Burke v. Northern P. Ry. Co.

• Decision Date: 10 June 1915
• Docket Number: 12259.
• Citation: 86 Wash. 37,149 P. 335
• Parties: BURKE et al. v. NORTHERN PAC. RY. CO.
• Court: Washington Supreme Court

149 P. 335

86 Wash. 37

BURKE et al. v. NORTHERN PAC. RY. CO.

No. 12259.

Supreme Court of Washington

June 10, 1915

Department 1. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by John Burke and others against the Northern Pacific Railway Company. From an order setting aside a compromise judgment for plaintiffs, appointing a new guardian ad litem for the infant plaintiffs, and permitting him to file a substituted complaint on their behalf, defendant appeals. Reversed and remanded, with directions to dismiss the petition.

Cannon Ferris & Swan, of Spokane, for appellant.

A. O Colburn and Luby & Pearson, all of Spokane, for respondents.

MORRIS C.J.

This is the same case reported in 80 Wash. 188, 141 P. 364, wherein a motion to dismiss the appeal was denied; the appeal being from an order setting aside the first judgment. But little need be added to the statement of facts contained in the first opinion for a proper understanding of the questions upon which this appeal hinges. The lower court found that, the amount to be paid having been agreed upon Mrs. Burke, accompanied by her attorney and the attorney for the railroad company, appeared before the court in the department of Kennan, J., and made a statement to the court touching the controversy. The record shows, in addition to this finding, that Mrs. Burke was called to the stand and interrogated by the court as to her knowledge of the facts upon which the action was based, her attitude towards the proposed settlement, and her judgment as to whether or not it conserved the best interests of the minor children; and the court, upon hearing the statements and evidence of Mrs. Burke, made findings and entered judgment. The proceeding to vacate the judgment so entered was had before Huneke, J., and the finding upon which the conclusion of constructive fraud was made is that: 'The attention of the court was not called to all the facts pertaining to the matter, in that one Frank Weston, who was personally present and conversant with the facts involved in the accident resulting in and causing the death of said Edward Burke, was not produced, nor were such facts otherwise called to the attention of the court, though the knowledge of such witness as to these facts was well known to the said Bertie Burke and her attorney, and though the presence and testimony of said witness could have been readily secured, and that the testimony of said witness, had it been produced, would have substantially supported the allegations of the complaint and established prima facie negligence on the part of the defendant contributing to the injury and death of said Edward Burke, and was material to the issue of compromise, and should have been produced.'

Weston was produced at this hearing, and testified to facts within his knowledge. It appears that at the time of the accident he was upon the platform of the caboose with a brakeman named Brown. This fact was known to Mrs. Burke at the time of the hearing upon the settlement, and she testified she indicated the fact to her attorney. Weston now testifies that shortly after the accident he called upon the attorney for Mrs. Burke and indicated to him the facts concerning the accident within his knowledge. The brakeman, Brown, had also called at the office of Mrs. Burke's attorney, who obtained from him a statement of the facts within his knowledge. This statement is now produced. It does not differ materially from the facts testified to by Weston, so that it is clear at the time of the settlement that Mrs. Burke and her attorney knew all of the facts concerning the accident in so far as Brown and Weston could relate them.

Brushing aside a number of technical errors suggested by appellant, such as that the parties in this action are not the same as those in which the judgment was entered, that all the parties in the former action are not made parties in this action, the statute of limitations, and other so-called infirmities, we will determine whether or not these facts support the judgment. It may be said, first, that in the absence of fraud or collusion, minors properly in court are bound as fully as persons of full age, and, when properly represented, are bound by the knowledge of those who represent them. The law recognizes no distinction between a decree in favor of or against infants and a decree to which adults only are parties. The same invalidating vice must be found in the one case as in the other. Kromer v. Friday, 10 Wash. 621, 39 P. 229, 32 L. R. A. 671; English v. Savage, 5 Or. 518; Savage v. McCorkle, 17 Or. 42, 21 P. 446; Harrison v. Wallton's Ex'r, 95 Va. 721, 30 S.E. 372, 41 L. R. A. 703, 64 Am. St. Rep. 830; Johnson v. Johnson, 38 Tex.Civ.App. 385, 85 S.W. 1023; 1 Daniel, Chancery Practice,§ 164.

Speaking to this point, it is said in Thompson v. Maxwell Land Grant Co., 168 U.S. 451, 18 S.Ct. 121, 42 L.Ed. 539:

'It would be strange, indeed, if, when those authorized to represent minors, acting in good faith, make a settlement of claims in their behalf, and such settlement is submitted to the proper tribunal, and after examination by that tribunal is found to be advantageous to the minors and approved by a decree entered of record, such settlement and decree can thereafter be set aside and held for naught, on the ground that subsequent disclosures and changed conditions make it obvious that the settlement was not, in fact, for the interests of the minors, and that it would have been better for them to have retained rather than compromised their claims. If such a rule ever comes to be recognized, it will work injury, rather than benefit, to the interests of minors, for no one will make any settlement of such claims for

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