Ruditis v. Gallop, 16106.

• Decision Date: 22 July 1959
• Docket Number: No. 16106.,16106.
• Parties: John Michael RUDITIS, a Minor, Formerly Known as John Michael Lichaczewski, by C. G. Lindquist, His Guardian Ad Litem, Appellant, v. Sammy P. GALLOP and Pearl Gallop, Co-Partners Doing Business as Karsbar Bar and Grill, and Zelda Inn Grill, Inc., a Corporation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

269 F.2d 50 (1959)

John Michael RUDITIS, a Minor, Formerly Known as John Michael Lichaczewski, by C. G. Lindquist, His Guardian Ad Litem, Appellant, v. Sammy P. GALLOP and Pearl Gallop, Co-Partners Doing Business as Karsbar Bar and Grill, and Zelda Inn Grill, Inc., a Corporation, Appellees.

No. 16106.

United States Court of Appeals Eighth Circuit.

July 22, 1959.

Rodney J. Edwards, Duluth, Minn. (Thos. L. Hunt and Hoag, Gruber & Edwards, Duluth, Minn., on the brief), for appellant.

K. C. Weyl, Duluth, Minn. (R. B. Reavill, Duluth, Minn., on the brief), for appellees.

Before GARDNER, Chief Judge, and JOHNSEN and VOGEL, Circuit Judges.

JOHNSEN, Circuit Judge.

Appellant, an infant and a citizen of Michigan, sued in Minnesota, through his guardian ad litem, to recover $250,000 in damages from the owners of two liquor bars in the City of Duluth, for the loss of support occasioned to him by the death of his mother. The court entered a summary judgment in favor of the liquor dealers.

The action was one based on the Civil Damage Act of Minnesota, M.S.A. § 340.95, which provides: "Every husband, wife, child, parent, guardian, employer, or other person who is injured in person or property, or means of support, by any intoxicated person, or by the intoxication of any person, has a right of action, in his own name, against any person who, by illegally selling, bartering or giving intoxicating liquors, caused the intoxication of such person, for all damages, sustained; and all damages recovered by a minor under this section shall be paid either to such minor or his parent, guardian, or next friend, as the court directs; and all suits for damages under this section shall be by civil action in any court of this state having jurisdiction thereof".

The complaint alleged that the death of appellant's mother occurred from an automobile accident in Minnesota; that she was at the time a passenger in a car driven by one James C. Fedo; that the accident was due to Fedo being intoxicated; that his intoxication was caused by liquor having been sold and served to him at the establishments of appellees; that Fedo was then only 20 years old and the sales of liquor to him were therefore illegal, under the statutes of Minnesota and the ordinances of Duluth prohibiting the sale of intoxicating liquor to minors; and that the death of appellant's mother had caused him to be deprived of support from his only remaining parent, his father having died a number of years before.

Appellees set up as one of their defenses and moved for summary judgment on the basis of some releases, which had been executed by appellant's guardian and by the special administrator of the mother's estate, in a settlement of $3,000 for the mother's death, made by Fedo, his father as owner of the car, and the liability-insurance carrier on the automobile, under orders of approval and authorization from the Probate Court of the County in Michigan where appellant and his mother resided.

The separate release executed by the special administrator was without materiality in the situation, for it was one authorized by the Probate Court to be given on behalf of the mother's estate, covering such claims as the special administrator might have "because of any damages sustained by said Deceased, because of, or arising out of the accident and death aforesaid". The cause of action created by the Civil Damage Act, for appellant's loss of support from his mother's death occasioned by the illegal sale of liquor to Fedo, was one that in no way ran to her estate or to her personal representative, but to appellant personally, and so constituted a right which the special administrator of the mother's estate would have no capacity to release.

As to the release given by appellant's guardian, this was one authorized by the Probate Court to be executed by the guardian for a payment of $3,000, in compromise and settlement of an alleged dispute with Fedo, his father, and their insurance carrier over whether the accident and death, with the damage resulting therefrom, were due solely to Fedo's negligence, and with a discharge to be made of Fedo, his father and the insurance carrier from any and all claims which appellant or the guardian might have against these three parties "because of or arising out of the accident and death aforesaid".

The release form, however, which the insurance carrier took from the guardian went beyond the authorization granted by the Probate Court's order and purported to make release, not simply of Fedo, his father and their insurance carrier, but also of "all other persons, firms or corporations" from any claims which appellant or the guardian might have "because of said accident and death".

Under Michigan law, a guardian is without capacity to compromise and settle claims except under orders of the Probate Court. Michigan Compiled Laws of 1948, § 708.19, provides: "Any fiduciary, under order of the probate judge, * * * may adjust, settle or compromise any claim for or against the estate of a decedent or ward". Such authorization by the court is not simply permissive but the order is "in effect, a judgment"...