Rowe v. Fair

• Decision Date: 21 April 1930
• Docket Number: 28453
• Court: Mississippi Supreme Court
• Parties: ROWE et al. v. FAIR et al

128 So. 87

157 Miss. 326

ROWE et al. v. FAIR et al

No. 28453

Supreme Court of Mississippi

April 21, 1930

Division A

1. EXECUTORS AND ADMINISTRATORS. Compromising claim for death.

Authority.

Administrator can compromise and settle claim for death and execute valid release, where authorized by chancery court's decree (Hemingway's Code 1927, section 515).

2. COMPROMISE AND SETTLEMENT. Action. Acquiescence of interested parties. Provision that determination of one suit for wrongful death shall not bar another action, unless decided on merits, does not apply where all parties interested acquiesced in settlement (Hemingway's Code 1927, section 515). Hemingway's Code 1927, section 515, provides that action for wrongful killing of person may be brought in name of personal representative of deceased for benefit of all persons entitled to recover, or in name of certain designated heirs at law, or all parties interested may join in suit, and there shall be but one suit for same death, which shall ensue for benefit of all parties concerned, but determination of such suit shall not bar another action unless it be decided on its merits.

3. EXECUTORS AND ADMINISTRATORS. Action. Settlement by administrators. Binding effect.

Settlement by administrator of claim for wrongful death properly authorized by chancery court's decree, is binding on all interested parties (Hemingway's Code 1927, section 515).

4. EXECUTORS AND ADMINISTRATORS. Release. Wrongful death. Validity. Fraudulent representations. Averments alleging release for liability for death executed by administrators in pursuance of decree was induced by fraudulent representations held insufficient to render release void.

The facts charged which it was alleged rendered release void were, in substance, that although uncle and stepmother of deceased were old and feeble, defendants' agents and attorneys represented to them that they were proper persons to administer estate, that there was no liability for death of decedent, and that nothing could be recovered by suit, and that uncle and step mother were led to believe defendants' attorney knew law and was representing them instead of defendants and that proposed settlement was for best interest of all parties, and advised them not to employ counsel, and that uncle and stepmother, after appointment as administrators, filed petition praying for authority to compromise and settle claim.

5 RELEASE. Validity. Capacity of party. Weakness of mind. Weakness of mind of one party will not avoid release.

6. EXECUTORS AND ADMINISTRATORS. Appointment. Qualifications.

Negotiating settlement. Determination by chancery court. Whether administrators were capable and appreciated effect of settlement they negotiated for death was chancery court's determination when appointing them and when approving settlement.

7 EXECUTORS AND ADMINISTRATORS. Claim for wrongful death. Settlement. Adequacy.

Settlement for claim for death of sixteen-year-old boy for two thousand dollars cash and house and lot, by administrators under chancery court's decree, held not inadequate (Hemingway's Code 1927, section 515).

HON JNO. F. ALLEN, Judge.

APPEAL from circuit court of Winston county HON. JNO. F. ALLEN Judge.

Suit by Jewell Rowe and others against D. L. Fair and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Judgment affirmed.

J. A. Cunningham, of Booneville, for appellants.

The acts of collusion and fraud rendered the decree null and void and of no effect, and the release entered into at the same time was void and of no effect.

Plummer v. Plummer, 37 Miss. 185; Christian v. O'Neal, 46 Miss. 669; Sudbury et al. v. Meridian Fertilizer Co., 64 So. 723; McRainey et al. v. New Orleans & Northeastern R. R. Co., 90 So. 881; Keenum et al. v. Southern Ry. Co., 119 So. 301.

It was not encumbent upon these minor plaintiffs to tender back whatever they had received indirectly through the settlement made by their administrators at the time of the execution of the release.

Jones v. Ry. Co., 16, So. 379; St. Louis, etc., R. R. Co. v. Ault, 58 So. 102; Pilot Ins. Co. v. Wade, 121 So. 844.

By the very terms of the statute, the plaintiffs had the right to bring this suit in the circuit court and have their day in court on the merits of the case.

E. M. Livingston, of Louisville, and Watkins, Watkins & Eager, of Jackson, for appellees.

An administrator has authority to effect a compromise settlement provided the authority of the administrator lodged in a valid decree of the chancery court authorizing same and is afterwards consummated by the execution of a release.

It is alleged that the settlement was inadequate, but the record shows the two thousand dollars was paid in cash and a house and lot deeded to the parties in addition to the cash payment; and this was adequate.

The release not being void but only voidable no recovery at law can be had without a tender of the fruits of the settlement.

Smith v. St. Louis & S. F. Railroad Company et al., 73 So. 801; Alabama & Vicksburg Ry. Company v. Turnbull, 71 Miss. 1029; 23 R. C. L., page 383; Babcock v. Farwell et al., 245 Ill. 14, 91 N.E. 683, 137 Am. St. Rep. 284, 19 Ann. cases, 74; Rabitte v. Alabama Great Southern Railroad Company (Ala.), 47 So. 574; Indiana C. & W. R. R. Co. v. Fowler, 201 Ill. 152, 66 N.E. 394, 94 Am. St. Rep. 158; Vandervelden v. Chicago & N.W. Ry. Co., 61 F. 54; Hartshorn v. Day, 19 Howard 211, 222; George v. Tait, 102 U.S. 564; Royal v. Goss et al., 45 So. 231; Johnson v. Merry Mount Granite Company, 53 F. 570; Settee v. Charlotte Elec. Ry. Co., 88 S.E. 734; Costello v. Hays, 144 N.E. 368, 249 Mass. 349; Loveless v. Cunard Mining Co. (Mo. App.), 201 S.W. 375; Reed v. John Gill & Sons Company, 212 S.W. 43, 201 Mo.App. 457; Swan v. Great Northern Railroad Company, 168 N.W. 657, 40 N.D. 258; Och, et al. v. Mo., Kansas & Texas Ry. Co., 130 Mo. 27, 36 L.R.A. 442; 36 L.R.A. 446; Hartshorn case, 19 Howard 211, 15 L.Ed. 605; Vandervelden case, 61 F. 54.

Appellants cannot treat the release under the allegations of the replication as an absolute nullity merely by alleging that the administrators were feeble in mind and body.

OPINION

Cook, J.

The appellants, minor brothers and sisters of J. H. Rowe, deceased, filed their declaration in the circuit court of Winston county against D. L. Fair, Claud Fair, and F. L. Fair, who were doing a sawmill and lumber business under the firm name of the D. L. Fair Lumber Company, seeking to recover the damages sustained by them as a result of the death of the said J. H. Rowe, alleged to have been caused by various acts of negligence of the defendants, as set forth in detail in the declaration. To this declaration the defendants filed a plea of the general issue and a special plea setting up a release of all liability of the defendants for the death of the said J. H. Rowe, executed by the administrators of the estate of the said J. H. Rowe, deceased, under and by virtue of a decree of the chancery court of Winston county authorizing the said administrators to compromise and settle the claim for damages for the death of the said J. H. Rowe. The release recited a consideration of two thousand dollars cash paid to the said administrators, and the conveyance to the appellants and their father, R. L. Rowe, of certain real estate located in the city of Louisville, Mississippi, of the alleged value of two thousand two hundred fifty dollars. The special plea set forth in detail the proceedings of the chancery court in appointing administrators of the estate of the deceased, and also the proceeding which resulted in the entry of a decree in the chancery court authorizing a compromise and settlement, for the consideration above stated, of the claim for damages on account of the death of decedent, and there was attached to the plea copies of the various pleadings and orders of the chancery court in reference to the appointment of administrators of the estate, and the compromise and settlement of the claim for damages, and also copies of the conveyance to the appellants and the release executed by the administrators.

To this special plea the appellants filed a replication which, as finally amended, averred, in general terms, that the appellees and their attorney and the surety company with which the appellees carried liability insurance entered into a conspiracy to defraud the appellants, and that as a consequence of certain acts and conduct of these conspirators which induced the execution of the release, the same was fraudulent and void. The particular facts charged, however, which it was alleged rendered the release void, were, in substance and effect, that although W. C. Rowe and Mrs. R. L. Rowe, one the uncle and the other the stepmother of the appellants, were old and feeble in mind and body, the agents and attorneys of the appellees represented to them that they were suitable and proper persons to administer the estate of the deceased, J. H. Rowe; that there was no liability for the death of the decedent, and nothing could be recovered by suit for the injury and death; that this uncle and stepmother of the appellants were led to believe that appellees' attorney knew the law and was representing them instead of appellees; that these agents of the surety company and the appellees led them to believe that the proposed settlement was for the best interest of all parties concerned; that various agents and employees of the appellee were sent to these old people to urge them to accept the proposed settlement, "and finally they succeeded in getting them to accept the settlement if it was possible." It was further alleged that the appellees advised these old people not to employ counsel, and while fraudulently concealing the fact that ...