The Missouri Pacific Railway Company v. Lasca

• Decision Date: 12 January 1909
• Docket Number: 15,750
• Citation: 99 P. 616,79 Kan. 311
• Parties: THE MISSOURI PACIFIC RAILWAY COMPANY v. CHARLES LASCA, a Minor, etc
• Court: Kansas Supreme Court

99 P. 616

79 Kan. 311

THE MISSOURI PACIFIC RAILWAY COMPANY v. CHARLES LASCA, a Minor, etc

No. 15,750

Supreme Court of Kansas

January 12, 1909

Decided January, 1909.

Error from Wyandotte court of common pleas; WILLIAM G. HOLT, judge.

STATEMENT.

THIS was an action commenced by Charles Lasca, a minor about six years of age, by Nick Lasca, his father and next friend, to set aside a judgment rendered September 9, 1901, in the same court in favor of Nick Lasca and Anna Lasca, father and mother and next friends of Charles Lasca, a minor, against the Missouri Pacific Railway Company for $ 95 and costs.

The petition states that the defendant caused the judgment referred to to be rendered against itself; that there was no trial upon pleadings and proofs nor upon the merits of the case, and that no proof was made nor evidence offered nor damages assessed by the court; that the proceeding was without the knowledge or consent of Nick Lasca or Anna Lasca and the judgment was obtained for the purpose of defrauding the plaintiff by barring the cause of action set up in the petition therein; that the plaintiff had a good cause of action for injuries caused by the negligence of the defendant, and still has such cause of action, unless barred by the judgment, which he asks to have set aside accordingly. The defendant answered by a general denial, and a plea to the jurisdiction of the court, challenging its authority to try the cause because the judge of the court was a material witness for the defendant.

Upon the trial of these issues the court made findings of fact from which it appears that Nick Lasca, an Italian employee of the Missouri Pacific Railway Company, with Anna, his wife and their little son, Charles, about eighteen months of age, were living in a bunk-car on a side-track at Lane, Kan. Another car, upon which was a water-tank, was standing near by on another side-track. Mrs. Lasca went to this water-tank for the purpose of drawing water for domestic use, leaving the little boy with his grandmother in the bunk-car. While his mother was absent on this errand the boy left the bunk-car, went to the other side-track, and put his hands on the rail near the tank-car; just at that time an incoming freight-train moved the tank-car so that a wheel passed over the boy's hands, crushing and bruising them, whereby he was very severely injured.

Negotiations were opened between the defendant's claim agent and the parents of the child, resulting in an agreement in writing whereby the parents agreed to accept $ 100 from the defendant in full of all claims for the injury, to be paid through a friendly suit to be instituted in a court in Wyandotte county, this sum to cover all claims of the parents as well as of Charles Lasca, and to be divided as the attorneys for the defendant might deem proper. In pursuance of this agreement the parents went to the office of the defendant's attorney in Kansas City, at the request of the claim agent, and there met the company's attorneys and Frank Pitman, another attorney who was then in the office, with whom they consulted about the matter. The petition, answer and reply in the proposed action had been prepared by the defendant's attorneys. The petition and reply were signed by Frank Pitman, as attorney for the plaintiff, the papers being entitled "Nick Lasca and Anna Lasca, father and mother and next friends of Charles Lasca, a minor, plaintiff, v. the Missouri Pacific Railway Company, defendant." The petition stated a cause of action for the injuries to Charles Lasca, and prayed for a judgment for $ 100. The answer contained a general denial, and a plea of contributory negligence, and was signed by the defendant's attorneys. Nick Lasca and Anna Lasca and the attorneys named then proceeded to the court of common pleas in Wyandotte county, filed the papers and presented them to the court, and the attorney for the defendant informed the court that this was a friendly suit for the settlement of the claim against the company, and that he wished to have a judgment entered against the company in accordance with the settlement for $ 95 and costs. The judge, the court being regularly in session, then called Nick Lasca and Anna Lasca and inquired of them whether the settlement was satisfactory. They stated that it was and that they desired to have judgment entered accordingly. The judge informed them that if a judgment was entered it would cut off all claims of the child for further damages, and thereupon judgment was entered for $ 95 and costs by consent of the parties. There was no trial of the issues and no evidence was introduced, except the statement of the parties present to the effect that the child had been injured by the defendant company, that the parents had effected a compromise and settlement, and that the amount agreed upon was satisfactory. The judge made an entry upon his trial docket as follows: "September 9, 1901, judgment for plaintiff for $ 95 and costs, by consent and agreement of all parties." Thereupon a judgment was entered upon the journal of the court in ordinary form, reciting as follows:

"And thereupon, said case came on for trial on its merits, all parties appearing as before, and the jury being waived and a trial being had before the court, on the pleadings and proof, and the court being fully informed and advised, doth find the issues in favor of the said plaintiff and against the said defendant, and further finds that the said Charles Lasca had been damaged in the sum of $ 95."

Immediately after this judgment was entered, and on the same day, September 9, 1901, the defendant paid to Nick Lasca and Anna Lasca $ 105.65, taking from them a receipt reciting the injury to the child, the settlement referred to, and containing the following:

"On the 9th day of September, 1901, the said suit was up for hearing and the said railway company, while denying liability on account of said accident, but for the purpose of making an end to the matter, and closing it up by friendly suit, confessed judgment by agreement with the plaintiffs and their attorney, for $ 95 and costs of suit, taxed at $ 5.65. . . . In consideration for the prompt payment of the judgment above referred to, and the further payment of $ 5, as recited above, we, Charles Lasca, a minor, by Nick Lasca and Anna Lasca, father and mother, and next friends, and Nick Lasca and Anna Lasca in their own behalf, jointly and severally, fully and forever release, discharge and acquit the said Missouri Pacific Railway Company of and from all actions, causes of action, suits, claims and demands of every class and character arising out of, and accruing from, the injuries sustained by the claimants herein."

They also receipted the journal docket.

In addition to other findings, the substance of which has just been stated, the court found:

"That Nick Lasca and Anna Lasca were fully informed as to all the facts surrounding the injury to their child, and also all the facts concerning the settlement and the proceedings in court at the time of the taking of the judgment, and no fraud in fact was committed against said Nick Lasca, Anna Lasca or Charles Lasca by any representative of the defendant railway company."

Judgment was rendered setting aside the former judgment of September 9, 1901, and the defendant presents the case here for review.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. COMPROMISE AND SETTLEMENT--Injury to Infant--Authority of Parent--Judgment by Consent. A parent has no implied authority to compromise or settle the claim or cause of action of his infant child or to consent that a judgment may be rendered against him.

2. COMPROMISE AND SETTLEMENT--Authority of Parent--Negotiations for an Adjustment. When acting as next friend for his infant child a parent who has been regularly made a party to an action may properly negotiate for an adjustment of the controversy. He can not, however, bind the infant by such settlement, which can only become effective by due judicial examination and adjudication.

3. COMPROMISE AND SETTLEMENT--Judgment Entered without a Judicial Investigation. Where the proceedings in court are merely formal, and are instituted and carried on only to give an apparent sanction to the settlement, and there is no judicial investigation of the facts upon which the right or extent of the recovery is based, a judgment entered in pursuance of the agreement and by consent merely is only colorable, and will be set aside in a proper proceeding when its effect, if allowed to stand, would be to bar the infant's substantial rights.

James S. Gibson, James W. Orr, and B. P. Waggener, for plaintiff in error.

William B. Sutton, William B. Sutton, jr., and Elmer N. Powell, for defendant in error.

OPINION

BENSON, J.:

The preliminary agreement, the entry on the judge's minutes the satisfaction of the judgment and the...