Dudex v. Sterling Brick Co., 17.

• Court: Supreme Court of Michigan
• Writing for the Court: BIRD
• Citation: 212 N.W. 92,237 Mich. 470
• Parties: DUDEX v. STERLING BRICK CO. et al.
• Docket Number: No. 17.,17.
• Decision Date: 04 February 1927

237 Mich. 470
212 N.W. 92

DUDEX
v.
STERLING BRICK CO. et al.

No. 17.

Supreme Court of Michigan.

Feb. 4, 1927.

Error to Circuit Court, Wayne County; Joseph A. Moynihan, Judge.

Action by Leonard Dudex, an infant, by John Dudex, his next friend, against the Sterling Brick Company and another. Judgment for defendants, and plaintiff brings error. Reversed, and new trial granted.

Argued before the Entire Bench.

[212 N.W. 92]

Walter M. Nelson, of Detroit (M. F. McDonald and Arthur Jones, both of Detroit, of counsel), for appellant.

Kerr, Lacey & Scroggie, of Detroit, for appellees.

BIRD, C. J.

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 Cotober 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 defendant, 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 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, therefore, plaintiff has no standing in

[212 N.W. 93]

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. Verdier, Judge, 234 Mich. 547, 208 N. W. 677. 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, 194 N. W. 1008, 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...