Lathrop v. Schutte

Action brought by the father to recover damages sustained by his minor son by reason of injuries to him by two vicious dogs kept by the defendants. Trial and verdict for the plaintiff, and from an order denying his motion for a new trial the defendant Dearing appealed to this court. Order affirmed. Lathrop v. Dearing, 59 Minn. 234, 61 N. W. 24. Cause remanded to the district court, and judgment entered for the plaintiff, from which the defendant appealed.

Appellant claims that a father cannot maintain an action in his own name for an injury to his minor child. Such action is expressly authorized by G. S. 1894, § 5164, as construed by this court in Gardner v. Kellogg, 23 Minn. 463, which was followed at the present term in Buechner v. Columbia Shoe Co., 60 Minn. 477, 62 N. W. 817.

He further claims that the statute so construed violates the four-, teenth amendment to the constitution of the United States, in that it deprives him of his property without due process of law. The statute, as construed, deprives neither the appellant nor the minor child of his property. It simply authorizes the father, or, in case of his death or desertion of his family, the mother, as the natural guardian of the child, to bring the action for its benefit. Whatever is recovered, if anything, belongs to the child, and the father holds it in trust for him. The equitable powers of the court are ample for the protection of the child and the enforcement of the trust, and, in cases where there is reason to believe that the trust will not be faithfully executed, it may require security from the father before any money is paid to him. The judgment in such action by the parent is a bar to any subsequent action for the same cause prosecuted by the minor, by his guardian, general or ad litem, or by himself, when he reaches his majority.

Judgment affirmed.