Missouri-Kansas-Texas R. Co. of Texas v. Pluto

• Decision Date: 05 November 1941
• Docket Number: No. 1866-7659.,1866-7659.
• Citation: 156 S.W.2d 265
• Parties: MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS et al. v. PLUTO.
• Court: Texas Supreme Court

Page 265

156 S.W.2d 265

MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS et al. v. PLUTO.

No. 1866-7659.

Commission of Appeals of Texas, Section B.

November 5, 1941.

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

Action by Julius Pluto against the Missouri-Kansas-Texas Railroad Company of Texas and others to recover damages for injuries received by plaintiff in a collision between an automobile in which he was riding and a train of defendants' predecessor and, in the alternative, a bill of review to set aside a portion of a judgment rendered in a prior case. To review a judgment of the Court of Civil Appeals, 130 S.W.2d 1048, which reversed a judgment for plaintiff and remanded the cause for a new trial, the parties prosecuted writs of error.

Judgment of Court of Civil Appeals reversed, and judgment of trial court affirmed.

Chas. C. Huff, of Dallas, and Naman, Howell & Boswell and W. W. Naman, all of Waco, for plaintiffs in error.

Vinson, Elkins, Weems & Francis and Frank G. Dyer, all of Houston, and Touchstone, Wight, Gormley & Touchstone, of Dallas, amici curiæ.

J. D. Williamson, Allan V. McDonnell, and Tom M. Pogue, all of Waco, for defendant in error.

SLATTON, Commissioner.

The 19th district court of McLennan County rendered judgment on a special issue verdict against Missouri-Kansas-Texas Railroad Company of Texas in the sum of $10,000, which judgment was reversed and the cause remanded by the Honorable Court of Civil Appeals at Waco. 130 S. W.2d 1048. The parties prosecuted writs of error to this court. Both writs were granted.

Julius Pluto was injured in an accident on the 19th day of April, 1916, as a result of a collision between an automobile driven by his father and a train operated by the railroad company. The mother and baby sister of Julius were killed. The father and other brothers and sisters of Julius were injured as a result of the collision. Counsel was employed by the father of Julius. The claim agent of the railroad company negotiated the settlement with the father and the two agreed upon a lump sum settlement on the 23d day of June, 1916. Suit was filed in the 19th district court on the 24th day of June, 1916. Judgment was entered on the same day and provided for a recovery on behalf of George D. Pluto for himself and as next friend for his minor children, naming them, in the sum of $12,000. It was adjudged that counsel for Pluto be paid out of said sum $2,400. The remaining $9,600 was apportioned by the court, $5,100 to George D. Pluto and $750 each to the six minor children.

The present suit was filed in 1933 before Julius Pluto became of age, by next friend. Julius reached his majority before trial and continued the suit in his own behalf. His theories of recovery were cast in two counts. The first count was upon the theory that the judgment entered on June 24, 1916, was ambiguous and did not adjudicate the claim of Julius Pluto for personal injuries received by him in the collision. The second count was upon the theory that the judgment of 1916 should be set aside because the rights of Julius Pluto, a minor, were not protected, in that the trial court was not advised of the serious and permanent nature of the personal injuries suffered by the minor, Julius Pluto; that if counsel representing the Plutos had known of such injuries the settlement would not have been consummated; that the agent negotiating the settlement for the railroad company knew of the seriousness and permanency of the personal injuries suffered by the minor Julius; that Julius was awarded nothing for his personal injuries; that his father as next friend, in virtue of his adverse interest in the suit to that of Julius, could not properly represent the minor's interest in the entry of the agreed judgment; that the court was not advised in the premises of the serious and permanent injuries suffered by Julius Pluto and thereby could not properly adjudicate his rights, and the entry of such judgment was fraudulent as to said minor. The company pleaded the consent judgment as res adjudicata and the usual defenses in tort actions.

The father of Julius Pluto testified to facts (contrary to the contract of settlement and the agreed judgment) to the effect that said contract and judgment were not intended by the parties to compensate Julius for personal injuries sustained by him, but "was a compromise for the loss of my wife and baby". He further testified that "in the court proceedings in relation to the entering of judgment in said suit there was no evidence offered that the minor Julius Pluto had sustained injuries of a personal and permanent nature and no injuries were discussed in the presence of the court or the judge who approved the settlement." Counsel who represented the father for himself and as next friend testified that at the time of entering into the contract and rendition of the consent decree he did not know that Julius was suffering serious and permanent personal injuries and that no evidence of such injuries was submitted to the court when the compromise judgment was rendered. He further testified that the father advised him as to the injuries sustained by the children in the collision. The evidence shows that the agent representing the railroad company visited the father of Julius while he and his children were in the hospital shortly after the accident and continued to visit him each day for about a month. The pleadings on behalf of the Plutos which were filed in the suit in which the compromise was approved were prepared by counsel representing the railroad company as a convenience to counsel representing the Plutos. Evidence is in the record to the effect that Julius Pluto suffered serious and permanent injuries as a result of the collision and was suffering such injuries during the time of the negotiations of the settlement and at the time the court approved the same and has continuously suffered serious and permanent injuries since the accident. The record shows without dispute that the father, while acting as next friend, was interested in the settlement agreement adversely to his children. It is also shown without dispute that some of the minor children (brothers and sisters of Julius) were not injured in the collision and in the judgment were awarded the same amount as was Julius, i. e., $750.

The jury found in part as follows: That it was not the intention of the parties to the settlement agreement to compensate Julius Pluto for personal injuries sustained by him; that the injuries of Julius Pluto were not fully disclosed to the court at the time of the rendition of the judgment, and that the failure to disclose to the court the injuries sustained by Julius was the result of negligence on the part of George D. Pluto; that the agent representing the railroad company at the time of the rendition of the judgment knew or had reasonable cause to know the true physical condition and the injuries of the minor Julius Pluto; that the judgment rendered on the 24th day of June, 1916 was against the interests of the minor Julius Pluto; that the operators of the train were guilty of negligence and awarded damages for personal injuries in the sum of $10,000.

The Honorable Court of Civil Appeals , held that "evidence aliunde the record was not admissible to either vary or contradict or explain the terms of the judgment," and "that the evidence does not raise either the issue of * * * mistake or * * * fraud" where were included in special issues numbers 18, 19, 20 and 21. The law applicable to the facts of this case, which are shown without dispute and found by the jury, is stated in the case of Greathouse v. Ft. Worth & Denver City Ry. Co., Tex.Com. App., 65 S.W.2d 762, 763, loc. cit. 765: "If, therefore, it be shown that the minor's case was not properly laid before the court, by collusion, neglect, or mistake, a new bill may be brought in behalf of the infant, and if it be established that the judgment was against the interests of the minor, and the facts which made it so were not disclosed to the court, and the court was therefore induced to approve the agreement for judgment, the minor may, as between the parties to the judgment, have the same set aside by a bill of review. Day v. Johnson, 32 Tex.Civ.App. 107, 72 S.W. 426; Schneider v. Sellers, 25 Tex. Civ.App. 226, 61...