Dudex v. Sterling Brick Co.

Leonard Dudex, a small boy three years of age, while walking along Military avenue in the city of Detroit, was run over and injured by a truck owned by defendant Sterling Brick Company. The injury was so serious that he was obliged to have his right leg amputated above the knee. Attorney McDonald appeared in court for the boy. John Dudex, the father of the boy, was appointed his next friend by the circuit court, and suit was begun September 15, 1925, and the declaration was filed on October 5th. Plea was filed on October 12th. The negligence complained of was excessive and unlawful speed, failure to give timely warning of the approach of the truck, failure to operate the truck with ordinary care and caution, and that said truck was being driven left of the center of the highway. On December 12th plaintiff made a motion to advance the cause on the docket. This was met by defendants by a showing that the cause had been settled. The motion to advance was granted. The case afterwards came on for trial and it appeared from the cross-examination of plaintiff's father that he had settled the case on approval of the probate court. In view of this, the trial court directed a verdict for defendants, saying in part to the jury:

"Now, there is the contention of the plaintiff and the claim, to some extent here, that this settlement was an improper one; that it was not for the best interests of the plaintiff, and that it should not have been allowed. While that may be true, members of the jury, the condition of the pleadings in this case being a declaration alleging negligence, and, on the other hand, a plea of the general issue, coupled with notice of special defense, we cannot go into that matter — whether this settlement was an improper one — was a good settlement or not — whether it was obtained by fraud or not — the condition of the pleadings in this case will not admit of our going into it, and so, at the close of the plaintiff's case, defendant has made his motion for the direction of a verdict, based on the ground that the matter in dispute having been amicably adjusted and settled as between the parties, that, therefore, plaintiff has no standing in court. * * * Now, while this is, indeed, a sad case, and while our sympathies may be extended to the parents and to the child, under the existing circumstances, of course, we have only heard just a little bit of the testimony, from the way it stands we do not know, of course, whether the defendant was negligent or not, nevertheless, it is a very sad case and one that excites our sympathy, and yet we cannot permit our sympathies or our prejudices to rule on a question of law."

The question is raised by the attorney for plaintiff that the trial court was in error in admitting the order of settlement by the probate court and the settlement receipt by the father. He insists that the probate court had no jurisdiction of this negligence case, that the circuit court did have, and that if a settlement was proposed it was the duty of the next friend to bring it to the attention of the trial court; it was then the duty of the trial court to investigate the particulars of the accident and the terms of the proposed settlement and determine whether it was for the best interests of the infant that the case be settled for the sum proposed.

We have recently held that, where it was proposed to compromise pending litigation in which a minor was a party, neither the next friend nor the general guardian could compromise it without the aid of the court that had jurisdiction of the suit. Palazzolo v. Judge of Superior Court, 234 Mich. 547. When the present case came on for trial it soon developed that the matter had been settled by the father, who was next friend and also general guardian, in pursuance of authority of the probate court, for the sum of $2,800, after the matter was at issue in the circuit court.

The trial court in directing a verdict evidently relied on the authority given by the probate court, and, therefore, took no trouble to inform itself whether the proposed settlement properly protected the rights of the infant. We think in this the court was in error. The circuit court had jurisdiction of this action for damages. When it appeared that it had been compromised it was the duty of the trial court to investigate and determine whether the announced settlement made by the next friend and guardian was a fair one for the infant. The finding of some other court would not suffice. The duty was upon the trial court, which had jurisdiction of the case.

The suit was begun in the circuit court. The circuit court appointed the next friend for plaintiff. The circuit court had before it the files in the case. It had knowledge of what the declaration charged. It had the power to develop the proofs and thereby learn the facts. If the court had not already learned what the facts were concerning the accident it should have proceeded far enough with the proofs to learn them. To enable it to do this it was within the power of the court to call in other witnesses, and when fully advised in the premises it should either give or withhold its consent to settle on the terms proposed.

Why this power is given to the trial court before which the suit is pending is because that court has every facility for learning what the infant's rights are. The probate court has not this opportunity without having the pleadings and proofs presented again in that court. Had a compromise been proposed before action was commenced in the circuit court it would have been proper to invoke the aid of the probate court, but after such a case is commenced in the circuit court it is the duty of that court to conclude it and see that the best interests of the infant are conserved if a compromise is suggested. Metzner v. Newman,224 Mich. 324 (33 A.L.R. 98). In that case the following is quoted touching the duty of the trial court under such circumstances:

"If, in the course of a suit or any other proceeding in this court, a compromise is proposed between one or more adult persons, and one or more infants, the court takes steps to ascertain whether it will be for the benefit of the infant or infants that the proposed compromise should be accepted. Formerly this was done by a reference to the master to ascertain that fact, at present it is done sometimes by reference into chambers, and sometimes without adopting that course, if the judge, after considering the evidence presented to the court, is of opinion that, without further investigation, it is sufficient to enable him to decide on the matter. In dealing with such a question, it is the duty of a judge (and, as I believe, a duty always performed by him) to consider carefully the facts, and to determine, upon such consideration, what is best to be done for the infant, in like manner as a father would act for a son in similar circumstances. No doubt, in such cases, especially when the result of this evidence is doubtful, the court is much influenced by the opinion of the nearest relatives and guardians of the infant, who have no interest in the matter except to promote the advantage of the child. When this has been done, and the court has decided in favor of the arrangement, and the arrangement has been thereupon carried into execution, the whole thing is concluded."

It is said in 14 R. C. L. p. 288 that

"It is usually held that the next friend cannot enter a satisfaction of a judgment and still less can he bind the infant by a compromise of his claims. If a compromise should seem desirable, the proper course is for him to submit it to the court, by whom he was appointed or permitted to act, for its approval and sanction. When so approved it will be valid and binding."

"A next friend cannot compound a judgment, nor release nor discharge a cause of action out of court. He has no power to compromise or settle without the express sanction of the court. But a compromise may be enforced by the court when made for the infant's benefit." 14 Enc. Pl. Prac. p. 1040.

It will be unnecessary to cite authorities to the proposition that after the circuit court has once taken jurisdiction of this matter it could not be divested of it by the probate court, or by any other court of coordinate jurisdiction. Therefore the objection to the admission in evidence of the authority of the probate court to make the settlement should have been sustained.

Complaint is made that if plaintiff desired to avoid the settlement and proceed with the trial he should have tendered back what had been paid to make the settlement. The answer to this is that nothing had been paid to the minor nor to any one else who had authority to receive it. If defendant has paid money to some one who had no authority to receive it it has its remedy.

By reason of the failure of the trial court to determine whether the proposed compromise was a fair one for the minor, the judgment is reversed and a new trial granted, with costs to plaintiff.

WIEST and McDONALD, JJ., concurred with BIRD, J.