Natchez Cotton-Mills Co. v. Mullins

• Decision Date: 26 May 1890
• Citation: Natchez Cotton-Mills Co. v. Mullins, 67 Miss. 672, 7 So. 542 (Miss. 1890)
• Court: Mississippi Supreme Court
• Parties: NATCHEZ COTTON MILLS CO. v. LIZZIE O. MULLINS ET AL

7 So. 542

67 Miss. 672

NATCHEZ COTTON MILLS CO. v. LIZZIE O. MULLINS ET AL

Supreme Court of Mississippi

May 26, 1890

FROM the chancery court of Adams county, HON. W. R. TRIGGChancellor.

Mary J Mullins sued the appellant, The Natchez Cotton Mills Company a corporation, for the death of her husband, Henry Mullins who was killed by an explosion in the mills of defendant, and recovered a judgment for $ 6000.The deceased left two minor children, Lizzie O. and Henry Mullins.The action was in the name of their mother, the widow, under § 1510,code 1880, which provides that the action therein given "may be brought in the name of the widow for the death of her husband . . . the damages to be for the use of such widow . except that in case a widow should have children, the damages shall be distributed as personal property of the husband."

The defendant gave a supersedeas bond and prosecuted an appeal from said judgment, pending which the widow compromised the case by accepting from the defendant $ 1000 in full of the judgment, and entered satisfaction on the judgment-roll.The minors were without guardian, and the compromise was made without the authority of any court.Afterwards, by their next friend, they presented the bill in this case against said defendant, setting up that they were the owners of said judgment to the amount of $ 4000; that the defendant knew of their rights, and that the attempted compromise was void as to their interest.A decree for said sum of $ 4000 was asked against said defendant.

The defendant's demurrer to this bill being overruled, it appeals.

Decree reversed, demurrer sustained and bill dismissed.

Martin & Lanneau and T. Otis Baker, for appellant.

1.The suit by the widow was based on § 1510 of the code.The action was purely statutory, Ins. Co. v. Brame,95 U.S. 754.The widow only could maintain the action.Weidner v. Rankin,26 Ohio St. 522;Hagen v. Kean, 3 DillC. C. 124;R. R. Co. v. Lacey,49 Ga. 106;McNamara v. Slavens, 76 Mo. 329.

2.The widow, having the right of action, could compromise with the defendant.McNamara v. Slavens, supra;Greenleev. Ry. Co., 5 Lea [Tenn.], 418;Stephensv. R. R. Co., 10 Ib. 448.See especially the case in 5 Lea, where the suit was for the "benefit of the widow and children," and yet was held that the widow could control it.

It is immaterial that a judgment had been rendered.The judgment had been superseded and the case was pending on appeal.

3.The defendant was neither bound to ascertain the persons entitled to the benefit of the recovery nor charged with the duty of distribution.Weidner v. Rankin, supra.

Proby & Clinton, for appellees.

The appellees have an interest in the judgment recovered for the death of their father.Code 1880, § 1510.

After judgment recovered, this interest became fixed, and the mother could not compromise it.She certainly had no greater power than is conferred on a legal guardian, and as such guardian she would not have had the authority claimed.A common-law guardian by nurture would not have possessed it.2 KentCom., 228, 229;5 Wait's Ac. &Def., 47, 48;8 Ib., 535.

As prochein ami she would not have had the power; without special authorization a person acting in this capacity is not authorized to collect and receipt for the recovery.Smith v. Redus,9 Ala. 99;Miles v. Kaigler,10 Yerg.[Tenn.] 10;Klaus v. State, 54 Miss. 646;10 Am. & Eng. Enc. L. 685.

The position of appellants is an admission that complainants, minor children of the deceased, have a two-thirds interest in this judgment, and that they cannot be defrauded out of it.

Who, then, is responsible to the minors, the mother or the defendant?As under the statute only the mother could sue, if she had compromised before judgment, perhaps defendant would have been relieved of liability; but, after judgment, the rights of all parties became fixed, and defendant compromised with the mother, who only had a partial interest, at its peril.

After recovery of judgment, if the mother is not financially responsible, and is not disposed to do right, is our law so defective that it affords no protection to minor children?

If an attorney compromises without consent of his client, it is not binding.Freeman on...