ure of damages. The court allowed the jury to allow a fair compensation for the pain and suffering endured by appellee, and for the impairment of his ability to earn money by reason of the injury. Appellants insist that this should have been limited to his impairment to earn money after his arrival at 21 years of age, on the ground that his parents were entitled to his services until his majority, and entitled to recover for any loss of his capacity to earn money. His mother was a widow. Her right to his services until he was 21 she could release. She could assign to him any cause of action she had by reason of his injury, or she might release her right to his services during minority or emancipate him. This she might do by parol, and it might be implied from circumstances, and thus the entire cause of action for the injury might have been vested in him. The mother as guardian of her son, and in his name, brought this suit, seeking to recover for the entire injury. She testified on the trial, and, by herself and counsel employed by her, has obtained a verdict for the entire matter. She could not, if she would, now maintain a separate action against appellants or either of them, but is estopped to say the compensation for the entire injury was not properly adjudged to appellee. She had a right to forego her rights in favor of her maimed and helpless child, and, having by her acts vested them in him, appellants cannot complain. In Abeles v. Bransfield, 19 Kan. 16, the action was brought in the name of the infant by his mother, as next friend, for a personal injury to him, and a recovery had, just as in this case. It was contended on appeal that for the infant's loss of time the right of action was in the mother, and that the recovery by him was unauthorized. The court sustained the judgment, holding that the mother had thus given her claim to her son. It said: "A parent ought to have such power. By allowing the child to recover for loss of time and expenses, it avoids the necessity for two suits. If no such power exists, then the parent must sue for the loss of time and expenses, and the child must sue for the injury, the pain, suffering, etc. This would require two suits where one ought to be sufficient. The law ought to be such that both actions might be united into one. It would save a great deal of trouble and experse. And no insuperable objection can be urged against such a union, that we are aware of. Primarily, we suppose that the right to compensation for loss of time and expenses belongs to the child. It is a part of his capital, with which to proeure his maintenance, support, and education. But as the parent, as his guardian or trustee, is responsible for all these, the parent, as such guardian or trustee, is allowed, in his or her own name, to recover such compensation. This is a privilege to the parent. But the parent may, as we think, waive this privilege, and allow the child to recover in his own name. And where the parent commences the action for such compensation in the name of the child, and as next friend of the child. as Mrs. Bransfield did in this case, we think it must be conclusively presumed that the parent waives the privilege to sue for the same in his or her own name, and gives the same to his or her child, or per haps, more properly speaking, it gives to the child the power to recover and use what really belongs to the child." In Baker v. Railroad Co., 91 Mich. 298, 51 N. W. 897, 16 L. R. A. 154, the same rule was followed. In that case there had been a recovery. as here, in the name of the infant, suing by his father as next friend, and after this the father prosecuted a second suit in his own name for his loss of the infant's services. It was held that he could not recover. The court said: "It appears that the plaintiff in this case, as next friend of his son, Oscar, took part in the trial of the former case, and insisted upon a recovery by his son for the very damages-that is, the value of the loss of Oscar's services-which he now seeks to recover in the present case. It is undoubtedly true that, as a matter of law, Oscar had no right in his suit to recover such damages without the consent of his father. But he did recover with the consent of his father. Therefore the father is now estopped from setting up claim for the same damages in this action in his own name. It is true that the earnings of a minor son belong to the father, unless the father has given him his time and earnings, but the father cannot recover such earnings when he has emanicipated him. Schoenberg v. Voigt, 36 Mich. 310; Allen v. Allen, 60 Mich. 635, 27 N. W. 702; Bell v. Bumpus, 63 Mich. 375, 29 N. W. 862. If the case here had been for the earnings of the minor son, and it appeared that in a former action by the son, the father acting as his next friend, he had recovered the value of his wages with the consent of the father, that fact would be held tantamount to manumission of the infant, so far as that suit was concerned, and the father would be estopped from recovery of the same wages. There can be no distinction between such a case and the present, and the fact that the father appeared and prosecuted as next friend was tantamount to a relinquishment of such loss of services." We have found no contrary authorities. The rule above announced seems to us sound and just. Judgment affirmed. UTTERBACK v. COMMONWEALTH. (Court of Appeals of Kentucky. Dec. 18, 1900.) "Not to be officially reported." Dissenting opinion. For majority opinion, see 59 S. W. 515. PAYNTER, J. Assuming that the court erred in permitting Thomas Scott to contra we are of opinion that the Maloneys cannot be relieved from their personal liability to appellant for the money borrowed, and under such circumstances it is not to the interest of the Maloneys to have the contract of sale canceled between them and Mrs. Lickert. If we should adjudge that the deed from Mrs. Lickert to the Maloneys should be canceled, it would be, in our opinion, prejudicial to the rights of the Maloneys, as their personal liability would exist, and the property would be subject to the payment of the amount due the appellant. It follows from these views that the Maloneys should be adjudged to pay the amount borrowed from the appellant, less the $50 paid on stock, and the $15 expense item, and the sum which they subsequently paid to the appellant on stock, and to satisfy which it is entitled to a sale of the property, subject to the widow's homestead. Unless the homestead right of Mrs. Reitchauer is released, Mrs. Lickert should not be allowed to enforce her small claim for part of the purchase money. The judgment is reversed for proceedings consistent with this opinion. CHESAPEAKE & O. RY. CO. et al. v. DAVIS.1 (Court of Appeals of Kentucky. Oct. 23, 1900.) RAILROADS - JOINT LIABILITY FOR NEGLIGENT OPERATION OF TRAIN EXCESSIVE VERDICT-INFANTS - PARENT'S WAIVER OF RIGHT TO RECOVER FOR SERVICES. 1. Where the track on which a train was operated belonged to one company, and the engine to another, and the evidence, as a whole, warranted the conclusion that the train was operated by the two companies jointly, they were jointly liable for an injury resulting from the negligent operation of the train. 2. The jury was authorized to infer negligence from the fact the train was run through a populous city with a piece of iron swinging in and out of the door of one of the cars. 3. A verdict for $10,000 for severe personal injuries received by a boy 9 years old is not excessive. 4. In an action by a widow, as guardian of her infant son, and in his name, to recover damages for personal injuries received by him, it was not error to permit a recovery for the impairment of the boy's ability to earn money while still an infant, as the mother, by bringing the action and testifying therein, in effect transferred to her son any cause of action she had by reason of his injury. "Not to be officially reported." Modified opinion. For former report, see 58 S. W. 698. HOBSON, J. Appellee, a little boy 9 years old, by his mother and guardian filed this suit to recover of appellants for personal injuries sustained by him. The facts of the case, as shown by the testimony for appellee, which the jury by their verdict found, in effect, to be true, are as follows: Appellee was sent by his mother to get for her two loaves of bread and a can of tomatoes. He bought these, and on his way home had to Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter. | cross the railroad track. While waiting at the crossing, or near it, for a train to pass, he was standing about 22 or 3 feet from the train, looking in the direction in which it was going. He thus had his back to the rear of the train, and was caught by a crooked piece of iron projecting from one of the cars by reason of the door being improperly secured, and carried along by the train, being unable for a time to loose the iron from his neck. When he at length got it loose he fell to the ground, and one of his feet, getting thus under the wheels, was run over, rendering amputation necessary. Appellants contend. ed that appellee jumped on the car to get a ride, and got his foot under the wheel in jumping off. The court, by apt instructions, submitted to the jury whether the injury was caused in this way, and whether appellee was guilty of contributory neglect in standing near the moving train, with his back towards the cars that were approaching and passing him; and, while the evidence would have sustained a verdict for the appellants, we cannot say the verdict for appellee is so against the evidence as to warrant us in setting it aside. The constitution guaranties a jury trial in this class of cases. The reason of the rule is that the common judgment of 12 men of the average of the community, with their varied experiences, is more to be trusted, on such questions of fact, than the conclusion of a single judge, however learned. The jury hear and see the witnesses, and have much better opportunity to detect falsehood than we can have from a transcript of the evidence given before them, and it is only where their verdict is palpably against the evidence that this court will disturb it. The evidence of appellee has not only the inherent odor of sincerity, but is supported by two other little boys, also eyewitnesses, and by the bruise on his neck, seen soon after he fell, and not otherwise accounted for, as well as by the loaves of bread and the can of tomatoes dropped along the track. The court properly refused the motion of either appellant for a peremptory instruction. The track belonged to one, and the engine to the other; and the evidence, on the whole, warranted the conclusion that the train was operated by them jointly. To run a train through a populous city, with an iron swinging in ard out, as this was shown to be, was necessarily to endanger those on the highway along which it passed, and was evidence from which the jury might properly infer negligence. Graney v. Railway Co. (Mo. Sup.) 41 S. W. 246, 38 L. R. A. 633; Shear. & R. Neg. §§ 457, 458, and notes. The verdict is large ($10,000), but not larger than some which have been sustained by this court for like injuries. Railroad Co. v. Moore, 83 Ky. 675; Same v. Mitchell, 87 Ky. 327, 8 S. W. 706. There was no substantial error in the admission of evidence. The only instruction necessary to be noticed relates to the meas ure of damages. The court allowed the jury to allow a fair compensation for the pain and suffering endured by appellee, and for the impairment of his ability to earn money by reason of the injury. Appellants insist that this should have been limited to his impairment to earn money after his arrival at 21 years of age, on the ground that his parents were entitled to his services until his majority, and entitled to recover for any loss of his capacity to earn money. His mother was a widow. Her right to his services until he was 21 she could release. She could assign to him any cause of action she had by reason of his injury, or she might release her right to his services during minority or emancipate him. This she might do by parol, and it might be implied from circumstances, and thus the entire cause of action for the injury might have been vested in him. The mother as guardian of her son, and in his name, brought this suit, seeking to recover for the entire injury. She testified on the trial, and, by herself and counsel employed by her, has obtained a verdict for the entire matter. She could not, if she would, now maintain a separate action against appellants or either of them, but is estopped to say the compensation for the entire injury was not properly adjudged to appellee. She had a right to forego her rights in favor of her maimed and helpless child, and, having by her acts vested them in him, appellants cannot complain. In Abeles v. Bransfield, 19 Kan. 16, the action was brought in the name of the infant by his mother, as next friend, for a personal injury to him, and a recovery had, just as in this case. It was contended on appeal that for the infant's loss of time the right of action was in the mother, and that the recovery by him was unauthorized. The court sustained the judgment, holding that the mother had thus given her claim to her son. It said: "A parent ought to have such power. By allowing the child to recover for loss of time and expenses, it avoids the necessity for two suits. If no such power exists, then the parent must sue for the loss of time and expenses, and the child must sue for the injury, the pain, suffering, etc. This would require two suits where one ought to be sufficient. The law ought to be such that both actions might be united into one. It would save a great deal of trouble and experse. And no insuperable objection can be urged against such a union, that we are aware of. Primarily, we suppose that the right to compensation for loss of time and expenses belongs to the child. It is a part of his capital, with which to proeure his maintenance, support, and education. But as the parent, as his guardian or trustee, is responsible for all these, the parent, as such guardian or trustee, is allowed, in his or her own name, to recover such compensation. This is a privilege to the parent. But the parent may, as we think, waive this privilege, and allow the child to recover in his own name. And where the parent commences the action for such compensation in the name of the child, and as next friend of the child, as Mrs. Bransfield did in this case, we think it must be conclusively presumed that the parent waives the privilege to sue for the same in his or her own name, and gives the same to his or her child, or per haps, more properly speaking, it gives to the child the power to recover and use what really belongs to the child." In Baker v. Railroad Co., 91 Mich. 298, 51 N. W. 897, 16 L. R. A. 154, the same rule was followed. In that case there had been a recovery. as here, in the name of the infant, suing by his father as next friend, and after this the father prosecuted a second suit in his own name for his loss of the infant's services. It was held that he could not recover. The court said: "It appears that the plaintiff in this case, as next friend of his son, Oscar, took part in the trial of the former case, and insisted upon a recovery by his son for the very damages-that is, the value of the loss of Oscar's services-which he now seeks to recover in the present case. It is undoubtedly true that, as a matter of law, Oscar had no right in his suit to recover such damages without the consent of his father. But he did recover with the consent of his father. Therefore the father is now estopped from setting up claim for the same damages in this action in his own name. It is true that the earnings of a minor son belong to the father, unless the father has given him his time and earnings, but the father cannot recover such earnings when he has emanicipated him. Schoenberg v. Voigt, 36 Mich. 310; Allen v. Allen, 60 Mich. 635, 27 N. W. 702; Bell v. Bumpus, 63 Mich. 375, 29 N. W. 862. If the case here had been for the earnings of the minor son, and it appeared that in a former action by the son, the father acting as his next friend, he had recovered the value of his wages with the consent of the father, that fact would be held tantamount to manumission of the infant, so far as that suit was concerned, and the father would be estopped from recovery of the same wages. There can be no distinction between such a case and the present, and the fact that the father appeared and prosecuted as next friend was tantamount to a relinquishment of such loss of services." We have found no contrary authorities. The rule above announced seems to us sound and just. Judgment affirmed. UTTERBACK v. COMMONWEALTH. (Court of Appeals of Kentucky. Dec. 18, 1900.) "Not to be officially reported.” Dissenting opinion. For majority opinion, see 59 S. W. 515. PAYNTER, J. Assuming that the court erred in permitting Thomas Scott to contra dict young Utterback in the manner stated by the court, still, in my opinion, the case should not be reversed for that reason. The defendant sought to be acquitted on the grounds of self-defense. The language imputed to the father does not indicate that he was guilty of any act in violation of law, or that he did any act inconsistent with his claim of self-defense, or that he desired to violate the law. His claim is that the deceased was the aggressor, and thus imperiled his life, rendering it necessary for him to slay him. That act certainly would comprehend the lesser, which would include on the part of deceased an effort to "run over" him. The declaration of young Utterback was not inconsistent with his testimony as to what occurred at the time deceased was slain. If the father had made the statement to which Scott testified, it was not inconsistent with his defense. In my opinion, the court should give some meaning to the provision of the Criminal Code which only authorizes it to reverse a case where the substantial rights of the accused have been prejudiced. For the foregoing reasons, I dissent from the opinion of the court. Where plaintiff, having charge of the person of her lunatic sister, with the consent of her husband, the committee, erected an addition to her dwelling house, at an expense of $6,000, for the comfort and convenience of the lunatic, being advised that it was essential to the security and safety of her sister that this be done at once, without waiting for the action of the chancellor, she is entitled to be reimbursed out of the income of the lunatic's estate, though the estate is held in trust for the lunatic for life by her brother under a deed executed to him by their father, giving him authority to control the trust fund as he deems best for the estate, looking to the comfort and convenience of his sister, and forbidding any encroachment on the principal unless imperious necessity renders it proper; but it is proper, if there has been any permanent improvement of plaintiff's property, to charge her therewith. Du Relle, Burnam, and Hobson, JJ., dissenting. Appeal from circuit court, Boyle county. "Not to be officially reported." Action by Mary C. Cantrill against Granville Cecil, trustee of Sarah Cecil, and others, to subject the estate of the cestui que trust to the payment of certain expenditures made by plaintiff for her. Judgment for defendants, and plaintiff appeals. Reversed. W. S. Pryor, W. G. Welch, and C. R. McDowell, for appellant. Jos. H. Lewis, John W. Yerkes, and Yerkes & Bagley, for appellees. 1 Reported by Edward W. Hines, Esq., of the Frankfort bar, and formerly state reporter. HAZELRIGG, C. J. From the petition of the appellant, to which a general demurrer was sustained, and of which she complains on this appeal, the following facts appear: In 1877, and again in 1880, James G. Cecil, father of the appellant, conveyed to his son, the appellee Granville Cecil, in trust for Sarah Cecil, a daughter of the grantor, an estate which, together with other funds subsequently inherited by Sarah from a deceased sister, amounted to $93,000 at the date when the petition was filed. In May, 1896, Sarah Cecil was by the Boyle circuit court adjudged a lunatic, and in 1897 James E. Cantrill, the husband of appellant, was appointed here committee. The petition then continues thus: "The condition of mind of said defendant Sarah Cecil has been such for many years past as to render her unfit and incompetent to manage her estate. She has been confined in public and private institutions for the insane, and has had that care and attention that such institutions could afford. The plaintiff is advised that with the estate and income of her said sister she can be made more comfortable and secure when under the control of those who are bound to her by ties of affection; and, while she has to be confined to her rooms, it should be done in such manner as will most conduce to her pleasure and happiness; that she is now in such a condition physically and mentally as requires that careful attention and kindness that a sister alone would be willing to bestow. The defendant Sarah has been removed to the residence of the plaintiff, and, to alleviate her condition, the plaintiff has erected an addition to the main dwelling at a cost of not less than $6,000, where all the conveniences of home life are had, and the defendant made to believe that she is mistress of her own household. The plaintiff was advised that it was not only expedient, but essential, at once to take such a step for the welfare and security of the person of her sister, and for other reasons the proof will disclose, and that without waiting action of the chancellor. Plaintiff avers that the addition to the house adds nothing to its value or the value of the lot, and, looking only to the happiness of her sister, and the necessity of having her under her eye, made the expenditure at the risk of its being sanctioned by the chancellor. As herein before stated, the trust estate of the defendant Sarah is now exceeding the sum of $93,000, of which the sum of dollars represents accretions from profits over and above expenditures. By the terms of the trust, the plaintiff, the defendants Granville Cecil, Chas. P. Cecil, and the children of W. B. Cecil, to wit, * *, I will be entitled to the estate left by defendant Sarah, and plaintiff is advised there is no rule of law or equity that will preclude the chancellor from applying the principal or accumulations of the estate to that which must contribute to the happiness and pleasure of their unfortunate sister and aunt, and particularly when such expenditure was and is essential and necessary, not only to the comfort, but the security of the defendant Sarah. Plaintiff also avers that this expenditure would lessen the cost of keeping the unfortunate to such an extent as that in a few years it would be regarded as economical, instead of extravagant. The plaintiff asks to be allowed to take proof upon the facts alleged, which the plaintiff avers will show the necessity of having the care of one whose devotion to her sister will be a guaranty of kind treatment so long as the unfortunate condition of her mind continues. Plaintiff asks that she be allowed the said expenditures out of either the principal or accumulation profits of the estate of the defendant Sarah already in the hands of the trustee, and, if not, that the income hereafter be applied that way. The plaintiff further states that her husband, who is the committee (as already stated) of her sister, Sarah, declined to unite as plaintiff in the petition on account of the relation he bears to this plaintiff (that of husband), and the relation he bears (that of committee) to her sister. She, however, states that the committee, and all others who are now acquainted with the condition of her sister, by actual observance, must know that the effort made to provide for her welfare is essential, and that the expenditure will reduce the burden on the estate for her support, instead of increasing it. She says that to make the improvements on any other ground, or away from her home, would prevent her from giving to her sister the care she requires," etc. It further appears from the deed of trust, which is made a part of the petition, that the estate of Sarah is held in trust by the appellee Granville Cecil for Sarah during her natural life, and then to her children who may survive her, and, if none, then to the surviving brothers and sisters, etc. The trustee was given authority to control the fund as he deemed best for the estate, looking to the comfort and convenience of his sister, and he might invest such portion of the funds in real estate as might secure such object, causing the title to the same to be conveyed to him as trustee on the same trusts and conditions as apply to the estate conveyed to him. The trustee is not to allow the sister to exceed the income of the estate, whatever it may consist of, "unless by misfortune or unavoidable accident, other than such as her own improvidence may occasion, the estate becomes greatly diminished in value, and imperious necessity affecting her or her family shall, in his judgment, render it proper to appropriate some portion of the principal; but when the necessity ceases the extraordinary expenditure shall cease, and the waste of the estate shall be repaired out of the future profits, if the same can be done without serious inconvenience to said Sarah or her family." There are many other provisions and restrictions in this deed of trust, but we are 60 S.W.-2 not called on now to construe them. It is certain, however, that the plaintiff, if entitled to any relief at all, is not entitled to encroach on the principal of the estate, nor, perhaps, on the profits accumulated prior to the expenditures in dispute. The question we are to consider is, can she recover at all? It is first suggested she cannot, because, by reason of her coverture, she cannot sue as next friend. But, as she also sues in her own right, this question is unimportant. Under our present laws she may maintain her action and recover in spite of her coverture, if otherwise entitled to the relief sought. We are of opinion further that her petition states a cause of action. The pleading on its face presents a state of case to the chancellor which entitles her to an accounting. She has the custody and charge of the person of the unfortunate invalid with the knowledge and acquiescence of the committee, who is charged in the law with the care and custody of the patient's personal well-being. She has expended a sum of money, as shown by her averments, to secure the health, the comfort, and the safety of her sister in the best possible way in which these essentials could be secured. The expenditure has accomplished and is accomplishing these desired results. If, instead of erecting this "home" for the patient, and establishing her in it as its head and mistress, the committee, or the plaintiff with his consent, had taken Sarah to the more healthy climate of Southern France or Italy, would these remainder people have been heard to object to the expenditure should it be shown the trip was what the patient needed? The amount of the expenditure, it is true, might be a matter of concern to the chancellor when he came to adjust the accounts. It cannot be said that the expenditure in question is an investment in real estate, and therefore in contravention of the terms of the deed of trust. If, in erecting the house for the invalid, there has been any permanent improvement of the plaintiff's property, the chancellor may, as matter of common justice and right, charge the plaintiff therewith; and may even provide for the contingency of the patient's immediate or early death, or the event of her ceasing to occupy the house, or of her permanent recovery of mind and health, if it be supposed the happening of these contingencies might pecuniarily benefit the plaintiff. And, after all, why should the unfortunate woman be committed to private or public mad houses because there might result, perchance, some gain to her benefactor or custodian? And especially why if the watchful chancellor may see to it that no such result is the outcome of the expenditure in question? The supreme consideration is the health, comfort, and security of the afflicted woman. If there can come to her at all any degree or glimpse of happiness or comfort, it must surely come when she finds herself the apparent mistress of her own home, and surrounded by her own |