165 A. 52 | Pa. Super. Ct. | 1932
Argued November 16, 1932.
Wallace Merle Haines, a boy twenty years old, while walking on the proper side of the road — (the left side, facing traffic: Skodis v. Phila. R.T. Co.,
This appeal by the defendant is concerned with matters wholly unrelated to the defendant's negligence.
The accident occurred on August 1, 1930. The boy became of age on June 13, 1931. Overlooking this fact, an action in trespass was brought on September 10, 1931, by "Wallace Merle Haines, minor, by his parents and next friends, James L. Bruner and Mardie Bruner, and James L. Bruner and Mardie Bruner, his wife, in their own right," against Wiley Fitzgerald, to recover the damages sustained by them respectively. Mardie Bruner was the boy's mother; James L. Bruner, his step-father. Both causes of action had to be joined in one suit under the Act of May *293
12, 1897, P.L. 63; Mahoney v. Park Steel Co.,
When the case was called for trial on January 1, 1932, plaintiffs' counsel moved "to amend the record, so that the words `Wallace Merle Haines, minor' be amended so as to read `Wallace Merle Haines' in his own right, he having reached the age of 21 years". Defendant's counsel said, "I reserve my rights. My opinion is, that this suit was filed after this boy was of age. I object to the amendment, as not being the formal amendment to the cause of action." The court allowed the amendment. It developed, after a few questions, that the boy was twenty-one years old when the action was brought. Appellant contends this caused a variance between the allegata and probata and that the suit could not proceed because brought by the boy's next friends. He did not ask for a continuance on the ground of surprise. He could scarcely have alleged surprise for it developed that he had known the boy's age for over a year. He took the position that bringing the suit, as it was done, was an error of substance which did him serious harm, and that the error could not be cured by amending the record so as to omit the next friends. He is wrong.
When a suit is brought in the name of a minor by a next friend, "it is the infant, not the next friend, who is the real and proper party. The next friend, by whom the suit is brought on behalf of the infant, is neither technically nor substantially the party, but resembles an attorney, or a guardian ad litem, by whom a suit is brought or defended in behalf of another": Morgan v. Potter,
It follows, then, that if this suit had been brought when Wallace Merle Haines was a minor, he would have been the real party plaintiff. His next friends — apart from their demand in their own right — would not, except to supply a party responsible on the record for costs. When by an oversight of counsel the action was brought after he became of age in the form, "Wallace Merle Haines, by his parents and next friends," etc., he was, nevertheless, at all times the party plaintiff and the addition of the `next friends' was only surplusage, except possibly as to the additional liability for costs. The court committed no error and the defendant was done no harm by the amendment. It was wholly a matter of procedure: 14 R.C.L. 280, sec. 50. The statement as filed complied with the Practice Act of 1915, P.L. 483. It was sworn to by Mardie Bruner, a plaintiff in her own right and was signed by the attorney. The objection on that score came too late in any event, at the trial: Act of May 23, 1923, P.L. 325.
The defense was based on a release, a copy of which is printed in the margin.
"Received of W.V. Fitzgerald, this eighth day of September, 1930, the sum of __________ Dollars, in full satisfaction and discharge of all claims accrued or to accrue in respect of all injuries or injurious results, direct or indirect, arising or to arise from an accident sustained by me on or about the first day of August, 1930, when struck by an automobile of Mr. Fitzgerald.
Witnesses:
F.B. RICH. WALLACE HAINES (SEAL)
"This is to certify that I, Mrs. J.L. Bruner and Mr. J.L. Bruner, parents and guardian of the above named Wallace Haines, a minor of twenty years of age, in consideration of the above payment, which is made to said minor at my request, do hereby acknowledge satisfaction in full of all claims arising out of said injuries, and do release and forever discharge said W.V. Fitzgerald and his agents and employes, from any liability by reason thereof.
"As further consideration for payment of said sum I hereby agree to protect the said W.V. Fitzgerald against any claim for damages, compensation or otherwise on the part of my son, Wallace Haines, or any other party growing out of or resulting from injury to my son, Wallace Haines, in connection with the abovementioned accident and to reimburse or make good to said W.V. Fitzgerald any loss or damages or cost the said W.V. Fitzgerald may have to pay if any litigation arises from said injuries.
"Witness my hand and seal this Eighth day of September, 1930. Witnesses:
F.B. RICH. MRS. J.L. BRUNER, (SEAL)
MR. J.L. BRUNER." *296
At the time it was signed the boy was a minor. It was signed in the hospital under circumstances referred to at more length later. The consideration was left blank. A check for $375 made payable to the "Order of Mardie Bruner and James L. Bruner, parents and guardian of Wallace Haines," was given the parents, which was cashed and the proceeds received by the mother. The boy and his parents all testified that he got none of it. There was no evidence in contradiction. Neither Mardie Bruner nor James L. Bruner had been appointed guardian for the boy.
The court charged the jury that if they believed from the evidence that the boy did not receive any of the proceeds of the check or obtain any of its benefits, the release would not bind him because he was a minor when he signed it; that as to the parents, as they kept the money, they were bound and could recover no damages in this case. The charge, as respects the minor, was warranted by the opinion of the Supreme Court in Hollinger v. York Railways Co.,
The plaintiff also claimed that his signature to the release was procured by Rich, the representative of the insurance company who obtained it, by fraud and misrepresentation. The boy had been in the hospital thirty-eight days and wanted to go home. Rich came to his room, he said, as if he were an officer of the hospital and told him that in order to be discharged he would have to sign a paper, which was not read to him, nor explained to him and which he did not read, but relied on the representation as to its purport, not knowing that Rich was not acting for the hospital; he was told that he should sign it, as his mother and father had signed it. His leg was in a cast, he had a headache and his eyes were weak. Rich admitted that he had not talked settlement with the boy, although he was twenty years old and working for wages, but had made all the arrangements with the boy's mother and stepfather. He admitted that he paid the boy no money and did not give him the check, although he said he handed it to his mother in his presence, — which they denied. The release had been prepared in Pittsburgh and brought there ready for signing, after a prior meeting with the mother and stepfather at which the boy was not present, but at which, Rich said, the terms were agreed on. But they were not set out in the release. The consideration for the release was not filled in when it was signed, but was left as `--------- *298
dollars'. Haines was taken out of the hospital to his home the next day. The parents also testified to misrepresentation, made to them by Rich as to the need and purpose of the paper. Rich used an office in the hospital and seemed to be acting as one of its officers. Much of the foregoing was denied by Rich, but the question was one of fact for the jury and was fairly submitted to them by the trial judge, with instructions as to the burden of proof in accord with the decisions of the Supreme Court: Hogarth v. Grundy,
Of course, the evidence relative to fraud in procuring the release did not become of importance in the case unless the jury found that Haines had received part of the consideration for the release or had participated in its benefits; or had ratified or affirmed it after he became of age; and the uncontradicted testimony was to the contrary. The court below was satisfied that the verdict was in accord with the weight of the evidence, and our reading of the testimony leads us to the same conclusion.
The other matters specified as error do not merit extended consideration.
The assignments of error are overruled and the judgment is affirmed.