Cox v. Wrinkle

• Decision Date: 12 April 1954
• Docket Number: No. 1,No. 43897,43897,1
• Citation: 267 S.W.2d 648
• Parties: COX v. WRINKLE et al
• Court: Missouri Supreme Court

Page 648

267 S.W.2d 648

COX v. WRINKLE et al.

No. 43897.

Supreme Court of Missouri, Division No. 1.

April 12, 1954.

Motions for Rehearing or to Transfer to Court en Banc Denied

May 10, 1954.

Kirby W. Patterson, Springfield, for appellant.

A. P. Stone, Jr., Kenneth H. Reid, Springfield, for defendant-respondent, Arlene Wrinkle.

Allen, Woolsey & Fisher, Clarence O. Woosley, Russell G. Clark, Springfield, for respondent Streere.

VAN OSDOL, Commissioner.

Plaintiff John R. Cox instituted this action for his own personal injury and property damage, and for the loss of services and consortium of his wife occasioned by her personal injury, all sustained in a collision of the northbound automobile, in which plaintiff was riding and which was being driven by his wife, with the southbound automobile driven by defendant Arlene Wrinkle (nee Meador), an infant seventeen years old. The automobile driven by the defendant Arlene was driven around the automobile of defendant Pauline Steere, the Steere vehicle having been parked headed southwardly in the west lane of the pavement of State Highway No. 13, about seven miles north of Springfield.

Issues of negligence of defendants, and of negligence of plaintiff's wife if found to be imputable to plaintiff, were submitted to the jury. The jury found for plaintiff and against both defendants assessing damages in the aggregate of $8,750. However, the trial court sustained the motion for a new trial filed by defendant Wrinkle on seven grounds assigned in the motion, six of which were to the effect that the trial court erred in failing to appoint a guardian ad litem for the infant defendant Wrinkle. The trial court also sustained the motion for a new trial filed by defendant Pauline Steere. This motion was sustained on the specified ground that the trial court had erred in admitting into evidence a diagram or plat drawn by a state highway patrolman which diagram, it had been assigned, 'assumed facts concerning the point of impact' of the colliding vehicles. Plaintiff has appealed from the new trial orders.

In this case we have a primary and important question--when or in what circumstance should a trial court designate a guardian ad litem for an infant defendant.

Defendant Arlene Meador, who, after the collision and prior to trial had married one Carl Wrinkle, was, as stated, but seventeen years of age at the time of the collision (and at the time of trial). She was regularly served with process and, before the return day of the writ, a pleading was filed denominated 'Separate Motion for Costs and Counterclaim and Cross-Claim of Defendant, Arlene Wrinkle.' The caption of the pleading indicated defendants as 'Arlene Wrinkle (nee Meador), by her natural guardian, Arlin Meador, and Pauline Steere.' And the statement of defendant Arlene's counterclaim and cross-claim proper contained introductory paragraphs in which it was recited, 'Comes now Arlene Wrinkle (nee Meador), one of the defendants in the above-entitled cause, appearing by her father and natural guardian, Arlin Meador, and, for Count One of her counterclaim against plaintiff, John R. Cox, and her cross-claim against defendant, Pauline Steere, states and shows to the court as follows: * * *.' The pleading was signed only by counsel. A separate answer to plaintiff's petition was also filed, the caption of which answer described defendants as 'Arlene Wrinkle (nee Meador), by her natural guardian, Arlin Meador, and Pauline Steere.' However, defendant Wrinkle's counterclaim and cross-claim were dismissed March 16, 1953. And March 20th, prior to the beginning of the trial on March 26th, a separate amended answer was filed by counsel for defendant Arlene, the caption of which named the defendants as 'Arlene Wrinkle (nee Meador) and Pauline Steere.' It seems that only in the motion for costs, counterclaim and cross-claim did the father and natural guardian of defendant Arlene purport to appear and act for her in the instant litigation. And such statement of his acting in behalf of his daughter Arlene was only recognized thereafter in the captions of various pleadings of the parties and in the style of the case as stated in the caption of a notice of the taking of a deposition. Nowhere in the pleadings did the father purport to act as the regular or general guardian of defendant Arlene and, as we have stated supra, such infant defendant's amended answer did not even purport to be that of any guardian for the infant Arlene. The answer was signed only by counsel. Certainly defendant Arlene, infant, was not represented by any guardian ad litem appointed by the trial court, and no regular guardian or curator appointed by the probate court actually represented the infant defendant Arlene in the trial of the instant action.

The practice of having a regularly appointed guardian to represent an infant defendant is founded upon good reason. Of course, an infant has not the mature judgment and experience enabling him to contend with the skill, and with the learning and experience of those who may be arrayed against him in litigation often complicated. Protection by a guardian is an important legal privilege of an infant. A guardian is to do for the infant what with riper judgment he would do for himself. He is to appear for him, employ competent counsel to prepare and conduct his defense. He is to collect testimony, summon witnesses, and at the trial afford such aid to his counsel as may be necessary in unexpected difficulties. 'It is only by exercising that attention and vigilance in the cause of the minor, which he would exert in his own, that he fairly discharges his duty.' Language sanctioned by Gidson, C. J., in Mercer v. Watson, 1 Watts (Pa.) 330 at page 349; Reineman v. Larkin, 222 Mo. 156, 121 S.W. 307; Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977, 87 A.L.R. 660; Kennard v. Wiggins, 349 Mo. 283, 160 S.W.2d 706; Tracy v. Martin, 363 Mo. 108, 249 S.W.2d 321.

In Spotts v. Spotts, supra, this court remarked that in any proceeding against them infants are wards of the court and their rights are to be jealously guarded, and our statutes provide a method for doing this. In order to protect an infant's rights it is provided that, 'After the commencement of a suit against an infant defendant, and the service of process upon him, the suit shall not be prosecuted any further until a guardian for such infant be appointed.' Section 507.190 RSMo 1949, V.A.M.S. In cases cited herein by the defendant-respondent Wrinkle it has been expressed that the appointment of a guardian ad litem is 'mandatorily required', Tracy v. Martin, supra; that the statute, now Sec. 507.190, supra, is 'very positive in its requirement', Charley v. Kelley, 120 Mo. 134, 25 S.W. 571, 573; and that the court has the 'absolute duty' to appoint a guardian ad litem for an infant defendant, Fenn v. Hart Dairy Co., 231 Mo.App. 1005, 83 S.W.2d 120. The appointment of a guardian ad litem is not a bare technicality and that office does not involve only perfunctory and shadowy duties. Spotts v. Spotts, supra; Reineman v. Larkin, supra.

But apparently it is contemplated that Sec. 507.190, supra, should be applicable to a case where the service of process mentioned in the section is on the infant defendant personally; because if in fact an infant defendant has a 'legally appointed' guardian or curator, then the service of process in an action against an infant should be on the legally appointed guardian or curator. Section 506.150(2) RSMo 1949. V.A.M.S.

It is argued by plaintiff-appellant that the acts of defendant Wrinkle's father and natural guardian were not those of an interloper but, on the contrary, the father had both the right and duty to enter an appearance on her behalf and to defend this action against her. Plaintiff relies on Sections 457.020, 457.220, and 457.420 RSMo 1949, V.A.M.S., and cites State ex rel. Mo. Pac. R. Co. v. Cox, 306 Mo. 27, 267 S.W. 382, wherein it was said an action by a minor can be commenced and prosecuted by his natural guardian where he has no legal guardian; Taylor v. Mo. Pac. R. Co., Mo.App., 257 S.W. 511, 512 (reviewed on certiorari in the Cox case, supra), wherein it was said, 'We think an infant may sue by its father who is the natural guardian of the child, without the formality of having the father appointed as next friend'; Crawford v. Amusement Syndicate Co., Mo.Sup., 37 S.W.2d 581, in which case a next friend having been appointed for the infant plaintiff it was held to have been unnecessary to appoint a guardian ad litem to defend the infant plaintiff upon issues raised by the answer in which answer the infant plaintiff was placed in the position of a defendant, because it was the duty of the next friend to act for the minor plaintiff, under the supervision of the court, throughout the course of the litigation; and Oehmen v. Portmann, 153 Mo.App. 240, 133 S.W. 104, wherein the father had instituted the action as plaintiff in his own right as a bailor. None of these cited cases is in point here.

In the instant case, the judgment set aside by the trial court upon granting the new trial was against an infant defendant, Wrinkle. An entirely different question is presented when a judgment has been rendered in favor of the infant. In such a case an appearance by an attorney, 'blest by success in maintaining the infant's cause, would put the matter on another basis.' Reineman v. Larkin, supra [222 Mo. 156, 121 S.W. 311]; Section 511.260(7) RSMo 1949, V.A.M.S. The judgment, being against the infant defendant, the failure to appoint a guardian ad litem (there having been no representation in the defense of the infant by any guardian or curator duly appointed by the probate court) was error which was not cured upon verdict under the provisions of Sec. 511.260(7), supra. Reineman v. Larkin, supra; Robinson v. Hood, 67 Mo. 660.

Section 506.150(2), supra, providing for process to be served upon the legally appointed guardian or...