Fox v. Fairchild

• Decision Date: 05 November 1923
• Docket Number: 23456
• Citation: 133 Miss. 617,98 So. 61
• Court: Mississippi Supreme Court
• Parties: FOX v. FAIRCHILD et al

98 So. 61

133 Miss. 617

FOX v. FAIRCHILD et al

No. 23456

Supreme Court of Mississippi

November 5, 1923

Division A

Suggestion of Error Overruled Dec. 17, 1923.

APPEAL from circuit court of Jones county, HON. R. S. HALL, Judge.

Action by H. L. Fairchild, next friend, and others, against D. B Fox. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

Shannon & Schauber, for appellant.

The appellant assigns as error the refusal of the lower court to grant him a peremptory instruction. The appellant assigns as error the action of the lower court in sustaining plaintiff's demurrer to the special plea filed by defendant, setting up the releases executed by the guardian on behalf of each plaintiff under the authority of the chancery court.

Since Hon. R. H. Thompson, of the Jackson, Mississippi Bar, has filed in this cause, as amicus curiae, an elaborate brief on the authority of a guardian to compromise claims of his ward either with or without authority of the chancery court, we shall not attempt to treat this phase of the subject in our brief, but will merely content ourselves with replying to the argument advanced, and the authorities cited, by counsel for appellees on the trial of the case in the court below.

We submit that the authorities cited in the brief of Judge R. H. THOMPSON, which is on file in this cause, shows beyond controversy that under the common law, as adopted by the state of Mississippi, and as upheld by the decisions of this court, a guardian can, without first obtaining the consent of the court, compromise and settle all claims, both tort and contract, due his ward, and acquit the debtor of, or obligor to, his ward, of further liability to the ward. Judge THOMPSON, in his brief, also discusses the origin of the statutes of this state authorizing the guardian to compromise claims or demands due his ward, and also analyses the decisions rendered by this court under said statutes.

Robert H. Thompson, Amicus Curiae.

The attorneys for appellant in this case, and the chief justice of this court having consented to his so doing, this brief is presented to the court by the writer. It is due the court that he should state, as he now does, that his interest in the case arises from the fact that he has for many years been the general attorney of the Alabama and Vicksburg Railway Company, and that company with his approval has made several settlements with guardians of claims alleged to be due their wards, the validity of some of them depending upon a question of law presented by the record in this case.

Has a guardian, either by the common law or by statute, the power to compromise and settle claims and demands due his ward and acquit the debtor of or obligor to his ward of further liability to the ward? Of course collusive settlements made mala fide are not under consideration; but there is no pretense shown of record that the compromise settlements and acquittances pleaded in this cause were not made in perfect good faith and for a valuable consideration.

That guardians at common law had power to compromise and settle all claims due their wards including ex delicto demands, and discharge the debtor or obligor, is abundantly established by the authorities.

Schouler on Domestic Relations (1870 Edition), p. 463, announces in bold terms that guardians have the power, meaning at common law, to compromise claims due their wards. Perry on Trusts (3 Ed.), sec. 482, says: "A trustee (a guardian is a trustee) may generally, acting in good faith, release or compound a debt due to his trust estate." This, of course, is said of common-law power, for the author goes on to speak of statutes on the subject. In 3 Wait's Actions and Defenses, p. 549, it is said: A guardian "may compromise or release a debt due his ward, when he acts in good faith and for the ward's benefit," citing authorities.

"But in no event is an infant bound by the fraudulent compromise of his guardian."

In 12 Ruling Case Law, p. 1130, sec. 28, we are told that: "It is almost a necessary incident to the duty of the guardian to enforce his ward's rights and collect claims due to him that the guardian should have the power to compromise such claims if they are disputed or if it seems impossible to collect them in full. This power is universally recognized and sustained, if the compromise be a reasonable one and made in the honest effort to promote the ward's interest."

An excellent recent authority on the subject is the case of Nashville Lumber Company v. Barfield, 93 Ark. 353, s. c. 124 S.W. 785, s. c. 20 Am. and Eng. Ann. Cases, 968. The Arkansas supreme court's opinion is a clear and admirable statement of the law. It commends the above quoted paragraph from Ruling Case Law.

Guardians have not been deprived of their common-law power to compromise claims due their wards, whether arising ex contractu or ex delicto, by any statute of this state.

The only statutes now in force having any pertinency to the question under consideration are Mississippi Code 1906, section 2065, Hemingway's Code, section 1730, empowering the chancery court, on petition for that purpose, to authorize executors and administrators in advance to sell or compromise any claim not readily collectible belonging to the estates represented by them respectively; and Mississippi Code 1906, sec. 2421, Hemingway's Code, sec. 1982, making the section empowering the court to authorize in advance executors and administrators to compromise or sell claims due their estates applicable to guardians.

Our statutes, Mississippi Code 1906, sec. 2065, Hemingway's Code, sec. 1730, and Mississippi Code 1906, sec. 2421, Hemingway's Code, sec. 1892, empower the court to approve in advance compromises and settlements of claims arising ex delicto as well as those arising ex contractu.

The statutes are broad enough to embrace and surely do embrace claims of every character due wards. The word "claim" in the statute is of course used in its ordinary acceptation and meaning (Code 1906, section 903) and when so used it includes a demand arising ex delicto as well as ex contractu demands. If, however, the word "claim" has any technical meaning, it is defined by the supreme court of the United States as being: "The assertion of a liability (of another) to the party making it to do some service or pay a sum of money." Prigg v. Pennsylvania, 16 Pet. (U.S.) 539, 10 L.Ed. 1060.

All causes of action are embraced in the word "claim." Northwestern, etc., Bank v. State, 18 Wash. 73; s. c. 42 L. R. A. 33, s. c. 50 P. 586, 587. The word is synonymous with "cause of action." Ellis v. Flaherty, 65 Kan. 621, s. c. 70 P. 586, 587; Reddock v. State, 68 Wash. 329, s. c. 123 P. 450, 451, s. c. 42 L. R. A. (N. S.) 251; Newberry v. Wilkinson, 190 F. 62, 66, 67. The word embraces demands arising out of a tort. Bradley v. City of Eau Claire, 56 Wis. 168, s. c. 14 N.W. 10, 11. Of the word "claim" it is said: "It is well understood that a claim against the United States is a right to demand money from the United States." Hobbs v. McLean, 117 U.S. 567.

This definition of claim against the United States has been followed in later Federal cases as in Milliken v. Barrow, 65 F. 888, 894. The compromises, settlements and acquittances pleaded in this case cannot be collaterally attacked. The chancery court had jurisdiction of the parties and of the subject-matter presented by its record.

Nor can the effect of the chancery court proceedings and decrees be escaped by plaintiff's claiming that the court in the rendition of its decrees was exercising a special, limited and statutory jurisdiction, and that its records (if it be true) do not show all the facts necessary to its exercise of jurisdiction over the subject-matter.

When it is said that compromises and settlements made by a guardian fraudulently are not under consideration, it is not intended by any means to admit that where the party with whom the compromise is made has acted in good faith that his acquittance and discharge is not perfectly valid. On the contrary, his acquittance and discharge has full legal effect.

It is respectfully urged that the court below erred in adjudging the compromises, settlements and discharges pleaded ineffectual and void.

N. T. Currie, Currie & Currie, and D. M. Watkins, for appellees.

The right of action alleged in the declaration was created and the remedy provided by chapter 214, House Bill No. 8, of the Acts of the legislature of the state of Mississippi, passed in 1914, and approved February 6, 1914.

The right of action is, therefore, statutory and created by the following provisions of said act: "Whenever the death of any person shall be caused by any real wrongful or negligent act, or omission, or by such unsafe machinery, way or appliances as would, if death had not ensued, have entitled the party injured, or damaged thereby to maintain an action and recover damages in respect thereof, and such deceased persons shall have a widow or children, or both, or husband or father, or mother or sisters, or brother, the person or corporation, or both that would have been liable if death had not ensued, and the representatives of such person shall be liable for damages, notwithstanding the death, and the fact that death was instantaneous shall, in no case affect the right of recovery." This act not only created the right of action. It went further than that. It created the remedy.

The whole subject-matter of this suit is statutory. The statute creates: (A) The right of action; (B) The remedy; (C) Confers jurisdiction of it upon the circuit court;

(D) Designates the personal injuries to which it shall apply; (E) Exempts from the debts and liabilities of the...