Moebius v. McCracken

• Decision Date: 03 January 1933
• Docket Number: Nos. 52,53,June Term, 1932.,s. 52
• Parties: MOEBIUS v. McCRACKEN et al.
• Court: Michigan Supreme Court

261 Mich. 409

246 N.W. 163

MOEBIUS

v.McCRACKEN et al.

Nos. 52, 53, June Term, 1932.

Supreme Court of Michigan.

Jan. 3, 1933.

Appeal from Circuit Court, Wayne County; Harry J. Dingeman, Judge.

Two suits, one on the chancery and the other on the law side of the court, brought by Dorothy Moebius, by her next friend, Stella Moebius, against Alexander McCracken and another, doing business as the Duke Cartage Company, were heard together. Motions to dismiss the bill of complaint and the declaration were granted, and plaintiff appeals.

Orders dismissing the bill and declaration set aside, and cases remanded.

Argued before the Entire Bench.Monaghan, Crowley, Reilley & Kellogg, of Detroit (Edward T. Kelley, of Detroit, of counsel), for appellant.

Carney D. Matheson, of Detroit, for appellees.

BUTZEL, J.

On October 25, 1923, Dorothy Moebius, then twelve years of age, while riding on a bicycle on the streets of Toledo, Ohio, of which she was a resident, was run down by a truck of defendants Alexander McCracken and Coral W. Duke, doing business as Duke Cartage Company in Detroit, Mich. Her left leg was partially crushed by the truck wheels. Claiming negligence on the part of defendants, suit was brought against them in the common pleas court for Lucas county, Ohio, by ‘Dorothy Moebius, an infant twelve years of age, by William Moebius, her father and next friend,’ as appears in the caption of the pleadings and judgment. The case was removed to the Federal District Court for the Northern District of Ohio, Western Division, on January 16, 1924. On November 12, 1924, the jury was impaneled, and, as stated in the court records, ‘It appearing to the Court that the parties herein have arrived at an agreement of settlement herein in the sum of $4,500,’ a verdict was directed and judgment entered, and such judgment thereupon satisfied and discharged by the attorney for ‘WILLIAM MOEBIUS NEXT FRIEND.’ THERE IS no Showing In the record that the court inquired into or considered the fairness of the settlement, nor was there any order entered in either court appointing William Moebius next friend. The judgment itself, except in the caption, does not contain any specific finding that William Moebius was next friend.

On May 5, 1931, over six years later, the two instant suits, one on the chancery and the other on the law side of the Wayne circuit court, were begun against defendants by ‘Dorothy Moebius, by her next friend, Stella Moebius.’ Proper orders appointing Stella Moebius next friend were duly entered. In the chancery suit, plaintiff represents that she is nineteen years of age, a resident of Toledo, and that she sustained her injuries through the negligent operation of defendants' truck; that she has endured very great suffering, and has been put to a very large expense over a period of years; that she was confined to a hospital for over eight months, and then was obliged to visit it frequently for several years thereafter for treatment; that she has required constant medical attention for over five years; that she now has a deformed leg, and that she will always be lame and walk with a limp; that there is no flesh on the leg where it was broken, so that the skin which has been grafted on the injured part breaks at the slightest shock, and that sores form which are slow in healing and require the care of a physician continually. She claims damages in the amount of $75,000. She further asks that the entire proceedings in the Ohio Federal court should be set aside and held to be null and void on the following grounds: That William Moebius had no legal right or authority to represent her; that the amount awarded was wholly inadequate to compensate her for her injuries and expenses, and that the court did not in any manner examine into the merits of the claim, hear or examine witnesses, take testimony, nor investigate the extent of her injuries or her expenses; that it did not find the alleged compromise was for her best interests, as required by law; and that the court, upon being informed of the alleged compromise and settlement, thereupon, without investigation, directed a verdict upon which judgment was entered.

She specifically seeks to have the Ohio suit declared a nullity and to enjoin defendants from claiming that the judgment entered therein is a bar to her recovering the full amount of damages claimed in the companion suit brought on the law side of the court. The two cases were heard together and motions made to dismiss the bill of complaint and the declaration on the ground that the Michigan court had no jurisdiction of the subject-matter, that the cause of action was barred by the prior judgment, and that the claim or demand in plaintiff's pleading had been released. An order was entered by the trial court granting the motions, without prejudice to the rights of plaintiff to bring suit in a proper tribunal.

Two questions are presented on this appeal: One, whether the proceedings in the trial court were proper and are binding on plaintiff; and, secondly, if they are not, can a Michigan court set aside a judgment rendered in the federal court in Ohio, through its power over the parties?

[1] Inasmuch as the cases were disposed of on motion to dismiss, we must, in considering these questions, assume that the allegations in the bill of complaint are true. If the judgment had been rendered by a lower court of this state under like conditions and facts similar to those alleged in the bill of complaint, it would be vacated. In Palazzolo v. Judge of Superior Court, 234 Mich. 547, 549, 208 N. W. 677, where the next friend of an infant plaintiff in a personal injury case stipulated that a judgment for a certain amount be entered, the judgment was set aside, even though the court made some inquiry into the extent of the injuries of plaintiff. In the instant case, no testimony of any kind was taken. To like effect are Metzner v. Newman, 224 Mich. 324, 194 N. W. 1008, 33 A. L. R. 98;Dudex v. Sterling Brick Co., 237 Mich. 470, 212 N. W. 92, 94.

Plaintiff contests the validity of the Ohio judgment on the ground that there was no formal appointment of a next friend by a court. In Sick v. Michigan Aid Association, 49 Mich. 50, 12 N. W. 905, it was held that in a suit on an insurance policy, begun in the name of the widow and her children, all of whom were insured thereby, the failure of the widow to be appointed next friend was not deemed sufficient cause to nullify the judgment. We believe, however, that under section 14037, C. L. 1929, enacted after the decision, a formal appointment of a next friend should be required so that an investigation may be made, and, if it is deemed necessary by the court making the appointment, the execution of a proper bond ordered for the protection of the infant. In Ohio, a formal appointment is not necessary. Section 4998, Ohio Rev. Stat. (1898). Also see Tuttle v. Furi, 22 Ohio Cir. Ct. R. (N. S.) 388, 43 Ohio Cir. Ct. R. 626.

In arriving at our conclusions as to the effect of a consent judgment entered without examination on the merits, we must rely upon the law of Ohio to determine the regularity of the Ohio judgment. Unfortunately, we have not been able to find any cases in which the question was passed upon by the Supreme Court of Ohio. We must therefore look to the statutes and the decisions of the inferior and intermediate appellate courts of Ohio, as well as those of the higher courts of this and other states. Our attention is called to the Ohio statute set forth in section 10933 (Page's Code), which provides as follows: ‘Where personal injury is caused to a minor by wrongful act, neglect or default, such as would entitle the minor to maintain an action and recover damages therefor, the guardian of such minor is authorized to adjust and settle said claim with the advice, approval and consent of the probate court. * * *’

While this section is not directly applicable to next friends, it nevertheless shows the public policy of the state in regard to protecting the rights of minors. In Sawitzke v. Peters Mach. & Mfg. Co., 35 O. C. D. 600, where the mother, as next friend of a minor who has been injured, allowed a consent judgment to be entered, such judgment was held not binding. The court said: ‘* * * The office of next friend is solely to bring the infant into court because of his legal inability to present his own case; the next friend can do nothing which may injure the rights of the infant and his admissions are not binding upon the infant; the next friend can not release a cause of action, nor compromise, nor submit it to an arbitration.’

In Caine v. Victor Lamp Co., 14 Ohio N. P. (N. S.) 369, 379, the court, in setting aside the judgment, said: ‘The apparent purpose of the judgment entered by the justice of the peace in this case was to give legal sanction to the compromise and settlement which had been agreed upon by plaintiff's next friend. We have seen that the justice of the peace had no legal right to enter such judgment except after due examination and inquiry into the facts.’

To like effect is Rupert v. Cincinnati Traction Co., 29 O. C. A. 238. In Cunningham v. Cleveland Consolidated Bottling Works Co., 12 Ohio App. 309, the consent judgment was upheld, but an examination of the facts indicates that the court examined the merits of the case before allowing the entry of the judgment. Rammelsberg v. Mitchell, 29 Ohio St. 22, relied on by defendants, is not in point. The judgment in the instant case indicates on its face that the Federal court made no investigation of the merits of plaintiff's claim, but that the verdict was directed on the strength of the settlement agreement. The courts have repeatedly set aside consent judgments following a compromise of a minor's claim where there has been no real examination of the facts to determine whether the settlement is for the best interests of the minor. Missouri Pacific R. Co. v. Lasca, 79 Kan. 311, 99 P. 616,21 L. R....