Greathouse v. Fort Worth & Denver City Ry. Co.

• Decision Date: 28 November 1933
• Docket Number: No. 1398-6019.,1398-6019.
• Citation: 65 S.W.2d 762
• Parties: GREATHOUSE v. FORT WORTH & DENVER CITY RY. CO.
• Court: Texas Supreme Court

65 S.W.2d 762

GREATHOUSE v. FORT WORTH & DENVER CITY RY. CO.

No. 1398-6019.

Commission of Appeals of Texas, Section B.

November 28, 1933.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by J. D. Greathouse, a minor, by and through his guardian, H. L. Hunter, against the Fort Worth & Denver City Railway Company. Judgment for plaintiff was reversed and rendered by the Court of Civil Appeals [41 S.W.(2d) 418], and plaintiff brings error.

Judgment of Court of Civil Appeals reversed, and cause remanded to Court of Civil Appeals.

E. W. Napier, of Wichita Falls, for plaintiff in error.

Carrigan, King & Surles, of Wichita Falls, and Thompson & Barwise and Bert Walker, all of Fort Worth, for defendant in error.

RYAN, Judge.

This suit was instituted by H. L. Hunter, as guardian for J. D. Greathouse, a boy six years old, for the purpose of setting aside an agreed judgment and to recover damages accruing to said minor by reason of the alleged wrongful killing of his mother, Mrs. L. V. Thomas, by one of the defendant in error's railway trains at a crossing in Iowa Park, Tex., about November 3, 1928.

It was charged that just prior to her death, Mrs. L. V. Thomas employed a drayman to move her furniture from one part of the town to another, and while crossing the railroad track on a public street, the truck upon which she was riding was struck by a fast moving passenger train, resulting in her being injured to such an extent that she died immediately thereafter.

Various grounds of negligence were alleged, and damages prayed for in the total sum of $27,500.

It was averred in the petition that Mrs. Lizzie Greathouse, the mother of Mrs. L. V Thomas, was also injured in the collision, as a result of which her mental faculties were impaired; that thereafter on November 27, 1928, a suit was instituted by Mrs. Lizzie Greathouse, as next friend for and in behalf of the minor, J. D. Greathouse, against the railway company for damages resulting to him from the alleged wrongful killing of his mother, and on December 28, 1928, an agreement was had between Mrs. Lizzie Greathouse and the defendant railway company through its claim agent, O. W. Portman, by the terms of which the company agreed to pay to Mrs. Lizzie Greathouse the sum of $2,700 in full settlement of her claim against the company for the injuries to herself and for such further damages as she might be entitled to by reason of her daughter's death and in full settlement of all claims and causes of action the boy (J. D. Greathouse) might have, and it was understood that Mrs. Lizzie Greathouse should apportion the said $2,700 between herself and the boy in any manner that she might see fit.

It was further averred that she apportioned $1,200 to herself and $1,500 to the boy and his attorneys, and in accordance therewith and on the same day, the parties appeared before the district court, offered proof of a settlement of the boy's cause of action for the sum of $1,500, $900 of which was to be paid to the boy and $600 to be paid to the attorneys who represented him and the grandmother, Mrs. Lizzie Greathouse. The entire attorney's fee was paid out of the boy's part. It is charged in the petition that no evidence whatsoever was offered as to the nature of the cause of action upon which the court might determine whether the settlement was fair, other than that of Mrs. Lizzie Greathouse to the effect that she had made the settlement and it was satisfactory to her, but the court was not informed as to her interest in the suit, nor did the court know that $2,700 was paid to her with the understanding that she could retain for herself as much thereof as she wished, whereupon the court approved such settlement and entered judgment awarding $900 to the boy and $600 to certain attorneys, naming them.

It was further charged that Mrs. Lizzie Greathouse, who instituted the suit as next friend of the minor and in which suit the agreed judgment was entered, was interested adversely to the minor, was mentally incompetent, and was induced to agree to the same by fraudulent representations made to her by the company's agents, and that the settlement so made was an improvident one for the minor.

On December 31, 1928, the county judge appointed F. G. Payne as temporary guardian of the minor's estate, but his resignation, filed on January 25, 1929, was approved on the same day. H. L. Hunter was on May 14, 1929, appointed temporary guardian, made permanent on June 14, 1929. On January 1, 1929, E. W. Napier, Esquire, filed a motion as amicus curiæ, in the district court, to vacate the agreed judgment on the grounds that the settlement was improvident, that the next friend was so mentally deficient as to be incapable of acting as such, and because the minor had a guardian, F. G. Payne, the only person authorized to act for him and administer his affairs. This motion was overruled on January 5, 1929.

Said agreed judgment and the order overruling Mr. Napier's motion were had during the December, 1928, term of the district court, which expired by force of the statute on March 2, 1929.

The present suit was instituted in June, 1929, and trial had before a jury, who, in answer to special issues submitted to them, found: That the train in question approached the crossing immediately before the collision at the rate of 50 miles per hour, which was negligence and a proximate cause of said collision; that the train operatives failed to blow the whistle for said crossing at a point not nearer than 1,320 feet therefrom, and failed to exercise ordinary care to blow the whistle as the train approached said crossing, at a time and in such manner as was reasonably calculated to give timely warning to persons, using said crossing, of the approach of said train; that said crossing, immediately before the collision, was more than ordinarily hazardous by reason of the conditions then existing; that an ordinarily prudent person would have maintained at said crossing, at the time of the collision, and immediately before, a flagman, electric bell, wigwag, or other active signaling device, and the failure to maintain such flagman or signaling device was a proximate cause of the collision; the jury found for the company on the issue of discovered peril.

On the issues submitting the question of fraud on the company's part, the jury found that the claim agent, prior to the time that the settlement agreement was made, represented to Mrs. Lizzie Greathouse that he had investigated and was familiar with the facts in the case; that he had talked to the company's attorneys and stated to her that she could not recover anything in court; that such representations were made for the purpose of inducing Mrs. Greathouse to aid him in procuring a settlement of plaintiff's cause of action; that such representations were not true, but were believed and relied upon by Mrs. Greathouse in making the settlement on behalf of plaintiff.

The jury found further that Mrs. Greathouse, at the time she made the settlement agreement on behalf of plaintiff, did not have sufficient mental capacity to appreciate and understand the business in which she was engaged; that such settlement was an improvident one; rejected the defenses of contributory negligence pleaded by the company, and assessed the damages in favor of the minor in the sum of $15,000.

Judgment was accordingly rendered, setting aside and vacating the compromise agreement and judgment of December 28, 1928, and for the recovery of $15,000 less a credit of the $1,500 awarded in the original suit which the company had paid.

The Honorable Court of Civil Appeals concluded that the former judgment was res judicata and the settlement thereof a bar to the present suit, that an instructed verdict for the defendant should have been given, and for that reason reversed the trial court's judgment and rendered judgment in favor of the defendant company. 41 S.W.(2d) 418.

The Court of Civil Appeals held: (a) That the minor plaintiff's failure to appeal from the original judgment operated as a bar to a subsequent action to set it aside on equitable grounds; (b) that the action of the amicus curiæ in filing a motion to vacate the original judgment and his failure to appeal from an adverse ruling thereon was binding on the minor; (c) that because the guardian, appointed as such by the county court after the judgment was rendered, and who was not a party thereto, took no steps to set the judgment aside during the term of court at which it was rendered, or appeal therefrom, the minor was barred from maintaining this suit in the absence of a sufficient excuse shown for such failure of the guardian; (d) that whether such a sufficient excuse existed was an issue of fact to be submitted to the jury; (e) that the mental incapacity of the next friend could not be a ground for vacating a former agreed judgment unless it could be said that but for such incapacity she would not have agreed thereto.

Opinion.

1. The statute (article 1994, Rev. Stat. 1925) provides that minors having no legal guardian may sue and be represented by "next friend," who shall have the same rights as guardians, and may with the approval of court compromise suits and agree to judgments, which, when so approved by the court, are binding and conclusive; but this rule is of course subject to the further rule that any such judgment may be directly attacked for fraud, collusion, or neglect. Cannon v. Hemphill, 7 Tex. 184; Schneider v. Sellers, 25 Tex. Civ. App. 226, 61 S. W. 541; Day v. Johnson, 32 Tex. Civ. App. 107, 72 S. W. 426.

This is a direct attack upon the judgment. Stephens v. Hewett, 22 Tex. Civ. App. 303, 54 S. W. 301; McMurray v. McMurray, 67 Tex. 665, 4 S. W. 357; Murchison v. White, 54 Tex. 78.

The bringing of a suit by next friend for a minor in no way changes his status; his disabilities are not removed or suspended by bringing such suit (Galveston, H. & S. A. R. Co. v. Washington,...