10 Kan. 519 | Kan. | 1873
The opinion of the court was delivered by
The same questions are in this case as in the case of the same plaintiff in error against Emil J. Sauer, decided at ¡the last term, (ante, pp. 466, 469.) Nothing further need be said therefore concerning them. There are however some additional questions in this record which will require examination. And the most important arises on the refusal of an instruction asked by the defendant Sawyer, now plaintiff in error. In the case above mentioned, Emil J. Sauer, the party injured, was a minor, (who sued by his next friend,) to recover damages for injuries to himself. This action is brought by the father to recover for the loss of the services of his minor son, and for money paid out in taking care of him during his confinement, and in accomplishing his cure. It was the undisputed testimony that both prior and subsequent to the injury the minor was in the employ of Crider & Sauer on a salary, which by the consent of the parties, and in pursuance of a contract, made by him, was received by the son. The father testified, “ My son had been working for himself and receiving his salary four or six months before he received the injury.” The son testified, “The position was got for me through my father. My father allowed me the benefit of my labor from that time to the present time. My father has allowed me to receive whatever I earn to a certain extent, when I am employed by any one. My father
“That if the jury find that Emil J. Sauer, the son of the plaintiff, at the time of the injury complained of, and since he has got well, was, has been, and is working for a salary, with the knowledge and consent of the plaintiff, and while so working received to his own use, with the knowledge and consent of the plaintiff, the money therefor, and during the rest of the time paid his own expenses, that then the plaintiff cannot recover for any loss of service of said son while disabled by the injury complained of.”
An instruction embodying a contrary doctrine was given, and the jury were told that if they found that the son sustained injury through negligence of defendant the plaintiff was entitled .to recover for the loss of his son’s services. The principle upon which this action is sustainable is very different from that upon which the one brought by the son is founded. So far as the personal injury is concerned the son sustains it all, and he alone can recover damages therefor. The father’s person is uninjured; he suffers no pain of body, and has no right to recover anything because of his son’s sufferings and injury. He recovers because the injury to his son has wrought a pecuniary loss to him, and the measure of his recovery is the extent of that pecuniary loss. All that establishes.the son’s right of recovery must be shown in this action, and something additional. The son must show that he is injured, and that such injury resulted from the negligence of defendant. The father must show this, and also that such injury has wrought a pecuniary loss to himself. fThe father is under obligations to sfipport his minor children, and entitled to receive the benefits of their labor.) If the injury increases the expense of the one, or lessens the value of the other, he suffers loss, and to this extent has a legal claim for reimbursement. The mere fact that one pays the 'surgeon’s bills of a party injured gives no right of recovery, for it may be only a voluntary payment, and money thus paid cannot be recovered, no matter how
Again it is objected that the court erred in allowing plaintiff to show what he paid out for expenses. We think the testimony competent, and that the case cited by counsel settles that point: N. Mo. Rld. Co. v. Akers, 4 Kas., 471, 472.
Still again it is insisted that there was no evidence that the services were worth anything: the measure of damages is what such services were worth, and not what was being paid by his employers. In the absence of all other testimony
The judgment of the district court will be affirmed.