Texas Employers Ins. Ass'n v. Grimes , 269 S.W.2d 332 ( 1954 )

GRIFFIN, Justice

(dissenting).

I cannot agree with the majority opinion as substituted for the opinion heretofore handed down. This record shows that Meta Grimes, as next friend for three minors, filed this suit for damages. A guardian ad litem was appointed for only one of the minors, leaving two for which no guardian ad litem was appointed. At the beginning of the trial it was agreed between Meta Grimes, individually and as next friend for the minors, and Texas Employers Insurance Association that the Insurance company should be paid the sum of $7,000.00 thereto paid by it to the minors as beneficiaries under the Workmen’s Compensation statute. The record further shows that an agreed settlement was made whereby Meta was paid the sum of $10,-666.67 “on the side” and by judgment she was decreed to take nothing; in the final judgment the minors were paid only $3,-000. It requires no argument to demonstrate that Meta had an interest adverse to the minors, and therefore could not properly represent the minors as their next friend. Greathouse v. Fort Worth & Denver City Ry. Co., Tex.Com.App., 65 S.W.2d 762; Missouri-Kansas-Texas R. Co. of Texas v. Pluto, 138 Tex. 1, 156 S.W.2d 265; Lumsden v. Chicago R. I. & T. Ry. Co., Tex.Civ.App., 56 S.W. 605. A guardian ad litem should have been appointed to represent them, and in the face of this record this cause should be reversed and remanded to the trial court for a trial wherein the minors could have their inter-«sts properly protected.