Hanna v. Titus , 68 Ohio App. 127 ( 1941 )

The plaintiff, Robert Hanna, 17 years of age, a senior in high school, by his mother as next friend, sued one of his teachers, the defendant, Richard Titus, alleging he committed a wilful and malicious assault and battery upon plaintiff and praying damages therefor. The defendant moved the court to dismiss the action "for the reason that it is not for the benefit of the infant plaintiff."

After an extended hearing in which the parties and others testified quite fully as to the transaction in question, the court granted the motion and dismissed the petition. From this judgment this appeal on questions of law was taken. The errors assigned were the granting of the motion and dismissal of the petition.

Two questions are thus presented: (1) Did the court have power to thus dismiss the action on such preliminary motion? and if so, (2) is the court's action sustained by the evidence? In other words, did the court abuse its discretion?

1. The answer to the first question turned upon the meaning of Section 11247, General Code, which is as follows:

"The action of an insane person must be brought by his guardian; and of an infant by his guardian or next friend. When the action is brought by his next friend, the court may dismiss it, if it is not for the benefit of the infant, or substitute the guardian, or any person, as the next friend."

At common law an action by an infant was brought by a "next friend," and in many states the practice is still based on that authority. Where that prevails, the court has broad supervisory powers over the action and over the "next friend" representing the infant plaintiff. A typical expression to this effect is found in the opinion in Bertinelli v. Galoni, 331 Pa., 73,200 A. 58, 118 A.L.R., 398, where the court, speaking of the next friend, said:

"His actions are always subject to the control and supervision of the court, which has the right in each case to determine whether the litigation is in the infant's best interests."

To the same effect is Chudleigh v. Chicago, R.I. P. Ry. Co.,51 Ill. App. 491, 497; Longnecker v. Greenwade, 5 Dana (Ky.), 516; Barwick v. Rackley, 45 Ala. 215, 219.

In many states the statutes provide that such actions must be brought by a guardian ad litem appointed by the court, or by a next friend with the express approval of the court, examples of which are: 20 Mich. Ann. Statutes, 599, Section 27.680; Mason's Minn. Statutes, 1797, Section 9169; N.Y. Civil Practice, 108, Section 202.

Iowa and Wyoming have statutes identical with the Ohio law, but in neither of these states is there a reported decision regarding dismissals "if it is not for the benefit of the infant."

Apparently it is the purpose of the Ohio statute to give some court definite supervision over actions by infants. A guardian, appointed by the Probate Court, is responsible to that court. A next friend being a mere volunteer, the trial court is invested with the same broad powers it had at common law. It may "substitute the guardian [if there be one], or any person, as the next friend," or it may dismiss the action "if it is not for the benefit of the infant."

The statute does not say when this is to be done. It is urged by plaintiff that the court can exercise this power only after the issues are made up and tried and before final judgment. This would mean that all of the costs, expenses and trouble of making up the issues and marshaling and presenting the evidence in the trial would already have been incurred. If, as in this case, the question of benefit to the infant is raised before all of this has taken place, it would be to the interest of the plaintiff to have it determined at that time. Nothing in the statute, or the common-law practice of which it is a codification, prevents it being so done.

2. While there is some dispute in the evidence as to just what did take place, it is undisputed that the plaintiff was at the time a pupil under the supervision of the defendant and another teacher, that some dispute arose between these parties about the direction the defendant gave the pupil, and words followed, and that, as a disciplinary measure, defendant slapped the cheek of plaintiff, causing it to redden for a time, but otherwise there was no physical injury.

The plaintiff testified that after this action was filed by his mother he wanted it stopped because "Well, I didn't think — didn't think the publicity for the school or myself or Mr. Titus would do us any good."

At most, any recovery could only have been for very nominal damages. In view of all the circumstances, the trial court did not abuse its discretion in dismissing the action, and its judgment is affirmed.

Judgment affirmed.

OVERMYER, J., concurs.