingly, and Mrs. Akers appeals. ■
The accident occurred on Third Street, near Green, in the city of Louisville, on December 17, 1909. Harley Fulkerson and two companions about the same age were playing “tag” or “catcher.” Harley had just run from
Defendant’s witnesses say that the express wagon was proceeding south on Third Street on the west side, and the automobile was following the express wagon. When it reached the place of the accident the chauffeur turned to the east side of the street for the purpose of passing the wagon. At that time the automobile was going at the rate of from four to eight miles an hour. The chauffeur blew his horn as he came up behind the wagon, and also blew it just before Harley was struck. When Harley started across the street he passed immediately under the horses’ heads, and had not the driver of the express wagon pulled his horses, they would have come in contact with him.
While it is true that the weight of the evidence is with the defendant, we are unable to say either that there was no evidence to take the case to the jury or that the verdict is flagrantly against the evidence. Nor can we say, as a matter of law, that the injured boy was guilty of contributory negligence. There was sufficient evidence to justify the conclusion on the part of the jury that he would not have been injured had it not been for the,excessive speed of the automobile, and the failure of the chauffeur to give reasonable signals of its approach.
After Harley Fulkerson was injured, two actions were filed against the defendant; one by the boy, by his father and next friend, to recover for his physical and mental suffering, and the permanent impairment of his power to
In the suit of the boy by his father as next friend, the court, by its instructions, limited the boy’s recovery to his pain and suffering and the permanent impairment of his power to earn money after he became 21 years of age. Therefore, no recovery was had, or could have been had, in that case for the damages sued for in this action. To constitute a judgment and estoppel, there must be an identity of parties as well as of subject matter, and it is necessary that the parties as between whom the judgment is claimed to be an estoppel should have been parties to the action in the same antagonistic relations, or else they must be in privity wdth the parties in such former action. 23. Cvc., 1237. Following this rule, it has been held that a judgment in favor of the defendant in an action by a married woman for personal injuries is not conclusive against the plaintiff in an action by her husband to recover for the loss to him growing out of the injury. Womack v. City of St. Joseph, 201 Mo., 467, 10 L. R. A. (N. S.) 140. In the case of Karr v. Parks, 44 Cal., 46, it
As the suit by the boy was for pain and suffering, and the permanent impairment of his power to earn money after he became 21 years of -age, and as the suit by the father in this action is for the loss of the boy’s services, and for medicines and medical treatment, it follows that there is neither an identity of parties nor of subject matter, and that the judgment in the former action in favor .of the defendant is not a bar to the present action. Nor is the mere incident that two juries upon substantially the same facts reached different conclusions any reason why the verdict in this case should not stand. Nor do we think that plaintiff, by bringing the action as next friend of 'his son waived his. right to recover in this case. That plaintiff might have waived his right to recover in this action by suing on behalf of his son to recover for the entire injury, there can be no doubt, but the question of waiver is always one of intent. The very fact that two suits were brought, one for the benefit of the son, and one for the benefit of the plaintiff, negatives the idea that plaintiff intended to waive his right of action. Where an infant is injured through the negligence of another, two distinct causes of action arise; one in favor of the infant for his pain and suffering, and the permanent impairment of his power to earn money after reaching the age of 21 years, and the other in favor of the father for loss of the -infant’s services until he reaches maturity, and for medicines and medical services. These items of damage make up the whole injury. The party causing the injury is liable in damages for the entire injury. Where the father files two suits, one for the benefit of the infant for ■such damages as he may rightfully recover, and one for
Complaint is made of misconduct of counsel for plaintiff, but this cannot be considered as it is not shown by the bill of exceptions. The only way in which matters occurring on trial in the circuit court may be brought up for review in this court is by bill of exceptions. Louisville Ry. Co. v. Gaar, 112 S. W. 1130; Hendrickson v. Commonwealth, 147 Ky., 298.
We find no error in the instructions.
Judgment affirmed.