White v. Osborne

110 S.E.2d 449 (1959) 251 N.C. 56

Archie WHITE
v.
J. W. OSBORNE, Clerk of the Superior Court of Cleveland County.

No. 164.

Supreme Court of North Carolina.

October 14, 1959.

C. C. Horn and J. A. West, Shelby, for defendant, appellant.

No counsel contra.

BOBBITT, Justice.

These facts are noted: (1) Apparently, no question was raised or considered in the hearing before Judge Froneberger as to the priority, if any, in respect of costs, including expert witness fees. (2) Neither the pleadings nor the evidence upon which Judge McLean's judgment is based are in the record before us. Our information is derived solely from the judgment. (3) A brief was filed in this Court in behalf of the clerk, the appellant. No brief was filed in behalf of Archie White, the appellee. The cause was submitted without oral argument.

The clerk, citing Page v. Sawyer, 223 N.C. 102, 25 S.E.2d 443, contends that the judgments, particularly the provisions purporting to give priority to Archie White, are invalid for lack of jurisdiction, and that compliance therewith would not protect him from liability to the infant plaintiff.

Only one action was instituted, to wit, an action prosecuted in behalf of the infant plaintiff by his father as next friend. In such action, nothing else appearing, the infant plaintiff was not entitled to recover for loss of earnings during his minority or for expenses incurred for necessary medical treatment; but the father, as plaintiff in a separate action, was entitled to recover therefor. Ellington v. Bradford, 242 N.C. 159, 86 S.E.2d 925, and cases cited.

Where a father, as next friend, in prosecuting an action for his infant child, seeks to recover therein the damages to which the father would otherwise be entitled, and no objection is interposed by the defendant, the father thereby waives his individual rights against the defendant. Pascal v. Burke Transit Co., 229 N.C. 435, 50 S.E.2d 534; Shields v. McKay, 241 N.C. 37, 84 S.E.2d 286; Ellington v. Bradford, supra.

Since the complaint in the infant's action is not in the record on appeal, we do not know whether recovery was sought therein for expenses incurred for necessary medical treatment. Be that as it may, it seems that the father, when the cause was heard by Judge McLean, waived his rights to recover separately from defendants. As between the father and the infant plaintiff, it would seem that the father sought to recover no more than for $3,672.50 "expended or incurred" by him for medical bills. The judgment of Judge McLean, when interpreted in the light most favorable to the father, would seem to be, in effect, a judgment for $3,672.50 in favor of the father and a judgment in favor of the infant plaintiff for the remainder ($11,017.50) of the total damages of $14,690.

It was contemplated that the judgment for $14,690 and costs would not or might not be collected in full. In this event, the judgment purported to give priority to the father's portion thereof. It is apparent that the pecuniary interests of the father and the pecuniary interests of the infant plaintiff were in sharp and irreconcilable conflict in relation to whether the father, individually, was entitled to such priority.

While the order appointing the father as next friend is not in the record on appeal, it is reasonable to assume that his appointment was made solely for the purpose of prosecuting the infant plaintiff's action. If so, it was not contemplated that conflicting interests as between the father and his infant son would develop in the infant plaintiff's action and that the father would represent his infant son in resolving such conflict. Under the circumstances, a question arises as to whether Judge McLean lacked jurisdiction in respect of such conflict on the ground that the infant plaintiff was not then represented with reference thereto. See Johnston County v. Ellis, 226 N.C. 268, 38 S.E.2d 31.

In view of said conflicting interests, the failure of Archie White, as next friend of David Walton White, to appeal from the judgment of Judge McLean, may not be considered as binding on the infant plaintiff.

With reference to the $3,750 now held by the clerk, the real parties in interest are Archie White, individually, and David Walton White, the infant. The clerk is a stakeholder, ready, able and willing to disburse the $3,750 to whomsoever may be entitled thereto. Yet the infant had no representation whatever at the hearing before Judge Froneberger. The only parties to the present proceeding under G.S. § 109-36 are Archie White, individually, and the clerk. Notwithstanding, it appears on the face of the record that the interests of the infant are vitally involved and that he is a necessary party to this proceeding. Unless and until the infant, represented by a disinterested guardian ad litem (for he would be a defendant in respect of Archie White's motion or "complaint" under G.S. § 109-36), has had his day in court, the clerk would not be protected from liability to the infant.

Under the circumstances, it was error to proceed to judgment when it appeared that the interests of the infant, who was not a party to or represented in this proceeding, would be adversely affected thereby. Hence, the judgment of Judge Froneberger is stricken and the cause is remanded for further hearing. Prior thereto, David Walton White should be made a party defendant in the present proceeding. A disinterested guardian ad litem should be appointed to represent him and to file herein such answer to the motion or "complaint" of Archie White as may be appropriate to safeguard and protect the legal rights of said infant.

Error and remanded.

HIGGINS, J., not sitting.