280 N.W. 809 | Mich. | 1938
Appellants, Edwin J. and Carl T. Hess, copartners doing business as the Hess Cartage Company, urge that the judgment secured by Sophia Gumienny as next friend of Anthony Gumienny, a minor, against the City of Detroit, Department of Street Railways, in which the said copartners were joined as alleged joint tortfeasors, is conclusive of the question of liability and precludes any recovery against said Hess Cartage Company in this action brought by Anthony's father for his consequential damages suffered by reason of the injury to his son. It is their contention that the father of an injured child has but a derivative right of action, and of necessity can have no greater rights than the child himself; that the prior suit of the minor by his next friend judicially determined that the negligence of the City of Detroit, Department of Street Railways, was the sole cause of the injuries to plaintiff's son; that the son could look only to the City of Detroit, Department of Street Railways, for his damages, and that the father, who has no greater rights than the son from whom he derived his right of action, must look to the same source to recover his consequential damages.
In support of the judgment returned in his favor in the trial court, appellee relies principally upon the case ofLaskowski v. People's Ice Co.,
In the Laskowski Case, a married woman recovered a judgment for personal injuries. Thereupon, her husband brought an action to recover consequential damages of the same defendant. On the question of the negligence of the defendant and the contributory negligence of the wife, the court charged the jury that they "must find that the defendant ice company was guilty of negligence as charged, and that the plaintiff's wife, Anna Laskowski, was free from contributory negligence. The only questions, therefore, for your consideration, are whether or not the plaintiff has sustained damage, loss and damage, as a proximate result of the injuries to his wife, Anna Laskowski, sustained through the accident; and if you find that he has, then the only remaining question is for you to determine the amount of the damage."
This instruction was held clearly to be wrong since the husband was not a party or a privy to the action brought by the wife in her own behalf. The same theory, namely, that causes of action accruing to the husband and wife by reason of a tortious wrong to the latter are separate and distinct and neither may be pleaded in bar of the other, is present in the parent and child relationship.
The general rule is well stated in 1 Freeman on Judgments (5th Ed.). § 481, as follows:
"If an infant is wrongfully injured, two distinct causes of action accrue, one in favor of the parents for loss of services and expenses incurred and another to the infant for the other elements of damage from personal injuries including impaired earning capacity after reaching majority. In such case a judgment in action by one is not res judicata or a bar in action by the other. The parent is not bound by the judgment in the child's action merely because he *415 acted as next friend, guardian ad litem or guardian, except where he has permitted the child to recover or litigate the right to damages which would otherwise belong to him, nor is such a judgment evidence in his behalf in his own action."
The rule expressed above finds ample support in the adjudicated cases. In Guy v. Lumber Co.,
A question similar to the one in the instant case arose inHooper v. Railway Co.,
"The same jury might have consistently found liability of the railroad company for injuries to the boy who was hurt, for the reason they might have concluded that the evidence tended to show he was in the exercise of all ordinary care and diligence in trying to cross the bridge. But when they came to consider the case of the father we cannot say that there was not evidence from which they might have reached a different conclusion, and found no liability of the defendant to him; it being insisted on the part of the defendant that he was precluded from recovering on account of his negligence in permitting his minor son to drive across a bridge which he claimed to be dangerous, when the father who was present, had opportunity of doing the driving himself, with less danger of injury, on account of his experience and superior strength and skill."
In McGreevey v. Railway Co.,
"The father's right of action was not in any just sense consequential upon that of the son. It was independent of his right and was based upon the father's personal loss. The son's action was for the pain and suffering caused by the injury and for the loss of wages or diminution of earning capacity after he became of full age. King v. Viscoloid Co.,
The parties were not the same in this action, and the father was not permitted to urge that a former action brought on behalf of his injured son was res judicata of the question of defendant's negligence in a subsequent action to recover for the loss of the services, earnings and medical expenses occasioned by the son's injuries.
To support the argument of res judicata,
"There must be not only identity in subject-matter, cause of action and parties, but also in the quality of the person for or against whom the claim is made. All others are strangers to the litigation. The plaintiff here is not suing in the same capacity as was the plaintiff in the former action. There the son was the real plaintiff, the father a mere nominal plaintiff. Persons who are mere nominal and not the real parties are not bound." Henry v. Railway Co.,
If the causes of action were simply derivative and constituted a bar upon the facts which were determined in the suit which was tried first, there would be no reason why the record and judgment of the prior suit should not be introduced in evidence in the later proceedings. The courts, however, refuse to permit this upon the theory that the causes of action are separate and distinct and as such must rest upon their own foundations. The same conclusion has been reached even though the minor who was injured was denied recovery.
In the case of Bernard v. Merrill,
"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. * * *
"The evidence was conflicting, and peculiarly within the province of a jury to consider, and their verdict cannot be said to have been erroneous."
The same result was reached in Malsky v. Schumacher Ettlinger,
"There can be no estoppel unless there is privity of property, parties, estate or heirship between the plaintiff and his father as to this cause of action. * * * Here there was no such privity."
A consideration of the cases relied upon by appellants reveal that most of them differ in material respects from that of the instant case.
The case of Good Health Dairy Products Corp. v. Emery,
In the case at bar, the causes of action are separate and distinct, and the issues involved are different.
In Blue Valley Creamery Co. v. Cronimus,
In Central of Georgia R. Co. v. Robins,
The cases of Lundergan v. Railroad Co.,
Giedrewicz v. Donovan,
It is our conclusion that the judgment secured against the City of Detroit, Department of Street Railways, by Anthony Gumienny, by his next friend, is not res judicata in this subsequent proceeding by the father to recover consequential damages which arose by reason of the injury to his son.
Judgment affirmed, with costs to appellee.
WIEST, C.J., and BUTZEL, BUSHNELL, SHARPE, POTTER, NORTH, and McALLISTER, JJ., concurred. *421