312 Mass. 531 | Mass. | 1942
These are two actions of tort, brought by the plaintiff to recover consequential damages on account of personal injuries sustained by his minor son when an automobile, in which the son was travelling, was struck by an automobile owned by the corporate defendant and operated by the individual defendant, its alleged employee, who was acting within the scope of his employment. The defendant in each action filed a motion to dismiss and a "plea in abatement” based upon the same grounds which,
The plaintiff’s exceptions, which were saved at the time the judge made his decision, present the question whether the findings for the defendants can be supported by any rational view of the evidence with all the inferences that may be reasonably drawn therefrom. These findings must stand if there is any evidence to support them. Kennedy Bros. Inc. v. Bird, 287 Mass. 477. Massachusetts Lubricant Corp. v. Socony-Vacuum Oil Co. Inc. 305 Mass. 269.
We first consider the pleas in abatement, so called, which in fact were answers setting up res judicata as a bar to the maintenance of the present actions and are to be treated as such in accordance with their true nature, Gallo v. Foley, 299 Mass. 1. Charles I. Hosmer, Inc. v. Commonwealth, 302 Mass. 495.
All the material evidence consisted of the pleadings, the finding, execution, and a copy of the docket in the case brought by the minor, and also evidence that McKinstery was not acting as agent of the defendant corporation at the time of the accident. The minor, as shown by the declaration filed in his case, claimed damages for personal injuries, medical expenses and impairment of earning capacity. The judge in that case made a general finding for the defendant. The father, however, was not bound by the judgment entered in the son’s case irrespective of the grounds upon which it was based. The father is seeking to recover for his own personal loss resulting from injuries to his minor child. The action by the child was for damages to him. A final judgment in the action by the child, whether in favor of or adverse to the child, would not bar the father in a subsequent action from recovering whatever damages resulted to him on account of the said injuries. The father,
The defendants contend that the fact that the minor claimed damages for medical expenses and loss of earning capacity in his action warranted the finding that the son and not the father owned the claims for such damages. It is doubtful if such a contention is open upon these so called pleas, but the mere fact that the minor made such a claim does not, upon this record, bar the father from establishing in his own right the damages that he sustained and which arose out of the minor’s injury. There is nothing to show that the minor secured medical treatment upon his own credit or that he was entitled to his earnings. It has long been recognized at common law that the father has a duty to support and care for his minor children in sickness and in health, and that the minor children are under an obligation to assist him by the rendition of such services as they are capable of rendering, and, if employed by others, to turn over their wages to him. In the absence of any evidence to the contrary the father has presumably assumed the burden of supplying the son with medical aid and was entitled to his wages. Hoyt v. Casey, 114 Mass. 397. Horgan v. Pacific Mills, 158 Mass. 402. Tornroos v. R. H. White Co. 220 Mass. 336. Freeman’s Case, 233 Mass. 287. Cammick’s Case, 259 Mass. 209. Correia’s Case, 275 Mass. 340. Luster v. Luster, 299 Mass. 480. Sciaraffa v. Debler, 304 Mass. 240.
The grounds upon which the motions to dismiss were based were not matters of law apparent on the record and these motions should have been dismissed. Adams v. Richardson, 268 Mass. 78. Johnson v. Johnson, 303 Mass. 204. Zwick v. Goldberg, 304 Mass. 66. Chandler v. Dunlop, 311 Mass. 1.
It follows that the exceptions to the allowance of the motions to dismiss must be sustained; the exceptions to the so called plea in the case of McKinstery must be sustained, and those in the case against the corporation must be overruled.
So ordered.