Sawyer v. Sauer , 10 Kan. 519 ( 1873 )

The opinion of the court was delivered by

Brewer, J.:

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 allows me to receive the proceeds of my own labor, and I pay my own expenses.” This instruction was asked by defendant and refused:

“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 great the wrong done. But where the party paying is, by virtue of the relations subsisting between him and the party injured, bound to pay such bills, any act of a third party which creates a necessity for such bills casts a legal liability upon him. The father is, as to his minor children, thus situated. Prima facie, therefore, he has a right' to recover. But circumstances may arise by which the father is released from his obligations to support, or loses or relinquishes his right to services. Whenever this is shown then the right to recover ceases. Did the testimony show that the father had lost or relinquished his right to his son’s services ? for unless it did, or at least raised such a question of fact as ought to have been settled by the jury, there was no error in the instructions given and refused. Questions as to the right of a parent to the child’s services have generally arisen and been discussed in these two classes of cases, first, where the parent has brought an action for the seduction of a daughter, and second, where after the services have been performed by the child there is a dispute as to whether parent or child has the right to recover for them. In the first class of cases the daughter, being a party consenting”, has no right of recovery,' and hence courts in their zeal to punish the offender have gone to great lengths in sustaining the parent’s right to services. Hardly anything has been sufficient to so far destroy this right as to prevent the parent’s recovery for the loss of services sustained by the seduction of the daughter. Especially has this been true in the state of New York, where see the cases of Martin v. Payne, 9 Johns., 387; Sargent v. — , 5 Cowen, 106; Clark v. Fitch, 2 Wend., 460, though a strong effort was made in the case of Bartley v. Ritchmyer, 4 N. Y., 38, to enforce the rule more stringently. On the other hand, in cases where the employer has paid the child for the services he has rendered, and the parent afterward sues for them, courts have leaned in the opposite direction, and considered comparatively slight circumstances as sufficient to show a relinquishment by the parent of all claim upon the services of his child. This has been done to protect an employer acting in good faith, and paying the party who has actually performed the services. See the cases cited by counsel for plaintiff in error. The legislature of this state have attempted to assist in this direction: Gen. Stat., 5.80, ch. 67, §4. It is easy to see that under these circumstances very different expressions and decisions will be found in the books concerning the relinquishment by the parent of his right to his child’s services. In this case no services were performed. There is no attempt to make an employee pay a second time. ^The question is,, had the father done that which released him from all obligation to take care of his son during his confinement? for the right to services goes hand in hand with the obligation to support. The father’s right to services extend to the period of majority. He may alienate or relinquish it for a while, and afterward resume it. It may be a question whether he can, unless he proceed under the apprentices’ act, make such a contract, or so act, as to destroy the rights and obligations ®f his relation beyond his power to resume them. In this case he unquestionably recognized the obligations, and proceeded to discharge them. This was done with the assent of the son; and if father and son adjust their relations upon the basis of the obligation of the parent to support, it is difficult to conceive of any good reason why a third party, who has through his negligence wrought an injury upon the child, should be allowed to. question the validity of such adjustment. We see no error in the ruling of the district court.

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 •a jury is warranted in finding a party's services worth that: which his employers are paying him.

The judgment of the district court will be affirmed.

All the Justices concurring.