Gunter v. Henderson Molpus Co.

115 So. 720, 149 Miss. 603, 1928 Miss. LEXIS 62

• Court: Mississippi Supreme Court
• Decided: February 27, 1928
• Docket: No. 26921.
• Status: Published

Opinion

Cook, J.

This suit was instituted in the circuit court of Scott county against appellee, seeking to recover damages for the injury and death of Minor Gunter, a minor, about fifteen years of age, who died from injuries sus tained while working at or around an alleged defective and dangerous piece of machinery in appellee’s sawmill. The appellants, plaintiffs in the court below, were the ' father, mother, and minor brothers and sisters of the deceased.

To the declaration, the defendant interposed a plea of the general issue, and gave notice thereunder that it would offer evidence to prove that it was guilty of no negligence, and that the negligence of the deceased was the sole and proximate cause of the injury and death. There was also filed a plea of accord and satisfaction in which it was averred that the plaintiffs and the defendant compromised and settled all claims and rights of action arising out of, or in any way connected with, the injury! and death of said minor; that for a consideration of three thousand dollars, the plaintiffs, and each of them, executed and delivered to the defendant releases and acquittances discharging the defendant from any and all claims or demands resulting from the said injury and death; that in making said compromise and settlement and in executing and delivering said releases and acquittances, the adult plaintiffs acted for themselves, and the said minor plaintiffs acted through their father, Y. B. Gunter, as guardian, and under the authority given by the chancery court of Scott county. As exhibits to this plea, there were filed copies of the releases executed by each of the plaintiffs, and also copies of the letters of guardianship issued to the said Y. B. Gunter as guardian of said minor children, and the petition of said guardian for authority to compromise and settle the claim and right of action of each of said minors for the injury to and death of the said Minor Gunter, and also a copy of the decree made and entered by the chancery court of Scott county, authorizing such settlement.

To the said special plea, the plaintiffs filed a demurrer, assigning two grounds: First, that the chancery court had no jurisdiction to appoint a guardian for said mi nors, for the reason that they had no estate; and, second, the chancery court had no power to authorize a settlement of the claim until twelve months had elapsed after the appointment of the guardian. This demurrer was overruled, and, on appeal, the first and second assignments of error are based upon points raised by this demurrer. Upon the overruling of the demurrer to this special plea, the plaintiffs filed a replication to the plea averring’ facts in avoidance of the force and effect of the releases pleaded. We do not deem it necessary to here set out this lengfhy replication, which, including the exhibits thereto, covers thirty full typewritten pages of the record, but it will be sufficient to say that when it is stripped of matters which are immaterial or purely evidentiary, it admits that Y. B. Gunter and his wife signed the releases individually; that Y. B. Gunter signed all the papers in the chancery court proceedings, including the petition for letters of guardianship of the minors, the four guardian bonds, the guardian’s oaths, and the petition to the chancery court for authority to compromise and settle the claims of the minors; and that as guardian of said minors, he signed the several releases that were executed in their behalf, but avers that he did not knowingly sign any of said papers, either individually or as guardian; that trusting and relying upon the representations of a Mr. Turner, an agent of the appellee company, with whom he was closely associated in business, he signed these papers and documents either under' the belief that he was taking acknowledgments to the papers for the said Turner, as he was officially authorized to do, and as he was accustomed to do, or under the belief that he was releasing some insurance company for money due under some sort of an insurance policy carried by the appellee company on the lives of its employees, including his deceased son, and that he had been induced by the said Turner to believe the execution of these papers was a mere formality required by such insurance company before paying over to Mm the insurance money due him; and, therefore, that his signature to all of said papers and documents had been secured by fraud and deceit chargeable to the appellee.

The appellee demurred to the replication on the grounds, among others: First, that the said replication contains no sufficient answer in law to the matters and things set out therein; and, second, under the facts alleged in said replication, there is no sufficient showing of any fraud or deceit such as will warrant the attack on the proceedings set out in said replication. This demurrer was sustained, and the appellants having declined to plead further, final judgment in favor of the appellee was entered. From this judgment, this appeal was prosecuted.

The first contention of appellants is that the chancery court had no jurisdiction or authority to appoint a guardian for these minors, for the reason that they were not orphans and had no estate, and in support of this contention, special stress is laid upon the fact that the legislature of 1926 deemed it necessary or advisable to pass an act authorizing the chancery court to appoint a guardian for any person who is entitled to receive funds due by the federal government, this act being section 1, chapter 145, Laws of 1926 (section 2137, Hemingway’s 1927 Code). The statute under which the guardian was appointed in this case is section 2403, Code 1906 (section 2085, Hemingway’s 1927 Code), which reads, in part, as follows:

“When a guardian has not been appointed by the parent, or, if appointed, has not qualified, the chancery court of the county of the residence of a minor who has an estate, real or personal, shall appoint a guardian for him, giving preference in all cases to the natural guardian, or next of kin, if any apply, unless the applicant be manifestly unsuitable for the discharge of the duties.”

Section 1, chapter 145, Laws of 1926 (section 2137, Hemingway’s 1927 Code), having reference to the ap pointment of.guardians where federal government funds are involved, provides that—

“The chancery courts may grant letters of guardianship of the estate of any person where it appears that such person is entitled to funds, money or property from the federal government or any of its departments, and where it appears that it is necessary that a guardian be appointed to receive such funds, money or property from the federal government, or where the federal government refuses to pay or deliver such funds, money or property to such person and requests or demands -a guardian of the estate of such person before such property, money or funds will be paid or delivered.”

In the case of Fox v. Fairchilds, 133 Miss. 617, 98 So. 61, the court approved a settlement by a guardian of his wards’ claims for damages for the alleged wrongful injury to and death of their brother, which settlement had been authorized by a decree of the chancery court. In that case, it does not appear that the minors had any estate other than this claim for damages; but counsel for appellants now contend that the power or authority of the chancery court to appoint a guardian, under such circumstances, was not raised in that case, and that the only question litigated and decided was whether the statute empowered the chancery court or chancellor to authorize a guardian to compromise and settle claims arising ex delicto. If we concede that this question is not ruled by-prior decisions of this court, and must be approached as one of first impression, still we are of the opinion that appellants ’ position is untenable. The statute authorizes the appointment of a guardian for any minor who has an estate, real or personal, and as used in this statute, the words “estate, real or personal,” are broad enough, and were intended, to cover every sort of property, including choses in action or rights of action; and a claim, for damages arising ex delioto is embraced within the term “estate” as used therein.

Appellants argue that the enactment of chapter 145, Laws of 1926, in reference to guardianships where federal government funds are involved, is, in effect, a legislative declaration that section 2403, Code 1906 (section 2085, Hemingway’s 1927 Code), confers no authority on the chancery court to appoint a guardian where the minor has no estate other than a claim or right of action for damages; hut, in our opinion, this contention is likewise without merit. The said chapter 145, Laws of 1926 (sections 2137 to 2139, inclusive, Hemingway’s 1927 Code), authorizes the appointment of a guardian for any person who is entitled to money or property from any department óf the federal government where it appears that it is necessary that a guardian be appointed to receive' such money or property, or where the federal government requires the appointment -of a guardian before such funds, money, or property will be delivered or paid. Under this statute the power of the chancery court to appoint guardians is not limited to minors, convicts, or persons of unsound mind, but a guardian may be appointed for “any person” who is entitled to funds, money, or property from the federal government if that government requires or demands a guardian of the estate of such person before such property, money, or funds will be paid or delivered. This section greatly enlarges the class for whom guardians may be appointed, and appears to be an attempt on the part of the legislature to' meet any requirement that the federal government may interpose for the payment of money or the delivery of property to those entitled to it. But we do not think it can be interpreted as a legislative construction that section 2403, Code 1906 (section 2085, Hemingway’s 1927 Code), confers no power upon the chancery court to appoint a guardian for a minor whose only estate is" a right of action for damages.

The appellants next contend that the chancery court has no authority to empower a guardian to compromise and settle Ms ward’s.claim or right of action for damages until after twelve months from the grant of letters of guardianship. The statute authorizing guardians to settle or compromise claims due their wards appears as section 2421, Code 1906 (section 2103, Hemingway’s 1927 Code), and provides :•

“Guardians may be empowered by the court, or chancellor in vacation, to sell or compromise claims due their wards, on the same proceedings and under the same circumstances prescribed in reference to the sale or compromise by an executor or administrator of claims belonging to the estate of a deceased person.”

The section in reference to the sale or compromise by an executor or administrator of claims of a deceased person is section 2065, Code 1906 (section 1805, Hemingway’s 1927 Code), and reads as-follows:

“The court, or chancellor in vacation, on petition for that purpose, may authorize the executor or administrator to sell or compromise any claim belonging to the estate which cannot be readily collectéd; but an order authorizing a sale of any claim shall not be made until after twelve months from the grant of the letters. The court or chancellor shall specify the terms, conditions, and notice of such sale. In compromising any claim, the executor or administrator may receive property, real or personal, in his name as such, and he shall account for the same as assets of the estate. The executor or administrator shall report, in writing, all sales and compromises to the next term of the court. ’ ’

It will be noted that under section 2421, Code 1906 (section 2103, Hemingway’s 1927 Code), the chancery court, or the chancellor in vacation, has the authority to empower guardians to sell or compromise claims due their wards on the same proceedings and under the same circumstances prescribed with reference to the sale or compromise by an executor or administrator of claims belonging to the estate of a deceased person. When, in order to determine -what power may be conferred on a guardian to sell or compromise claims of his ward, we turn to the statute which empowers the court to authorize an executor or administrator to sell or compromise a claim, section 2065, Code 1906 (section 1805, Hemingway’s 1927 Code), we find that the court, or chancellor in vacation, on petition for that purpose, may authorize an executor or administrator to sell or compromise any claim belonging to the estate which cannot be readily collected. However, an order authorizing the sale of a claim cannot be made until twelve months have elapsed after the granting of the letters testamentary, or of administration; but no such limitation is placed upon the power to compromise such' a claim. The statute requires that the court, or chancellor, shall specify the terms, conditions, and notice upon which a sale may be made, but such is not required in an order authorizing* a compromise. In compromising a claim, an executor or administrator— and consequently a guardian—may receive property, real or personal, in his name as such, but this is not allowed by this statute in the case of the sale of a claim. All sales and compromises must be reported to the next term of court. Thus, it appears that the ■ provisions of the statute for the exercise of the power to order sales are different from those providing for a compromise of doubtful claims. It is expressly provided that there shall be no power to authorize a sale of such a claim until after the expiration of one year from the grant of the letters; but no such limitation is expressed in the case of a compromise, and there appears to be no reason why the power to authorize such a compromise may not be exercised at any time after the grant of letters.

That this is the proper construction of this statute is clearly indicated by an examination of the history of these statutes, and the form in which they have appeared since they were first adopted as the law of this state. The statute authorizing executors and adminis trators to sell or compromise claims was first enacted on March 5,1846, and appears as sections 6 and 7, article 20, chapter 49, of Hutchinson’s Mississippi Code. By section 6 of this article, it was provided that the probate court might, upon certain prescribed conditions, order any executor or administrator to sell or compromise any claim or claims due the estate of his, her, or their testator or testatrix; while section 7 provided that—

“No order of sale or compromise shall be made before the term of the court next succeeding that at which, the petition is filed for that purpose . . . nor shall any order of sale or compromise of claims ... be made until after the lapse of twelve months from the time at which the letters testamentary, or of administration, were granted.”

By section 6 of article 21 of said chapter 49, the provisions of the above-mentioned sections 6 and 7 of the said article 20' were made applicable to guardians of minors. In the Code of 1857, the twelve-month limitation upon the power of the probate court to order sales of claims was continued; but this limitation upon the power to authorize the compromise-of such claims was omitted. Article 95 of chapter 60 of that Code provided that—

‘ ‘ The probate court may, by decree, authorize any executor or administrator to sell or compromise any claims due the estate, which cannot be readily collected, . . . but no such order of sale shall be made, until twelve1 months have elapsed from the grant of the letters, and not until the next succeeding term after the petition has been presented.”

In all succeeding Codes, the twelve-month limitation on the power to authorize the sale of such claims has been continued, but no such limitation on the power to compromise has again received statutory expression; and we do not think any such limitation may be implied from that fact that such limitation is imposed on the right to authorize sales.

The final question presented by the pleadings is whether or not the averments of the replication to the special plea of accord and satisfaction are sufficient to nullify the releases executed by the plaintiffs on the ground that they were fraudulently obtained, and therefore void. While there are no averments in the plea seeking to avoid the release executed by Mrs. V. B. Gunter, the mother of the deceased, it is averred that Y. B. Gunter, individually, and as guardian of his minor children, did not knowingly sign the releases, or any of the papers in the proceedings in the chancery court to secure authority to compromise the minor’s claim for damages. The replication admits that V. B. Gunter - did actually sign all these fifteen separate papers and documents, but alleges that he did not knowingly sign them. There is an indefinite charge that he was induced to sign these documents by a Mr. Turner, superintendent of appellee’s mill, either upon the representation that it was a mere formality to collect some sort of insurance carried by the appellee upon the life of the deceased, or under a belief that, as an officer authorized so to do, he was taking acknowledgments of other parties’ signatures to these papers. Aside from the fact that the unreasonableness of these averments and the details set forth in support thereof would appear to be sufficient refutation thereof, we think the averments of this replication are too indefinite to .constitute a charge of fraud which would avoid the releases. The replication shows that the said Gunter was an experienced business man. He admits that he signed these papers, fifteen in number, and had ample opportunity to read them. There is no specific charge that he was induced not to read the papers by any fraudulent representation on which he was entitled to rely; and it was held in the case of Continental Jewelry Co. v. Joseph, 140 Miss. 582, 105 So. 639, that-—

“A person cannot avoid a written contract which he has entered into on the ground that he did not read it or have it read to him, and that he supposed its terms were different, unless he was induced not to read it or have it read to him by fraudulent representations made to him by the other party, on which he was entitled to rely. ’ ’

The judgment of the court below will therefore be affirmed.

Affirmed.