Carroll v. Atlantic Steel Co.

106 S.E. 908, 151 Ga. 378, 15 A.L.R. 660, 1921 Ga. LEXIS 261

Opinion

Hill, J.

(After stating the foregoing facts.) This was an equitable action brought by Clarence Carroll, a minor, by his mother as next friend, to set aside a judgment rendered in the city court of Atlanta on September 3, 1918, in his favor against the Atlantic Steel Company as defendant, in which a verdict and judgment were entered for $450, by which it was attempted to fully satisfy the plaintiff’s claim for. damages against the defendant, alleged to have been sustained by him while an employee of the defendant. The petition also had for its purpose the recovery of damages to the amount of $25,000. One of the questions to be determined in the case is whether, under the allegations of the petition and the evidence thereunder, the verdict and judgment of the city court should be set aside on the ground of fraud in their procurement, and the plaintiff be allowed to go to the jury on the questions at issue in the case.

The ease of Missouri Pacific Ry. Co. v. Charles Lasca, 21 L. R. A. (N. S.) 338 (79 Kan. 311, 99 Pac. 616, 17 Ann. Cas. 605), was- similar in its facts to the instant case. There, in a suit commenced by Charles Lasca, a minor six years of age, by Nick Lasca, his father and next friend, to set aside a judgment rendered in the same court in favor of Nick Lasca and Anna Lasca, father and mother and next friends of Charles Lasca, a minor, plaintiff, v. Missouri Pacific Ry. Co., defendant, for $85 and costs, the petition alleged that the defendant caused the judgment to be rendered against itself; that there was no trial upon the pleadings and proofs, nor upon the merits of the case, and-no proof was made and no evidence offered and no damages assessed by the court; that the proceeding was without the knowledge or consent of Nick Lasca or Anna Lasca, and the judgment was obtained for the purpose of defrauding the plaintiff by barring the cause of action set up in the petition therein; that the plaintiff had a good cause of action for injuries caused by the negligence of the defendant, and still had such cause of action, unless barred by the judgment, which he asked to have set aside accordingly. The defendant answered by a general denial and a plea to the jurisdiction of the court, Hpon the trial of the ease the court made findings of fact, from which it appears that Nick Lasca, an. Italian employee of the Missouri Pacific By. Co., with Anna, his wife, and their son, Charles, about eighteen months of age, were living-in a bunk-car on a side-track. Another car, upon which was a water-tank, was standing near by on another side-track. Mrs. Lasca went to this, water-tank to draw water for domestic use, leaving the boy with his grandmother in the bunk-car. While the mother was thus absent the boy left the bunk-car, went to the other, side-track, and put his hands on the rail near the tank-car. Just at that time an incoming freight-train moved the tank-car so that a wheel passed over the boy’s hands, crushing and bruising them. Negotiations were opened between the defendant’s claim agent and the parents of the child, resulting in an agreement in writing whereby the parents agreed to accept $100 from the defendant in full of all claims for the injury, to be paid through a friendly suit to be instituted in a certain court; this sum was to cover all claims of the parents as well as of Charles Lasca, and was to be divided as the attorneys for the defendant might deem proper. In pursuance of this agreement the parents went to the office of the defendant’s attorney at the request of the claim agent, and there met the company’s attorneys and Pittman, another attorney, who was then in the office, with whom they consulted about the matter. The petition, answer, and reply in the proposed action had been prepared by the defendant’s attorneys. The petition and reply were signed by Pittman as attorney for the plaintiff; the papers being entitled “Nick Lasca and Anna Lasca, father and mother and next friends of Charles Lasca, a minor, plaintiff, v. The Missouri Pacific Railway Company, defendant.” The petition stated a cause of action for the injuries to Charles Lasca, and prayed for a judgment for $100. The answer contained a general denial and a plea of contributory negligence, and was signed by the defendant’s attorneys. Nick Lasca and Anna Lasca and the attorneys named then proceeded to the court of common pleas, filed the papers and presented them to the court; and the attorney for the defendant informed the court that this was a friendly suit for the settlement of the claim against the company, and that he wished to have a judgment entered against the company, in accordance with the settlement, for $95 and cost. The judge, the court being regularly in session, then called Nick Lasca and Anna Lasca and inquired of them whether the settlement was satisfactory. 'They stated that it was, and that they desired to have judgment entered accordingly. The judge informed them that, if a judgment was entered, it would cut off all claims of the child for further damages; and thereupon judgment was entered for $95 and costs, by consent of the parties. There was no trial of the issues; and no evidence was introduced, except the statement of the parties present, to the effect that the child had been injured by the defendant company, and that the parents had effected a compromise and settlement, and that the amount agreed upon was satisfactory. The judge made an entry upon his trial docket as follows: “ September 9, 1901, judgment for plaintiff for $95 and costs, by consent and agreement of all parties.” Thereupon a judgment was entered upon the journal of the court in ordinary form, etc. In affirming a later ruling of the trial court, setting aside this judgment, the Supreme Court of Kansas, speaking through Benson, J., said: “While in this case the court did exercise some supervision over the agreement, it did not judicially examine the facts to determine whether the agreement was 'reasonable and proper. The court merely approved what the next friend had done, not because it found that it was for the best interests of the infant, but because the consent of the parents had been given and they were still satisfied. The duty of the court, stated in many decisions, and referred to in the recent ease of Crapster v. Taylor, 74 Kan. 771, 87 Pac. 1138, to protect the interests of infants was not performed by inquiring of the parents if they were satisfied with the agreement. It may be that some of the cases above cited have carried the doctrine tb an extreme limit. The next friend must not be denied such necessary incidental powers as will facilitate the fair adjudication of the infant’s rights. This is necessary to their proper vindication, both in prosecution and defense. Where a compromise is fairly incidental to an action regularly brought, and is upon due judicial examination approved, the judgment, if not otherwise impeached, may be conclusive as in the case of adults; but where the proceedings in court are merely formal and instituted and carried on only to give an apparent sanction to the agreement, and there is no judicial investigation of the facts upon which the right or extent of the recovery is based, the judgment so entered by consent is only colorable, and must be set aside in a proper proceeding, when its effect, if allowed to stand, wouLd be to bar the infant’s rights. In such a case the proceeding in court should be regarded ‘as but formal, and as intended solely to employ the functions and powers of the court to give validity to the prior agreement.’ P., C., C. & St. L. Ry. Co. v. Haley, 170 Ill. 610, 613, 48 N. E. 920. See also Long v. Mulford, 17 Ohio St. 484, 93 Am. Dec. 638; Waterman v. Lawrence, 19 Cal. 210, 79 Am. Dec. 212; Kromer v. Friday, 10 Wash. 621, 39 Pac. 229, 32 L. R. A. 671, and note; Gooch v. Green, 102 Ill. 507; Ralston v. Lahee, 8 Iowa 17, 74 Am. Dec. 291. The conclusion of the trial court that no fraud in fact was committed in this transaction can not affect the right of the infant to relief. The judgment so set aside would have been an absolute bar to the prosecution of his claim, and thus he would have been deprived of his legal rights without authority. The motive of the actors does not avoid the consequences of the act. The parents had no power to consent to the judgment; having no other sanction, it can not stand.”

And see, to the same effect, Leslie v. Proctor & Gamble Mfg. Co., L. R. A. 1918C, 55 and notes (102 Kan. 159, 169 Pac. 193). In the latter ease it was held that “ Where a minor has sustained personal injuries which his father and the wrong-doer settled for an inadequate sum, such minor on attaining his majority may bring an action against the wrong-doer for his injuries, notwithstanding the settlement negotiated by his father.” See also, as to the powers and duties of next friends and guardians ad litem, 14 R. C. L. 288, 289, § 56, and cases cited.

Without adopting the views of the court in the Lasca case, supra, in extenso, we think the ruling upon the question we are now considering is sound. This is not a case where a lawyer is really employed by the parties and a judgment is entered under, a bona fide agreement of settlement. The attorney in this case, while nominally representing the plaintiffs, was, as a matter of fact, employed by the adjuster of the insurance company to effect the settlement for the steel company. The attorney testified that “ Mr. Coppix [the insurance adjuster] ‘ phoned me that he had a case that he wanted to give me, and I told him I would be glad1 to get it. He said he had a boy injured by the steel compan;/, and they had agreed upon a settlement of the case; and that it would be necessary, he being a minor, to take a consent verdict in it; and that he would send the boy to my office, which he did. In about an hour after that they came to my office. I had never seen them before, and didn’t know anything about them until that occurred. They told me the same that Mr. Coppix had, and wanted the suit filed so they could get their money; and I took the case for the steel company. Mr. Coppix said he would pay my fees, in addition to what he would pay them, which he did. Mr. Coppix told me they had agreed upon a settlement of $300. . . I think my fee was $150. I did not introduce any evidence in behalf of the plaintiff to the court and jury when the verdict was taken. No, sir, the court did not ask the plaintiff any questions as to the merits of the case. Odessa Carroll and Clarence Carroll were not present at the trial when the verdict was taken. No, sir, I did not notify Odessa Carroll or Clarence Carroll to be in court that day; it wasn’t necessary; they knew when the court was to meet,” etc. It will be observed that in the Lasca case, supra, the parents of the minor child did go before the court and stated that they desired to have judgment entered according to the agreement they had entered into. But in the present ease the record shows that neither the plaintiff nor his mother, who was acting as next friend for him, went before the court, and no testimony was offered as to the merits of the case, and these were not inquired into by the court. The petition in the case alleges a cause of action, and under it the plaintiff sought to recover $25,000 damages for the loss of his leg. The damages alleged were far in excess of the amount paid. The evidence of the plaintiff was sufficient to.authorize a jury to find for the plaintiff in some substantial amount for the injury alleged to have been sustained by him. Besides the amount which was actually paid, the sum of $300 was paid to the mother as next friend, and not to the plaintiff. The evidence of the plaintiff was to the effect that in the agreement of settlement he was to receive a lifetime job with the defendant; and in corroboration of this contention on the part of the plaintiff, he was given employment after he had recovered from the amputation of his leg. He was receiving the sum of $3.50 per day as wages when hurt, and $2.80 per day when he was discharged, and received no further compensation for his injury. It is true that the evidence is conflicting upon the question as to whether, under the terms of the settlement, the plaintiff was to receive a lifetime job witli the defendant; and this being so, we think the case should have been submitted to a jury under proper instructions. Under the facts of this case we hold that no settlement was made that had judicial sanction. The settlement was made out of court, and the verdict and judgment were purely perfunctory, and no investigation was made before the court and jury as to the reasonableness of the settlement and as to whether the verdict and the judgment covered the agreement which was really made between the plaintiff and the defendant. And we think that in such a case, where the proceedings in court are merely formal and are instituted and carried out in order to give an apparent sanction to the settlement, and there is no judicial investigation of the facts upon which the right or extent of the recovery of damages by a minor is based, such a judgment entered in pursuance of the agreement and by consent merely, is only colorable and will be set aside in a proper proceeding, when its effect, if allowed to stand, would be to bar the infant’s substantial rights. Mo. Pac. Ry. Co. v. Lasca, supra.

From what has been said we conclude that.the court erred in awarding a nonsuit.

Judgment reversed.

All the Justices concur.