McGreevey v. Boston Elevated Railway Co.

232 Mass. 347 | Mass. | 1919

Braley, J.

The plaintiff’s son Joseph McGreevey, a minor living with his father, sued the defendant in 1912 for personal injuries suffered in 1908 when he was fifteen years of age, and recovered judgment in 1913 for a substantial amount, which apparently was paid to his counsel of record, who also is the attorney for the plaintiff in the present action, brought on June 18, 1914.

It is alleged in the declaration that, because of the defendant’s negligence causing injuries to his minor son, the plaintiff has been “put to great expense for medicines and for doctoring and nursing said injuries and has been deprived of the earnings of his said minor son.” The record states that, while there was evidence tending to show negligence of the defendant and due care of the son, the jury to whom the case was submitted under instructions, to which no exceptions were taken, returned a general verdict for the defendant. The plaintiff excepted to the refusal of the judge to rule that the liability of the defendant "is fixed by the previous trial in the case of Joseph McGreevey by his next friend, the present plaintiff, against the defendant railroad.”

The ruling was denied rightly. It is familiar law that a minor, even if living with and supported by his father, is entitled to sue for damages for personal injuries caused by the negligence of another, and, being liable for his own torts, can of course be sued by those who are thereby injured. Tripp v. Gifford, 155 Mass. 108. Homer v. Thwing, 3 Pick. 492. But, even if the son had a cause of action against the defendant, the father also could sue for loss of services as well as to recover expenditures incurred for the care and cure of his child. Wilton v. Middlesex Railroad, 125 Mass. 130. Dennis v. Clark, 2 Cush. 347. The measure of damages in the first action was the injury to the child and not the injury to the father. 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 diminution1 of earning capacity after he became of full age. King v. Viscoloid Co. 219 Mass. 420, 422. The rights of each although springing from the same wrong are independent, and the judgment in the son’s case is no bar to the maintenance of the present action. Wilton v. Middlesex Railroad, supra.

It follows, that in order to recover, the plaintiff, who was not a party or a privy to the former judgment, must prove every essential allegation of the declaration as if the son’s action had not been brought or was pending for trial. Duffee v. Boston Elevated Railway, 191 Mass. 563. Hey v. Prime, 197 Mass. 474. Erickson v. Buckley, 230 Mass. 467.

The remaining exceptions to the admission of evidence, to the statements of counsel for the defendant in his opening, and in his closing argument to the jury, and to the refusal of the court to rule, “that there was no evidence that any money had been paid over to Joseph until he attained his majority,” either were within the legitimate rights of counsel or relate to the question of damages .and, having become immaterial because of the verdict, require no discussion. Robinson v. Fitchburg & Worcester Railroad, 7 Gray, 92. Carroll v. Boston Elevated Railway, 200 Mass. 527, 533. Ducharme v. Holyoke Street Railway, 203 Mass. 384, 392.

Exceptions overruled.