COLT, Circuit Judge.
This was an action to recover for personal injuries, brought by a minor through his father as next friend, in which the jury returned a general verdict in favor of the plaintiff, assessing damages in the sum of $5,000. The assignments of error relate to the rulings of the court below on the assessment of damages. In the instructions to the jury upon this point the court said:
“You may, in determining the damages to be awarded the plaintiff in this ease, provided yon shall find that he is entitled to recover, consider the question of loss of services; Unit is, the plaintiff is entitled to recover, if you shrill find from the evidence that the plaintiff is entitled to recover anything, for loss of his services, past and prospective, and, in determining this question, you may consider how his earning capacity has been affected by the injui-y complained of.”
To this ruling of the court the defendant excepted in substantially the following language:
[484]*484. “The defendant excepts to that part of the charge which allows the jurors to assess damages for the loss of earning capacity of the minor during his minority.”
Whereupon the court said:
“My attention has been called to the question of loss of services, and I wish to say to you, gentlemen, that it makes no difference to whom the money is to be paid. The plaintiff is entitled to recover, if you shall find that he is entitled to recover for loss of services, irrespective of the question as to .who gets the money. The law will take care of that.”
To this ruling of the court the defendant seasonably excepted.
From the foregoing statement it appears that the court below instructed the jury in effect that, if they found the defendant liable, they .might assess damages for loss of the plaintiff’s earning capacity during his minority, and that the jury rendered a verdict accordingly.
Until emancipation or waiver the father had an independent cause of action against the defendant for loss of his son’s services during minority. Unless, therefore, such emancipation or waiver 'is shown to have taken place upon the record before us, the instructions of the court below were too broad, and the verdict must be set aside.
The record shows that, previous to the commencement of the present suit, the father had not emancipated his son nor in any way waived his right to his son’s services. The only evidence having any bearing on this question was, in substance, that the father told the defendant on two occasions that his son might work for him during his vacation. The record also shows that there was no waiver by the father of his claim for loss of services- until after verdict. In fact, there is nothing in the record which indicates that any question of waiver was raised during the trial of the case, or was in any manner brought to the attention of the court or counsel. The record also shows that there was no allegation in the declaration for damages arising from loss of earnings during minority, and, further, that no claim was made in behalf of the son for loss of such earnings before or during the trial of the case. So far as appears from the record, the first time any such claim on the part of the son was ever suggested wa-s during the charge, when the court instructed the jury that they might assess damages for loss of the son’s services “past and prospective.” Nor does the record show that the case was tried on the theory that the son was entitled' to recover for loss of earnings during his minority, and that this was done with the father’s consent and assistance.
The only circumstances set forth in the record previous to the verdict which have any bearing on the question of the father’s waiver are the following: The suit was brought by the father as next friend. He was present in-court prosecuting the case in his son’s behalf, and testified about two interviews with the defendant in which he told him that if his son wanted to work for him during his vacation he had no objection.
It is manifest that these circumstances, of themselves, are entirely immaterial on the question of the father’s waiver or even consent, since they are perfectly consistent with the assumption that the father never intended to relinquish his claim. These circumstances must be [485]*485supplemented by something else in the record to entitle them to any weight in the determination of this question. If, for example, the declaration had contained an allegation of damages for loss of earnings during minority, or if the son before or during the trial had claimed the right to recover for loss of these earnings, or if it appeared in any way that the trial of the case had proceeded on this theory, then the circumstances that the suit was brought by the father as next friend, and that he appeared in court and actively assisted in maintaining the son’s claim, might have a material bearing on this question.
It further appears from the record that, after the verdict and after the bill of exceptions was filed, but before it was allowed, the father, by leave, of court, filed a formal waiver and release to the defendant of any claim for loss of his son’s services during minority, to which the defendant objected and excepted; and that, two months after the bill of exceptions was allowed, the plaintiff filed the following paper, styled a “Remittitur”:
“Now comes Frank W. Wheeler, who brings this action as the father and next friend of his son, Harry B. Wheeler, and for the purpose of avoiding a new trial, hereby offers to waive any claim for damages based upon loss of time, services, or earning capacity of his son, Harry B. Wheeler, and offers to release un'der seal to the defendant, Charles D. Farrar, any and all claims for damages for loss of time, services, or earning capacity, during the minority of said son, which I may have in my own right as father of the said Harry B. Wheeler, and a release for such claims, duly executed, under seal, ,by the said Frank W. Wheeler, is now in the possession of said plaintiff’s counsel of record in this case as an escrow, to be delivered to said defendant, Charles D. Farrar, in case the judgment in this action in favor of the plaintiff is affirmed.”
A reading of this paper shows that the question of release, as it is finally left in the record, is simply an offer by the father to release, provided the judgment below is affirmed. But after verdict neither the father’s release nor offer of release can deprive the defendant of his substantial legal right under his exceptions. As the case stands upon the record, the father’s claim or right of action for loss of the son’s services during minority, never having been waived, is still outstanding, and with respect thereto the defendant is entitled to his day in court and the opportunity of defense. The defendant might or might not have insisted upon his legal rights under his exceptions. He might have chosen to waive them, and to accept the verdict with the release tendered, and so end the controversy; but since he has not done this, and has elected to have the controversy settled in two suits rather than in one, it is not within the province of the court to deprive him of this right nor to question his judgment.
' In no adjudicated case which has been called to 'our attention has it - been held that a minor was entitled to recover for loss of earnings during his minority upon the state of facts presented in the record before us.
In Judd v. Ballard, 66 Vt. 668, 30 Atl.
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COLT, Circuit Judge.
This was an action to recover for personal injuries, brought by a minor through his father as next friend, in which the jury returned a general verdict in favor of the plaintiff, assessing damages in the sum of $5,000. The assignments of error relate to the rulings of the court below on the assessment of damages. In the instructions to the jury upon this point the court said:
“You may, in determining the damages to be awarded the plaintiff in this ease, provided yon shall find that he is entitled to recover, consider the question of loss of services; Unit is, the plaintiff is entitled to recover, if you shrill find from the evidence that the plaintiff is entitled to recover anything, for loss of his services, past and prospective, and, in determining this question, you may consider how his earning capacity has been affected by the injui-y complained of.”
To this ruling of the court the defendant excepted in substantially the following language:
[484]*484. “The defendant excepts to that part of the charge which allows the jurors to assess damages for the loss of earning capacity of the minor during his minority.”
Whereupon the court said:
“My attention has been called to the question of loss of services, and I wish to say to you, gentlemen, that it makes no difference to whom the money is to be paid. The plaintiff is entitled to recover, if you shall find that he is entitled to recover for loss of services, irrespective of the question as to .who gets the money. The law will take care of that.”
To this ruling of the court the defendant seasonably excepted.
From the foregoing statement it appears that the court below instructed the jury in effect that, if they found the defendant liable, they .might assess damages for loss of the plaintiff’s earning capacity during his minority, and that the jury rendered a verdict accordingly.
Until emancipation or waiver the father had an independent cause of action against the defendant for loss of his son’s services during minority. Unless, therefore, such emancipation or waiver 'is shown to have taken place upon the record before us, the instructions of the court below were too broad, and the verdict must be set aside.
The record shows that, previous to the commencement of the present suit, the father had not emancipated his son nor in any way waived his right to his son’s services. The only evidence having any bearing on this question was, in substance, that the father told the defendant on two occasions that his son might work for him during his vacation. The record also shows that there was no waiver by the father of his claim for loss of services- until after verdict. In fact, there is nothing in the record which indicates that any question of waiver was raised during the trial of the case, or was in any manner brought to the attention of the court or counsel. The record also shows that there was no allegation in the declaration for damages arising from loss of earnings during minority, and, further, that no claim was made in behalf of the son for loss of such earnings before or during the trial of the case. So far as appears from the record, the first time any such claim on the part of the son was ever suggested wa-s during the charge, when the court instructed the jury that they might assess damages for loss of the son’s services “past and prospective.” Nor does the record show that the case was tried on the theory that the son was entitled' to recover for loss of earnings during his minority, and that this was done with the father’s consent and assistance.
The only circumstances set forth in the record previous to the verdict which have any bearing on the question of the father’s waiver are the following: The suit was brought by the father as next friend. He was present in-court prosecuting the case in his son’s behalf, and testified about two interviews with the defendant in which he told him that if his son wanted to work for him during his vacation he had no objection.
It is manifest that these circumstances, of themselves, are entirely immaterial on the question of the father’s waiver or even consent, since they are perfectly consistent with the assumption that the father never intended to relinquish his claim. These circumstances must be [485]*485supplemented by something else in the record to entitle them to any weight in the determination of this question. If, for example, the declaration had contained an allegation of damages for loss of earnings during minority, or if the son before or during the trial had claimed the right to recover for loss of these earnings, or if it appeared in any way that the trial of the case had proceeded on this theory, then the circumstances that the suit was brought by the father as next friend, and that he appeared in court and actively assisted in maintaining the son’s claim, might have a material bearing on this question.
It further appears from the record that, after the verdict and after the bill of exceptions was filed, but before it was allowed, the father, by leave, of court, filed a formal waiver and release to the defendant of any claim for loss of his son’s services during minority, to which the defendant objected and excepted; and that, two months after the bill of exceptions was allowed, the plaintiff filed the following paper, styled a “Remittitur”:
“Now comes Frank W. Wheeler, who brings this action as the father and next friend of his son, Harry B. Wheeler, and for the purpose of avoiding a new trial, hereby offers to waive any claim for damages based upon loss of time, services, or earning capacity of his son, Harry B. Wheeler, and offers to release un'der seal to the defendant, Charles D. Farrar, any and all claims for damages for loss of time, services, or earning capacity, during the minority of said son, which I may have in my own right as father of the said Harry B. Wheeler, and a release for such claims, duly executed, under seal, ,by the said Frank W. Wheeler, is now in the possession of said plaintiff’s counsel of record in this case as an escrow, to be delivered to said defendant, Charles D. Farrar, in case the judgment in this action in favor of the plaintiff is affirmed.”
A reading of this paper shows that the question of release, as it is finally left in the record, is simply an offer by the father to release, provided the judgment below is affirmed. But after verdict neither the father’s release nor offer of release can deprive the defendant of his substantial legal right under his exceptions. As the case stands upon the record, the father’s claim or right of action for loss of the son’s services during minority, never having been waived, is still outstanding, and with respect thereto the defendant is entitled to his day in court and the opportunity of defense. The defendant might or might not have insisted upon his legal rights under his exceptions. He might have chosen to waive them, and to accept the verdict with the release tendered, and so end the controversy; but since he has not done this, and has elected to have the controversy settled in two suits rather than in one, it is not within the province of the court to deprive him of this right nor to question his judgment.
' In no adjudicated case which has been called to 'our attention has it - been held that a minor was entitled to recover for loss of earnings during his minority upon the state of facts presented in the record before us.
In Judd v. Ballard, 66 Vt. 668, 30 Atl. 96, the father at the trial testified that he had given his son his time between the injury complained of and his coming of age, and it was held by a divided court that a parent might waive his claim for loss of his minor son’s time after the commencement of the suit.
[486]*486Again, in some states, where the complaint seeks to recover the entire damages for loss of the minor’s time, and it is brought by the parent as next friend, and the parent prosecutes the case in the minor’s behalf and testifies therein, it has been held that these acts amount to a relinquishment of the parent’s cause of action. Abeles v. Bransfield, 19 Kan. 16; Chesapeake & Ohio Railway Company v. Davis (Ky.) 58 S. W. 698. These cases, however, as we have already pointed out, are clearly distinguished from the case at bar.
Since the exceptions in the present case are confined to the rulings of the court on the question of damages, the case should go back for a new trial on that question alone.
The judgment of the Circuit Court is reversed, the verdict is set aside, the case is remanded to that court for further proceedings not inconsistent with this opinion, and the plaintiff in error recovers his costs of appeal.