Hudson v. Thies

• Citation: 182 N.E.2d 760,35 Ill.App.2d 189
• Decision Date: 16 May 1962
• Docket Number: Gen. No. 10389
• Parties: Dean HUDSON, Plaintiff-Appellant, v. Ann THIES, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 760

182 N.E.2d 760

35 Ill.App.2d 189

Dean HUDSON, Plaintiff-Appellant, v. Ann THIES, Defendant-Appellee.

Gen. No. 10389.

Appellate Court of Illinois, Third District.

May 16, 1962.

Rehearing Denied June 15, 1962.

Garman, Greanias & Owen, Decatur, for appellant.

J. E. Horsley W. E. Larrabee, of Craig & Craig, Mattoon, Paul Taylor, Effingham, for appellee.

REYNOLDS, Justice.

This is a personal injury suit growing out of injuries sustained by the plaintiff when struck by an automobile driven by the defendant in the Village of Cowden, Shelby County, Illinois, on September 2, 1944. The plaintiff was then seven years of age, having been born April 19, 1937. Plaintiff reached his majority April 19, 1958, and on November 20, 1958, some seven months later, brought suit against the defendant, claiming defendant negligently operated her automobile when he was injured in 1944. Defendant filed her answer admitting the plaintiff was struck by an automobile driven by her, denying negligence and claiming contributory negligence on the part of the plaintiff. The defendant also filed her special defense reciting the appointment of Kermit Hudson as guardian of the plaintiff; the filing of petition to compromise and settle the claim of the minor; the order of the County Court authorizing such compromise and settlement for the sum of $1262.75; the payment of said sum and the execution of a release by the guardian of all claims. To this special defense, the plaintiff filed his reply claiming that there was a purported order authorizing the guardian to compromise and settle the claim, but such order was void as to the plaintiff because the settlement was in fact a settlement between Kermit Hudson, father of the plaintiff for medical expenses arising out of his son's injuries, and the insurance company of the defendant; that no payment was made and none ever offered to settle any claims the plaintiff might have had for his own disability, and that it was not the intention of any of the parties involved in the County Court proceeding to establish an estate for Dean Hudson, a minor. The reply further alleges that the County Court of Shelby County was not advised of the serious and extensive injuries sustained by the plaintiff; that the sum paid was so grossly inadequate as to be without valid consideration and to constitute a fraud on the minor's rights, and that Kermit Hudson was not represented by counsel in the county court proceedings. The defendant filed her sur-reply denying the affirmative matters contained in the plaintiff's reply.

The matter was tried before a jury on the issue presented by the defendant's affirmative defense and plaintiff's reply. The jury returned a verdict in favor of the plaintiff and against the defendant. The post-trial motion of the defendant for a judgment notwithstanding the verdict was granted and the jury's verdict was set aside and judgment entered for the defendant notwithstanding the verdict. The motion for a new trial was denied. From this judgment the plaintiff appeals.

The sole question raised by this appeal is the sufficiency and legality of the release given by Kermit Hudson, guardian of Dean Hudson, then a minor, in full settlement of all claims against the defendant growing out of the injuries sustained by Dean Hudson when struck by an automobile driven by the defendant on September 2, 1944. The plaintiff seeks to have this release held invalid.

In considering this cause, there is little dispute as to the evidence. The plaintiff, then a seven year old child was struck by an automobile driven by the defendant Ann Thies. There was evidence from three or four witnesses to the effect that the defendant was driving slowly. Ann Thies testified that the child ran from behind a truck into the path of, or into her car. There were others in the Thies car but they did not see the plaintiff but heard the thud when he was hit. All agreed that Mrs. Thies stopped quickly. The evidence showed that the plaintiff suffered a skull fracture, multiple fractures in one leg, fracture in the other, and an injury to the right foot which was discovered some time later. He was placed in a cast from the waist down, all the way to the foot on the right leg and to the knee on the left leg with a board between the two knees. He did not attend school the year 1944-1945. When examined by Dr. Arthur Sweet, physician and surgeon of Decatur, Illinois on December 1, 1959, Dr. Sweet found he had 75% disability of the right leg. His right leg was deformed so that he wore a shoe built up to compensate for the deformity.

The evidence is undisputed that neither the guardian, Kermit Hudson, or the minor Dean Hudson, was represented by counsel at the hearing before the County Judge, and that the petition for guardianship, the bond, and the petition to settle were prepared by Mr. John J. Baker, attorney for Hawkeye Security Insurance Company, the insurance carrier of the defendant. It is further not disputed that this attorney's fee and the court costs were paid by the insurance company. The amount paid for the release is not disputed, or the fact that almost all of the amount of money paid was to repay the father Kermit Hudson for out-of-pocket expenses in connection with hospital and medical treatment of the minor, occasioned by his injuries. The hearing before the County Judge is not in dispute although the witnesses were somewhat vague as to certain points. It appears that the injured minor was not in court and the county judge did not see him at any time. The county judge testified, but he did not remember the extent of the testimony before him, especially as to the injuries sustained by the minor, but his recollection was, that the questions and answers followed the substance of the petition. There is testimony in the record from several experienced lawyers practicing in the vicinity of Shelby County, Illinois as to the practice common in matters of this kind in 1946, and the practice followed in this case as to compromise and settlement of the claim of the plaintiff seems to have been the practice followed in similar cases at that time in comparable counties in the area. It further appears that the guardian Kermit Hudson was examined in open court as to the matters in the petition before the county judge entered an order authorizing the release.

Plaintiff in his appeal says that this is a case of first impression and that there is no case in Illinois that has passed on the question of the validity of a probated settlement such as this, except the case of Shine v. Wabash Railroad Co., 8 Ill.App.2d 521, 132 N.E.2d 41, which held that a settlement was void because approved in a court which did not have jurisdiction of the minor. The plaintiff urges the court to set up minimum standards for the settlement of claims of minors for personal injuries that will stand as guide lines for the future. And the plaintiff contends that in this case, although no one has been charged with fraud, either actual or intentional, that the circumstances surrounding the settlement were such as amounted to fraud on the minor's rights.

Plaintiff contends the trial court committed reversible error in setting aside the verdict of the jury, contending there can be fraud inferred or presumed. This theory is based upon the contention that there was a question of fact involved. The case of Indiana D. & W. Ry. Co. v. Fowler, 201 Ill. 152, 66 N.E. 394 cited by plaintiff was a case where Fowler, an illiterate, was induced to sign a purported release of all claims for damages for personal injuries sustained by Fowler in a wreck. The court in that case held that the question whether the release was executed by Fowler with full knowledge of its purport and under circumstances that would bind him, was one of fact and a question for the jury. In Chicago W. D. Ry. Co. V. Mills, 91 Ill. 39, at page 43, cited by plaintiff, the question was one of the mental competency to execute a release and the court there held there was a conflict as to fact and the matter should have been submitted to a jury. The plaintiff also cites the case of Bowman v. Illinois Central R. R. Co., 11 Ill.2d 186, 142 N.E.2d 104, a F. E. L. A. case, where the court in discussing the validity of a release given to the railroad company, held that in passing on the validity of such release, when assailed, all surrounding conditions should be fully developed and the relative attitudes of the contracting parties clearly shown, so that the jury in the clear right of the whole truth may rightly decide which story bears the impress of verity. In these three cases there is a clear question in each as to the mental capacity or understanding of the party executing the release and this question was presented on the trial and became an issue of fact which would require the verdict of a jury. In this case, however, no question of fact is presented that required a jury. There is no evidence in this case that raises the question of competency on the part of the guardian; there is no evidence of a misunderstanding by anyone; there is no evidence of any fraud, actual or constructive. It may be conceded, that in view of the ultimate physical condition of the plaintiff, with 75% physical impairment of the right leg of the plaintiff, that the settlement was inadequate, but the evidence on the part of both parties fails to disclose any misunderstanding, inability or incompetency on the part of the parties concerned, to enter into and effect a release. We see no merit in this contention of the plaintiff.

Without contending there was actual fraud in the negotiation and consummation of the settlement between Kermit Hudson as guardian and the defendant, the plaintiff cites some authorities as to constructive fraud. There can be no quarrel with the law as laid down in those cases, but they are not applicable to the cause here.

Next, the plaintiff contends that the settlement of a minor's cause of...