Bennett v. Ryan
| Decision Date | 20 November 1928 |
| Docket Number | 38990 |
| Citation | 222 N.W. 16,206 Iowa 1263 |
| Parties | RUTH BENNETT, Appellee, v. J. C. RYAN, Appellant |
| Court | Iowa Supreme Court |
Appeal from Boone District Court.--G. D. THOMPSON, Judge.
Action at law for damages resulting from a collision of automobiles. The defense was a general denial and a plea of settlement. In reply, plaintiff pleaded fraud and misrepresentation in avoidance of the settlement. There was a verdict for the defendant. Upon motion of the plaintiff, a new trial was ordered. From this order the defendant has appealed.
Reversed.
Stipp Perry, Bannister & Starzinger and F. W. Ganoe, for appellant.
Baker & Doran, for appellee.
The plaintiff, Ruth Bennett, was a minor 17 years of age at the time of the accident under consideration. On September 13, 1925, she was one of a party of four (two young men and two young ladies), riding on the single seat of a Ford roadster, which was driving north on Linn Street in the city of Boone. The defendant was driving westerly on First Street, which intersected Linn Street at right angles. The defendant's car, coming west on First Street, and the plaintiff's car, coming north on Linn Street, collided at the northwest corner of their intersection. The plaintiff was severely injured, and was confined to her bed for several weeks. Her physicians testified that she had made a good recovery, and would suffer no permanent injury. Before the beginning of her suit, she had received, pursuant to a purported settlement in full, the sum of $ 550. The verdict of the jury was adverse to her. The appeal is by the defendant from an order by the district court awarding the plaintiff a new trial.
We recognize a broad discretion of the district court in granting a new trial, and we have seldom reversed such an order. Such an order may be reversible, nevertheless. The defendant has assigned a large number of errors, predicated upon rulings upon the trial. Manifestly, alleged error in rulings upon evidence and in instructions are not available to the defendant in support of his appeal. The verdict of the jury in his favor cured such, and rendered them nonprejudicial. If the verdict had been adverse to him, such erroneous rulings would be available to him in his demand for a new trial. The opportunity of a new trial has been afforded him upon the motion of the plaintiff. Whatever his grievance now, it must be found in the order of the court granting his adversary a new trial, and not in the previous procedure, which resulted in a favorable verdict. The foregoing should be qualified with the statement that, if the defendant was entitled to a directed verdict upon the merits, as disclosed in the record, this of itself would ordinarily negative the right of the plaintiff to a new trial. It is to this proposition that we direct our first attention. At the close of the evidence, the defendant moved for a directed verdict, both on the ground of a failure of proof of original liability of the defendant, and on the ground that a full settlement had been had, which settlement had not been successfully impeached. We consider first the latter ground.
The defendant carried liability insurance with the Travelers Insurance Company. This insurance company sought a settlement on behalf of the defendant. On December 1, 1925, Eddy, the agent of the insurance company, called upon the plaintiff and her mother at the home. He advised both the mother and the daughter of the purpose of the company, and requested them to prepare for negotiations at a later date. On December 21, 1925, he returned, and carried on negotiations primarily with the mother. At that time, she demanded $ 1,000 in settlement. This demand was not acceded to, but the negotiations resulted in an agreement upon $ 550, as the sum to be paid in full settlement. This sum included all items of expense incurred, and the further sum of $ 25 per week for twelve weeks, to compensate the mother for her services as nurse. Thereupon, Eddy received the receipt of both mother and daughter for the sum of $ 550 in full settlement, and issued to them the check of the insurance company for $ 550. Later in the day, Eddy discovered, in conference with his attorney, that this settlement would be ineffective, for want of a guardian of the plaintiff, and of the assent of the guardian to the settlement, and the approval thereof by the court. Thereupon, Eddy returned to the mother and daughter, and advised them of his discovery. He also made an appointment with the mother to meet him the following day at the office of his attorney. Pursuant to the appointment, she met Eddy at the attorney's office, where an application for guardianship was prepared and duly signed, and verified by her, and whereby the oral settlement of the day before was formally repeated and put in writing, and signed by her as guardian. Pursuant to her application, she was appointed guardian on December 22, 1925. The contract of settlement was submitted to a judge of the district court resident in Boone, for approval, and was duly approved. The check given by Eddy the day before was surrendered, and a new check drawn and delivered to Mrs. Bennett for the same amount, she receipting for the same as guardian. At this point, an irregularity occurred, in that the order of the district judge approving the settlement was not filed and entered of record until March 5, 1926. It was filed, however, and made of record on such latter date. The plaintiff's suit was begun on February 24, 1926. The suit purported to be brought by the mother, Agnes Bennett, as next friend of Ruth Bennett. At the trial, the defendant challenged the right of Agnes Bennett to maintain the suit as "next friend," rather than as "guardian." This challenge was ignored by the court. The plaintiff also challenged the validity of the guardianship proceedings and of the settlement thereunder, on the ground, among others, that the order of the district judge had not been filed or entered of record in the court records until after the beginning of the suit. This challenge was also ignored.
We think that a claim of invalidity of the guardianship proceedings cannot be predicated upon mere delay in causing the order of approval of the district judge to be entered of record. The district judge had jurisdiction to make a valid order in vacation. Such order undoubtedly contemplated a filing and a record thereof. We think it true, also, that, upon the filing of said order, and the recording thereof in the probate records, it became effective as of December 22, 1925. And this is so even though its effectiveness should be deemed suspended until such filing was made,--a question we do not now decide. The plaintiff also challenged the validity of the order approving the settlement, on the ground that all the papers in the proceeding, including the agreement of settlement, were signed by Agnes Bennett before her appointment was actually made. All the papers were signed in contemplation of the appointment of the guardian, and such appointment was immediately made, on the same day. In legal contemplation, the various instruments, including the appointment by the clerk, were simultaneous. All became effective at the same time.
The fact that Agnes Bennett brought her suit as "next friend," instead of "guardian," is not of controlling importance at this stage of the case. She was the guardian, and she was in court representing a ward. Strict formality and regularity required her to denominate herself "guardian." The court could, and probably should have ordered an amendment acco...
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