Vale Royal Manufacturing Co. v. Bradley

70 S.E. 36, 8 Ga. App. 483, 1911 Ga. App. LEXIS 4

• Court: Court of Appeals of Georgia
• Decided: January 17, 1911
• Docket: 2621
• Status: Published

Opinion

Hill, C. J.

(After stating the foregoing facts.)

1. . It is manifest, we think, from a review of the facts set out in the record, that the motion in arrest of judgment is without merit.' The foregoing statement of facts, verified by the bill of exceptions, shows plainly that the Hilton & Dodge Lumber Company was completely eliminated from the case, and that its attempted reappearance, after the verdict and judgment rendered, not against it, but against the other defendant, is not for the purpose of correcting any error committed against it, or any injury suffered by it, but simply for the extremely technical purpose of extricating the real defendant from the result which necessarily followed the solemn admission in judicio of that defendant. Certainly the Hilton & Dodge Lumber Company can not complain to this court, when the recitals of its bill of exceptions conclusively show that it won its case in the court below by its codefendant’s admission of liability, if liability was incurred, and the statement of counsel for the plaintiff that the case was dismissed as to the Hilton & Dodge Lumber Company. The ease was dismissed by the plaintiff as to the Hilton & Dodge Lumber Company in open court, and no order was necessary to make the dismissal, acted on by all parties, effective. No verdict was asked against it, and, in so far as the writ of error sued out by the Hilton & Dodge Lumber Company is concerned, it presents to this court merely a moot question, without the slightest juridical controversy. The Yale Royal Manufacturing Company has no right, juridically or otherwise, to complain that no verdict and judgment were rendered against the Hilton & D.odge Lumber Company, in view of its solemn admission in judicio that •there was no liability in any event as against that company, for the reason that the plaintiff was an employee solely of it and not of the Hilton & Dodge Lumber Company, and that if there was any liability arising from the injuries received by the plaintiff, the liability was against it alone. In view of the admission made by the Vale Royal Manufacturing Company of its exclusive liability if there was any liability against any one, and of not only its failure to object to the dismissal of the Hilton & Dodge Lumber Company as a joint defendant in the suit, but its' active share in bringing about such dismissal, the claim now made in argument before this court, that the failure to find a verdict against the Hilton & Dodge Lumber Company deprived it of the right of contribution, would seem to be based upon a foundation so fragile as to be invisible to the most astute legal or judicial view. The court below very properly dismissed the.motion for a new trial, made by the Hilton & Dodge Lumber Company, and in view of the facts which we have above recited, this court grants the motion to dismiss the writ of error filed by that company.

2. Plaintiffs in error next insist that as, .under the form of the petition, Henry Bradley, and not Henry Bradley Jr., was the plaintiff in the case, and as the allegations of the petition show that the injury was to Henry Bradley Jr., no recovery could be baséd upon the petition, and that the motion in arrest should have been allowed for that reason. In other words, it is contended that Henry Bradley Jr. is not a party to the cause, that Henry Bradley is the only party plaintiff, and that Henry Bradley sets out no cause of action. This contention is based principally upon the commencement of the suit, which is in the following language: “The petition of Henry Bradley, who sues for the use of his son, Henry Bradley Jr., shows,” etc., and the conclusion of the suit, which is as follows: “Your petitioner alleges that by reason of said negligence of said defendant corporations, in causing said injuries, he has been damaged in the sum of $10,000, for which amount -he seeks judgment.” The allegations of the petition, between the beginning and the conclusion thereof, show very clearly two things, — first, that the suit is not by Henry Bradley, to recover for any damages inflicted upon him, or to recover for any loss of services caused by the injuries to his minor son;, and secondly, that the suit, in substance, is to recover damages in behalf of and for the benefit of his minor son, arising out of injuries inflicted upon the son by the negligence ,of the defendants. The petition is not drawn with technical accuracy. The technical form of pleading in said case'would have been for the minor to bring suit by his father as next friend. But discarding the mere technical form and looking to the real substance of the suit, it is manifest that the suit is one brought by the minor through his father as next friend. In the language of Mr. Chief Justice Bleckle3r, in the case of Lasseter v. Simpson, 78 Ga. 61 (3 S. E. 243), “thé more regular form of pleading is for the minor to sue by the next friend, but if the next friend sue as next 'friend of the minor, it is the same thing in substance.” This opinion of the Chief Justice, speaking for the court, has frequently been approved in subsequent decisions. See Van Pelt v. Railroad Co., 89 Ga. 706 (15 S. E. 622); Ellington v. Beaver Dam Co., 93 Ga. 55 (19 S. E. 21); Walden v. Walden, 128 Ga. 132 (57 S. E. 323). But if there was any doubt for whose benefit the suit was brought, this doubt should have been resolved by the demands of a special demurrer. Its form should have been made regular and technical, in response to the demands of this “critic” of pleading.

The general demurrer, objecting to the substance of the petition, wás vei’y properly overruled, and, in -the absence of a special demurrer as to the form, any defective or imperfect description as to who was the real party plaintiff was cured by the verdict. The petition was amendable by adding that it was brought by Henry Bradley Jr., by Henry Bradley, next friend. Civil Code of 1895, § 4947; Royal v. Grant, 5 Ga. App. 644 (63 S. E. 708). Eor this additional reason, the court did not err in overruling the motion in arrest of judgment; for such a motion can never reach an amendable-or curable defect. Civil Code of 1895, § 5362; Chapman v. Taliaferro, 1 Ga. App. 235 (58 S. E. 128) ; Davis v. Bray, 119 Ga. 220 (46 S. E. 90); Leffler v. Union Compress Co.) 121 Ga. 40 (48 S. E. 710). But as we have-above shown, considering-all the allegations of the petition, there was no room for doubt as to who was the real plaintiff in the case, or that the legal effect of the suit, as illustrated by the allegations of the petition, made it the suit of Henry Bradley Jr. by his next friend, Henry Bradley. See also, in this connection, King v. King, 37 Ga. 217. The paramount reason for requiring exactness in pleading is to protect the defendant from a subsequent suit as to the same subject-matter, and the real test is, are the allegations of the petition' sufficient to furnish such protection to the defendant? Under the allegations of the petition in this case, is there any room to doubt that the defendant, the Vale Royal Manufacturing Company, would be protected from any subsequent suit as to the subject-matter of this suit, brought either by the father, Henry Bradley, or by the son, Henry Bradley Jr. ? Would not a verdict and judgment, in the light of the allegations of the petition, be an absolute protection to the defendant against any subsequent suit involving the injuries complained of? The cases cited by learned counsel for plaintiffs in error to the effect that in an action in tort there can not be an usee, and that if one is named, it is surplusage, and his rights will be disregarded, and that the action will necessarily fail unless the rights of the nominal plaintiff be proved, are not applicable, in our judgment, to cases where suits are brought in behalf of minors, or persons who are not sui juris.

3. Another error which is insisted on very earnestly by learned counsel for plaintiffs in error, and which is covered by several of the grounds in the amended motion for a new trial, is that the court in effect instructed the jury that the plaintiff, Henry Bradley Jr., would, be entitled to recover damages during his minority. It is insisted that the evidence did not show manumission on the part of-the father, and that manumission must be shown, in order to warrant a recovery by a minor plaintiff for any diminution of his earning capacity caused by the injury between the date of the injury and his majority. In the petition the injured minor claimed compensation for his diminished earning capacity during his minority, and the defendant made no objection to this claim. Nor does it appear that any request was made of the court to charge on this subject. In the absence of'any issue made by the pleadings, or of any request to charge on the subject, we have to determine whether or not the evidence in the case was of such .character as to have required a charge on this subject. It has been held by the Supreme Court that a minor must show, in order to justify a recovery in the interim between the time of his injury and his majority, that his earnings, if he had not been incapacitated, would have belonged to himself and not to his father. Atlanta & West Point R. Co. v. Smith, 94 Ga. 107 (20 S. E. 763). As illustrating this question, the record shows that the plaintiff testified that his father lived in South Carolina, and that the money he made for his work in Georgia he used for his living expenses. The allegations of the suit itself would seem to be an admission on the part of the father in this particular case that the son was entitled to his earnings during his minority; for he brings the suit to recover these earnings for the use and benefit of this son. This admission of the father, followed by the undisputed evidence of the son that his father had permitted him to leave his home in South Carolina and come to Georgia and work for himself and use his earnings for his living expenses, would be sufficient, prima facie at least, to show that the father had surrendered any right he had to the earnings of his son during this period. While the consent of the father that the minor child may apply his earnings to his living expenses may not be sufficient to show complete manumission, yet we think it would be -sufficient to show such manumission as to those earnings as would entitle the child to recover on this account. Royal v. Grant, supra. “That a father may emancipate a minor child by allowing him to receive the proceeds of his labor is settled by our code and by decisions of this court. Allowing the child to receive the proceeds of his own labor amounts to ap emancipation.” Hargrove v. Turner, 112 Ga. 135 (37 S. E. 89, 81 Am. St. E. 24); Wilson v. McMillan, 62 Ga. 17 (35 Am. E. 115); Civil Code of 1895, § 2502. We seriously doubt if, under the facts proved in this ease, the father could have sued in his own behalf to recover the value of his son's services up to his majority. Harris v. Johnson, 98 Ga. 437 (25 S. E. 525). We therefore conclude that in the absence of any issue made by the pleadings on this subject, or of any request to charge, in view of the evidence to which we have referred, the court did not err in failing to charge to the effect that the plaintiff must show his manumission, in order to recover for a diminution in his earning capacity between the date of his injury and his majority.

There are numerous other grounds in the amended motion for a new trial. We have considered all of them carefully, and our conclusion is that the judge fully, fairly, and correctly instructed the jury on the law applicable to the issues made by the pleadings and evidence, and we find no material or prejudicial error. There is some evidence to support the verdict, and no reason appears for the grant of another trial. ' Judgment affirmed.