Summary
noting that parents normally have the vested right to seek compensation for medical expenses when their minor child is injured by another but that the right may "vest" in the child when the parents file suit on the child's behalf and take an active role in the litigation
Summary of this case from Betz v. Farm Bureau Mutual Insurance Agency of Kansas, Inc.Opinion
Rehearing Denied Oct. 29, 1954.
Page 708
Syllabus by the Court.
Since the evidence on the plea of estoppel did not show that the issues of lost earnings and of medical expenses were submitted to the jury in the minor son's previous action, the plea filed in the father's action for such damages was without evidence to support it, and the court erred in sustaining the plea and in dismissing the father's action.
Grady O. Brown sued Seaboard Air Line Railroad Company for damages sustained by him by reason of a collision between an automobile operated by his minor son and the defendant's train. The damages sued for were medical expenses and the loss of the son's earnings. The defendant filed a plea of estoppel, in which it was alleged that the plaintiff was estopped to bring the present action, because in a previous action in a court of competent jurisdiction the son, suing through his father as next friend, sought, among other damages, lost earnings and medical expenses. It was further alleged in the plea that the issues as to lost earnings and medical expenses
Page 709
were submitted to the jury with the rest of the case in the prior action, and that the jury returned a verdict for the defendant. The court, sitting without the intervention of a jury and after the introduction of evidence, sustained the plea and dismissed the action and the plaintiff excepts.
Ben Smith, Marietta, O. C. Hancock, D. W. Rolader, Atlanta, for plaintiff in error.
Troutman, Sams, Schroders&sLockerman, Henry B. Troutman, Atlanta, J. Glenn Gilis, Marietta, for defendant in error.
FELTON, Chief Judge.
While ordinarily the cause of action for lost earnings and medical expenses expended is in the father of a minor child, Code Ann. § 105-107; Sheffield v. Lovering, 51 Ga.App. 353, 354(3), 180 S.E. 523, a father may emancipate his minor child, Hargrove v. Turner, 112 Ga. 134, 37 S.E. 89, and thereby vest in the child the right through his guardian or by next friend to sue for such damages. Coleman v. Dublin Coca-Cola Bottling Co.,Hughes v. Field, 47 Ga.App. 369, 170 S.E. 549. The right of action is a single one and cannot be vested in both the father and child at the same time. It must be vested in one or the other. In a minor's action seeking damages for lost earnings and medical expenses, he seeks damages which are ordinary recoverable only by the father. In a minor's action for such damages, where he sues through his father as his next friend, while the father is not an actual 'party' to the action, he nevertheless necessarily acquiesces in the maintenance of and espouses that action. This conduct would amount to an acknowledgement by the father that his minor child had been emancipated, and that the cause of action for the damages sued for is in the child. While it is true that a father may revoke his emancipation of his minor child, once he divests himself of a cause of action for loss of earnings and medical expenses and vests such cause of action in the child by emancipating the child, and the child sues on the cause of action and pursues it to judgment, the father cannot revest the cause of action in himself by revoking his emancipation of the child. An estoppel in pais would arise based on the same principle as where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position through a judgment of the court, or though the acquiescence of the opposite party to his prejudice, he will not thereafter be permitted to assume, as to the same subject matter and against the same adversary, a contrary position. See 177 Ga. 128, 132, 169 S.E. 344; Bruce v. Bruce, 195 Ga. 868, 25 S.E.2d 654. This would apply whether a jury returned a verdict for the plaintiff or the defendant. By such conduct in the child's action, the father would lead the defendant to believe that the child had been emancipated and thereby deprive the defendant of the defense that the cause of action for damages for loss of earnings and medical expenses is not in the child but in the father, and would cause the defendant to subject himself to possible liability for those items of damages.
In the instant case, the defendant in his plea of estoppel alleges: 'Among the items of damages submitted to the jury for its deliberation and determination as to whether or not any recovery should be had therefor against Seaboard Air Line Railroad Company was (1) loss of salary to Gilbert Brown, (2) hospital expenses incurred for Gilbert Brown, and (3) ambulance service rendered Gilbert Brown.' Had the defendant sustained such allegation by competent evidence, what has been said above would apply, and the court would have been correct in its ruling on the plea. However, since the bill of exceptions recites that the evidence introduced at the hearing on the plea was the petition in Gilbert Brown's action, the defendant's answer, the jury's verdict and the judgment thereon, and it does not appear that any evidence was introduced in support of the allegation that the issues of lost earnings and medical expenses were submitted to the jury, there was insufficient evidence to sustain the plea.
The court erred in sustaining the plea and in dismissing the action.
Judgment reversed.
QUILLIAN and NICHOLS, JJ., concur.