Ellington Ex Rel. Ellington v. Bradford

86 S.E.2d 925 (1955) 242 N.C. 159

Helen Gayle ELLINGTON, by her Next Friend, Myrtle Ellington,
v.
Oran BRADFORD and Sanders Motor Company.

No. 457.

Supreme Court of North Carolina.

April 20, 1955.

Lassiter, Leager & Walker, by Wm. C. Lassiter, Raleigh, for defendants-appellants.

Bunn & Bunn, by Thomas D. Bunn, Raleigh, for plaintiff-appellee.

HIGGINS, Justice.

This appeal challenges the right of a minor child to recover medical bills as an element of damages in its action for personal injuries negligently inflicted. The mother instituted this action as next friend. The complaint alleges she is a widow but is silent as to whether the father died before or after the child received the injuries, in the treatment of which the bills were incurred.

In case of injury to an infant by wrongful act, a cause of action in behalf of the parent (the mother if the father is dead) arises, permitting recovery for (1) the loss of earnings of the child during its minority if unemancipated, and (2) expenses incurred for necessary medical treatment. Smith v. Hewett (O'Brien v. Hewett), 235 N.C. 615, 70 S.E.2d 825, 32 A.L.R.2d 1055; Gillis v. Transit Corp. of Norfolk, 193 N.C. 346, 137 S.E. 153; Shipp v. United Stage Lines, 192 N.C. 475, 135 S.E. 339. Likewise, another cause of action arises on behalf of the child to recover damages for pain and suffering, for permanent injury, and for impairment of earning capacity after attaining majority. White v. Holding, 217 N.C. 329, 7 S.E.2d 825. The two causes of action are different. The parties are different. And to combine the two in one action would be a misjoinder. Neither a parent nor a stranger who acts as next friend in bringing a suit for an infant becomes thereby a party to the cause. Rabil v. Farris, 213 N.C. 414, 196 S.E. 321, 116 A.L.R. 1083.

The cases of Pascal v. Burke Transit Co., 229 N.C. 435, 50 S.E.2d 534, and Shields v. McKay, 241 N.C. 37, 84 S.E.2d 286, 288, are in harmony with the foregoing rules. In each of these cases it is held that a parent who as next friend brings and prosecutes an action for his infant child and claims as elements of damage the loss of earnings during minority and expenditures for the treatment of the injuries sustained, is deemed thereby to have waived his individual rights and is estopped to assert them. "`"In such a case, the child is entitled to recover the full amount to which both he and his parent would have been entitled if separate suits had been brought, and the parent is estopped from afterwards bringing any action in his own right."'" Shields v. McKay, supra.

We have not overlooked the possible bearing of G.S. § 44-49 on the question here presented. That section creates a lien upon any sums recovered as damages for personal injury in favor of any physician, dentist, trained nurse, or hospital for medical services rendered and for drugs or medical supplies furnished in the treatment of "the injury in compensation for which the said damages have been recovered." The section also provides, "Where damages are recovered for and in behalf of minors or persons non compos mentis, such liens shall attach to the sum recovered as fully and effectively as if the said person were sui juris."

Does the foregoing section change the common-law rule and permit the recovery of expenses for medical treatment as a part of the minor's cause of action? We are of the opinion the section does not change the rule. The lien is created only in cases where the beneficiary may be indebted for the expenses incurred. In the case of an unemancipated minor, the parent and not the child is indebted for the medical treatment. Ordinarily, the liability is the liability of the parent and not the liability of the child. Of course, an emancipated minor, or one without parent, or one whose parent is financially unable to pay for the treatment, may be liable as for other necessities. The view that the rule is not changed is supported by the succeeding section, G.S. § 44-50, which provides a like lien shall attach to funds paid in settlement for injuries whether in litigation or otherwise in cases where evidence as to the amount of such charges would be competent in the trial of such action.

We recognize the right of the parent to recover necessary expenses for medical treatment. Allegations with respect thereto are necessary in the parent's complaint, and evidence in support is comptent. In a suit on behalf of the child in the absence of a waiver of the parent's right, such allegations are not proper in the complaint, and evidence with respect to such expenses is incompetent. In short, where the parent recovers either by judgment or by settlement for loss of earnings during minority of his unemancipated child, or for expenses incurred in its treatment for injuries inflicted by tortious act, the lien attaches to the fund recovered. In cases (1) where the parent waives his right, or (2) the child has no parent, or (3) the child is permitted to recover all elements of damage, the lien likewise attaches. The sections referred to provide rather extraordinary remedies in derogation of the common law, and, therefore, they must be strictly construed. McKinney v. Deneen, 231 N.C. 540, 58 S.E.2d 107.

The decisions of this Court recognize the right of the defendant to require that the parent's cause of action and the infant's cause of action be separately brought, provided he makes objection to the joinder in apt time. Conceivably, the defendant might have a defense in an action brought by the parent which would not be available if the action is brought by the infant. In this case, by their motion to strike, the defendants objected to the joinder in the infant's cause of action the allegations with respect to medical expenses. The defendants, therefore, have done nothing to waive their right. They raised objection at the first opportunity. Paragraph Nine of the defendants' motion to strike should have been allowed. The court was correct in overruling the motion to strike other parts of the complaint. The ruling of the court below is

Modified and affirmed.

BARNHILL, C. J., took no part in the consideration or decision of this case.