Latcholia v. Texas Employers Ins. Ass'n , 167 S.W.2d 164 ( 1942 )

On Rehearing.

It is deemed advisable to write briefly upon one question emphasized in the motion for rehearing. The argument is pressed that a period of at least three months elapsed from the time when the parent or parents of the minor volunteered to /act for him as next friend and the time when a claim for compensation was actually filed, that there is no evidence justifying that delay, and that therefore, under the rule announced in our original opinion, the claim was filed too late. The argument proceeds upon the assumption that one of the parents of the minor became his next friend when he or she became interested in his claim. We do not have that conception of the meaning of “next friend”. There is a definition of “next friend” which seems to be quite generally accepted. It is as follows: “One who, without being regularly appointed guardian, acts for the benefit of an infant, married woman, or other person not sui juris.”

A volunteer does not become a next friend until he acts, that is until he institutes an action for or in behajf of a person non sui juris. Ray v. Sanitary Garbage Co., 134 Neb. 178, 278 N.W. 139; Chase v. Ulster & D. R. Co., 215 App.Div. 581, 214 N.Y.S. 615. In the instant case the minor’s father became his next friend when he filed the claim for compensation and thereby instituted this proceeding. It follows that no time elapsed between the coming forth of a next friend and the filing of the claim; the two acts were simultaneous.

The motion for rehearing will be overruled.

Opinion adopted by the Supreme Court.