Leslie v. The Proctor & Gamble Manufacturing Company

• Citation: 169 P. 193,102 Kan. 159
• Decision Date: 08 December 1917
• Docket Number: 21,308
• Court: United States State Supreme Court of Kansas
• Parties: ALFRED LESLIE, Appellee, v. THE PROCTOR & GAMBLE MANUFACTURING COMPANY, Appellant

169 P. 193

102 Kan. 159

ALFRED LESLIE, Appellee, v. THE PROCTOR & GAMBLE MANUFACTURING COMPANY, Appellant

No. 21,308

Supreme Court of Kansas

December 8, 1917

Decided July, 1917.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

SYLLABUS

SYLLABUS BY THE COURT.

1. MINOR SON--Personal Injuries--Compromise and Settlement--Authority of Parent--Judgment by Consent. Where a minor has sustained personal injuries, which his father and the wrongdoer settled for an inadequate sum, such minor on attaining his majority may bring an action against the wrongdoer for his injuries, notwithstanding the settlement negotiated by his father.

2. SAME. An inadequate settlement by a father for his minor son's injuries does not bar an action by the son on attaining his majority, although the father and the wrongdoer had, by agreement, filed an action in a city court (like that of a justice of the peace) for the agreed sum, and judgment had been taken thereon against the wrongdoer without evidence, without judicial consideration, and with only a perfunctory entry of the judgment by the city court for the agreed sum.

3. JUDGMENT IN CITY COURT--Extrinsic Fraud--Jurisdiction of District Court to Set Aside. In the circumstances narrated in paragraphs 1 and 2 of the syllabus, it was unnecessary for the son to give any countenance to the judgment in the city court nor to appeal from that judgment; he could properly proceed by an independent action in a court having general jurisdiction, both at law and in equity, and have the judgment of the city court set aside as a pertinent incident to the securing of adequate redress for his injuries.

4 MINOR -- Injuries--Settlement by Parent--Judgment by Consent--Rights of Minor Son on Attaining His Majority--Pleadings. On attaining his majority the plaintiff brought an action in the district court in which his petition, in substance, alleged that when he was seventeen years old he sustained an injury to his hand while in defendant's employ and through the latter's negligence; that his father without authority settled plaintiff's claim for damages for $ 300--a grossly inadequate sum; that an attorney employed by defendant filed an action against the defendant in a city court for the agreed amount; that another attorney employed by defendant confessed judgment for the agreed amount; that there was no trial, no evidence, no judicial consideration of the facts, nor of the propriety or adequacy of the settlement. All the pertinent facts were pleaded. Held, that a demurrer to such a petition was properly overruled.

5. SAME--Action in District Court--Continuance Pending Appeal. When a litigant has determined to bring an intermediate appealable order of the district court to the supreme court for review, he commits no impropriety and loses no rights by suggesting to the district court the advisability of continuing the cause in the trial court until the supreme court determines the question presented by the appeal.

C. Angevine, of Kansas City, for the appellant.

J. O. Emerson, and David J. Smith, both of Kansas City, for the appellee.

OPINION

DAWSON, J.:

The plaintiff brought this action for damages sustained while in defendant's employment by an injury to his hand. The petition alleged that in 1912, when plaintiff was a minor about seventeen years old, he was employed in defendant's packing house; that while so employed he slipped and fell on a wet and oily floor and his hand was caught and crushed in a box-nailing machine; that the machine was defective, and had no fender or guard about it; and that it was practical to have such a guard. It was also alleged that in 1913 the defendant made an agreement with plaintiff's father whereby defendant was to pay plaintiff and his father the sum of $ 300 in settlement of plaintiff's claim for the injuries sustained by him, and that a judgment for that agreed sum should be rendered for plaintiff and against the defendant in a city court (like that of a justice of the peace) in Kansas City, Kan. That pursuant thereto, the defendant's attorney caused a petition to be drawn, entitled "Alfred Leslie, a minor under the age of twenty-one, by and through his father as guardian and next friend, Willey Leslie, plaintiff, versus The Proctor & Gamble Manufacturing Company, a corporation, defendant," wherein it was alleged that the plaintiff was entitled to recover from the defendant the sum of $ 300 for the injuries to the plaintiff. The defendant employed another attorney to sign the said petition as attorney for the plaintiff, but the said attorney was not in fact attorney for the plaintiff, but was one of the attorneys for the defendant. The petition continues:

"That the defendant, by its attorneys . . . caused the . . . petition to be filed in the city court, . . . and caused a judgment to be entered . . . in favor of the plaintiff Alfred Leslie and against [itself] . . . for $ 300.00. . . .

"The aforesaid judgment was entered solely by agreement and consent of the defendant and Willey Leslie; no trial was had before the court, and no evidence was offered or presented to the court. No hearing or inquiry was made by the court into the merits of the case or of the rights of the plaintiff, and no judicial examination of the facts was made by the court to determine whether the settlement was reasonable and proper. . . . At the time of said proceeding Willey Leslie was not the legal guardian of Alfred Leslie, nor was he appointed by the said city court as next friend of Alfred Leslie, nor did he qualify as next friend of Alfred Leslie in the said action in the city court.

"The plaintiff has been and is greatly aggrieved and hindered by the said settlement and judgment in the city court; said settlement was not fair to the plaintiff, and plaintiff was thereby deprived of his substantial rights, and has been and will be defrauded out of a large sum of money, to wit, three thousand dollars ($ 3,000.00), which he should recover from the defendant unless said settlement and judgment is set aside. The said proceeding and judgment were illegal, null and void and should be vacated and held for naught. As against said judgment the plaintiff has no adequate remedy at law. . . .

"The plaintiff Alfred Leslie became twenty-one years of age August 21st, 1916, and he disaffirmed the aforesaid settlement for three hundred dollars ($ 300.00) within a reasonable time after he became of age, by bringing this suit on the 12th day of September, 1916.

"The plaintiff has not had any power or control of any part of the Three Hundred Dollars ($ 300.00) paid on said pretended settlement, since the plaintiff arrived at the age of majority."

Defendant's demurrer to plaintiff's petition was overruled, and the correctness of this ruling is the subject of this review.

The appellee raises a preliminary question--that defendant cannot have this ruling determined at this time because its counsel filed a motion in the district court alleging that it had appealed to the supreme court on the ruling on the demurrer and that--

"This defendant therefore respectfully requests this court to make...