63 Tex. 54 | Tex. | 1885
The refusal to give the charge to which the fourth assignment relates was not error; for the third and fourth charges asked by the defendant, and given in a modified form, were applicable to the case, and presented clearly the legal proposition presented by the charge refused.
The charge complained of in the tenth assignment was correct; a similar charge was considered in G., C. & S. Fe R’y Co. v. Evansich, 61 Tex., 5, and it is unnecessary here to repeat the grounds on which the charge was held proper.
The second, fifth and sixth charges asked by the defendant, and
A further consideration of the question does not lead us to the conclusion that our decision in that case was incorrect, and for the reasons given in the opinion in that case, without again repeating them, we hold that the ruling of the court below in this case in this respect wás correct.
It does not appear that the testimony of the witness Jodon was objected to, but if it did, there would have been no error in its admission ; for it tended to show that the employees of the appellant knew that the turn-table was dangerous, and that another child had been injured upon it but a short time before the appellee was injured, and that notwithstanding this no effort was made to so secure it that children could not use it.
The court below having. enumerated, in the charge given, the elements of damage which the jury might take into consideration in a case in which a minor brings suit to recover for injuries to himself, instructed the jury that they might give damages for temporary bodily disability.
The father of the appellee had recovered for such temporary disability as may have resulted to the appellee to the time of his majority ; and was so entitled to recover, because he was entitled to .the services of his minor son until he arrived at his majority, and such temporary disability as diminished the value of services to that time gave cause of action to him and not to his son.
Temporary bodily disability, as an independent element of damage, has relation solely to inability, or diminished capacity to labor; and in so far as an injury may effect this, in case of a minor having a parent entitled to his services, the injury is in legal contemplation to the parent, who alone may recover therefor.
We regard it as elementary, that “ A minor son owing services to his father cannot recover for loss of time or inability to labor or earn money during the period of his minority.” 3 Sutherland on Damages, 720; Stewart v. City of Ripon, 38 Wis., 588; Traver v. Railroad Co., 3 Keyes (N. Y.), 499; Minick v. City of Troy, 19 Hun, 256; Lewis v. Farrell, 46 N. Y. Superior Court Rep., 358.
For this error in the charge of the court, the judgment of the court below is reversed and the cause remanded.
Reveesed and Remanded.
[Opinion delivered January 16, 1885.]