Plummer v. Northern P. Ry. Co.

• Decision Date: 22 August 1917
• Docket Number: 14046.
• Citation: 98 Wash. 67,167 P. 73
• Parties: PLUMMER et al. v. NORTHERN PAC. RY. CO.
• Court: Washington Supreme Court

167 P. 73

98 Wash. 67

PLUMMER et al. v. NORTHERN PAC. RY. CO.

No. 14046.

Supreme Court of Washington

August 22, 1917

Department 1. Appeal from Superior Court, Spokane County; Henry L Kennan, Judge.

Action by W. H. Plummer and others against the Northern Pacific Railway Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

Plummer & Lavin, of Spokane, for appellants.

Cannon & Ferris, of Spokane, for respondent.

CHADWICK J.

On March 19, 1914, Lester Walsh, a minor 14 years of age, while working in one of respondent's section gangs under his father as section foreman was injured in his right eye so that he lost the sight thereof. At the time of the injury he was living with his parents in the town of Snohomish, Wash. On March 10, 1916, in company with his mother, he went to Spokane to attend his grandmother's funeral. While in Spokane, at the suggestion of an uncle and in his company, the minor went to appellant's law offices, appellants being practicing attorneys in Spokane and talked over with them the matter of his claim for damages against respondent railway company. He placed the case in their hands and signed a contract with appellants, agreeing to pay them one-half of any sums that might be recovered from respondent by suit of settlement, and also assigned an undivided one-half interest in such sums to appellants. At the instance of appellants and with the consent of the minor one John H. Pelletier was appointed guardian ad litem of the minor for the purpose of instituting suit against respondent on the minor's claim for damages on account of his injury. Pelletier, as such guardian ad litem, executed the same contract with appellants as that previously signed by the minor. Neither the contract signed by the minor nor the one signed by the guardian ad litem was submitted to the court for its approval. Immediately thereafter appellants brought suit against respondent on the minor's claim in the superior court of Spokane county. A few weeks later the minor returned to his parents' home in Snohomish. Through the efforts of his father and the respondent's claim agent, a settlement was effected. The minor's father was appointed general guardian by the superior court of Snohomish county and was authorized to make a settlement with respondent, the court being advised of the pendency of the action in Spokane county. By the settlement $1,700 was paid over to the general guardian, $100 of which was paid to the attorney who represented the minor and his guardian in the settlement and $100 was sent to appellants in payment of their services. This amount they refused to accept, and thereafter instituted suit against respondent for $1,700. From a judgment in respondent's favor they have appealed to this court.

Appellant contends that the contract with the minor for the prosecution of the damage case was valid, and that its validity could only be questioned by the minor, and was not available to the respondent, who is not a party to it; that such agreement acted as an assignment of a part of the claim, and an interest in the amount to be paid him, and which was paid him; that the contract between the guardian ad litem and the appellants was valid, and that the damage case was in the exclusive control of the guardian as litem until he was removed; that as soon as the unliquidated claim for damages of the minor against the respondent became reduced to an account stated, prior to the appointment of the general guardian, plaintiffs' claim of lien and assignment instantly attached to that fund, and created an obligation on the part of the railroad company to pay to appellants the amount due under the assignment by the minor of which it had notice; that the respondent's agreement to pay the minor and to assume the burden of settling with appellants obligated respondent to pay to appellants a sum equal to the sum paid the minor.

There is no question but that a minor may repudiate his contracts before majority. In this case we think that the acts of the minor in applying for the appointment of a general guardian and making an independent settlement with respondent sufficiently indicate his intention not to be bound by the contract previously made with appellants.

'An infant may avoid his act or contract by different means according to the nature of the act and the circumstances of the case, but it may be laid down as a general rule that any act showing unequivocably a renunciation of, or a disposition not to abide by, the contract made during minority is

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