Smith Ex Rel. Kirby v. Hewett , 235 N.C. 615 ( 1952 )

70 S.E.2d 825 (1952) 235 N.C. 615

SMITH
v.
HEWETT et al.
O'BRIEN
v.
HEWETT.

Nos. 602, 606.

Supreme Court of North Carolina.

May 21, 1952.

Moore & Corbett, Burgaw, Isaac C. Wright, Wilmington, Frink & Herring, Southport, for plaintiff, appellant.

James & James, Wilmington, for defendants, appellees.

DEVIN, Chief Justice.

It was chiefly urged for error by the defendants that under the court's instruction on the issue of damages (the fourth issue) the jury was permitted to consider as elements of damage in the case of Graham Smith, an unemancipated minor, hospital, medical and nursing expenses incurred, and also loss of earnings and diminished earning capacity during his minority.

The general rule is that an unemancipated minor cannot recover as an element of damage in an action for personal injury for loss of earnings or diminished earning capacity during his minority, but that the father is primarily entitled to his services and earnings as long as the minor is legally in his custody or under his control. Shipp v. United Stage Lines, 192 N.C. 475, 479, 135 S.E. 339; Toler v. Savage, 226 N.C. 208, 37 S.E.2d 485. The father is under the legal duty to support his child during minority, and he has the right of action to recover for loss of earnings and for expenses incurred for medical care in treating an injury to his child caused by the wrongful act of another. He would have right to maintain an action to recover the amounts he had paid thereon, and also for those for which he is legally liable. Williams v. Charles Stores Co., Inc., 209 N.C. 591, 601-602, 184 S.E. 496; White v. Holding et al. Commissioners of Johnston County, 217 N.C. 329, 7 S.E.2d 825.

Conceding these principles of law, the plaintiff contends they are not applicable here under the facts disclosed by the record.

The plaintiff Graham Smith at the time of the injury was 17 years of age. His parents had been divorced several years before, but no order was made as to his custody. His mother testified, "We were both to have him together." His father lived in Brunswick County and his mother in Pender, but he lived part of the time with his grandmother in Brunswick and part of the time with his mother. After his injury both father and mother took him to a hospital in Wilmington, and later to a hospital in Charlotte. Several physicians treated him. All of the bills are unpaid except $50 paid by the father. The bills were made out in the name of W. C. Smith, the father. No question was presented as to liens on the recovery in favor of those rendering treatment as provided by G.S. § 44-49.

Under authority of Pascal v. Burke Transit Co., 229 N.C. 435, 441, 50 S.E.2d 534, the mother, who appeared in the action and conducted it as next friend, would be estopped to maintain claim for loss of services or for medical expenses incurred. But this rule does not apply to the father who instituted an independent action to recover for loss of services of his son and for medical expenses incurred in his treatment for which the father was primarily chargeable. He is not estopped, and, notwithstanding the divorce, is in law liable for medical and hospital expenses incurred in the treatment and care of his minor son. Wells v. Wells, 227 N.C. 614, 44 S.E.2d 31, 1 A.L.R. 2d 905. Hence, his asserted right to recover therefor from the wrongdoer cannot be ignored. Though the father is now dead, he was entitled to the services of his son for the two years he survived after the injury and to maintain an action to recover as against the tort-feasor. His administrator is entitled to continue the action instituted for that purpose.

It is apparent that there was error in charging the jury to take into consideration without qualification these elements in determining the amount of damages to be awarded Graham Smith and to add thereto the cost of all necessary medical and hospital expenses incurred, plus loss of earnings and earning capacity. Williams v. Charles Stores Co., Inc., 209 N.C. 591, 184 S.E. 496.

On the appeal of Prince O'Brien, administrator of W. C. Smith, from the ruling of the court in limiting his recovery to $50, the appellees admit error in the court's instruction, but do not concede that all the bills which were offered were properly admitted in evidence.

The court in the exercise of its discretion set aside the verdict on the second issue as to the liability of S. H. Hewett, as being contrary to instructions, and awarded a new trial on that issue.

The plaintiff O'Brien, administrator, appealed from the judgment on the fifth issue limiting his recovery to $50, and in that case the defendants appellees concede error.

On defendants' appeal in the Graham Smith case, as hereinbefore set out, we are of opinion there was error in the court's instructions to the jury on the issue of damages, the fourth issue.

Under these conditions we think the rights of the parties could be more satisfactorily and properly adjudicated by a general new trial of all the issues raised in the two cases which were consolidated for trial.

This disposition of the appeals renders it unnecessary to decide the question debated on the argument as to the effect of the directed verdict on the second issue in the light of the jury's response thereto. As the case will be heard de novo, we express no opinion as to the correctness of the court's instructions on the first and third issues.

New trial.