Tripp v. Gifford

• Decision Date: 30 November 1891
• Citation: 155 Mass. 108,29 N.E. 208
• Parties: TRIPP v. GIFFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 108

29 N.E. 208

TRIPP v. GIFFORD.

Supreme Judicial Court of Massachusetts, Bristol.

November 30, 1891

COUNSEL

Lem. Le B. Holmes and

Stetson & Greene, for plaintiff.

W.C Parker, for defendant.

OPINION

BARKER J.

The action was brought by the father of the plaintiff as next friend. Before the trial the court removed him, and appointed another person to act in that capacity. At the trial the defendant offered to show, both in bar of the action and upon the question of damages, that the father, while acting as next friend and intending to protect the plaintiff's interests had in good faith made a settlement with the defendant, who had paid him the sum of $50, which both intended should be a full settlement of the cause of action. The only question in the case is whether this evidence was rightly excluded. No agreement for the settlement or disposition of the cause was filed in court before or after the removal of the father as next friend, but the original liability of the defendant was not contested, and the case went to the jury on the question of damages only.

The question whether a next friend can compromise and discharge the cause of action by an agreement made out of court has never come to this court for decision. Many of the numerous cases in which infants sue by next friends are never brought to a trial, but are so compromised or adjusted by the parties or counsel that they are disposed of by judgment entered in fact by consent. Sometimes, but very rarely, the proposed arrangement is brought to the attention of the court, and its sanction obtained. In most instances, however, the settlement is made and the judgment entered without calling the attention of the presiding justice to it, or obtaining his approval. That such judgments conclude the minor, we have no doubt, since he is ordinarily bound to the same extent as a person of full age by acts done in good faith by his counsel in the course of a suit; and even in equity, if a decree is entered against him by consent without special inquiry, he will be bound by the decree. Walsh v. Walsh, 116 Mass. 377, 382 The principal cases in our Reports in which the position of the next friend has been considered are Parsons v. Parsons, 9 Mass. 106; Smith v. Floyd 1 Pick. 275; Miles v. Boyden, 3 Pick. 213, 218; Crandall v. Slaid, 11 Metc. (Mass.) 288; Guild v. Cranston, 8 Cush. 506. From these decisions it is clear that while he may be any person who will undertake the infant's cause, the next friend is in theory of law appointed by the court. His authority is commensurate with the writ; the plaintiff's cause of action, pro hac vice being intrusted to him. He may so conduct himself as to damage the plaintiff, to whom he will thereby become answerable. The court will be slow to interfere and revoke his authority, but when proper cause is shown it will do so, and appoint another or stay proceedings. He is not liable for costs, because not a party to the suit. Having been appointed to prosecute for the infant, he may discharge the judgment. The judgment, whether for or against the infant, will, while it remains in force, bar any future action for the same cause. It is clear that, so far as these authorities go, his position and duties do not necessarily require him to have power out of court to discharge the cause of action. Nor is there any doubt that the general principle is as stated in Denholm v. McKay, 148 Mass. 434, 441, 19 N.E. 551, that "the rights of infants are sedulously protected by courts of law and of equity, as well as by statute." An examination of the decisions elsewhere shows that they do not favor the proposition that the next friend may discharge the infant's cause of action by a settlement out of court. It is held that he is an officer of the court, appointed specially for the protection of the infant's interests, ( Morgan v. Thorne, 7 Mees. & W. 405; The Etna, Ware, 462; Railroad Co. v. Fitzpatrick, 36 Md. 619;) that he is not a party to the action for any purpose, (Brown v. Hull, 16 Vt. 673; Sinclair v. Sinclair, 13 Mees. & W. 646; In re Corsellis, 48 Law T. [ N.S.] 425; Railroad Co v. Fitzpatrick, ubi supra;) that he cannot submit the case to arbitration, (Tucker v. Dabbs, 12 Heisk. 18;) or bind the infant's estate for attorney's fees, (Houck v. Bridwell, 28 Mo.App. 644;) that he cannot compromise the suit without the express sanction of the court, (Isaacs v. Boyd, 5 Port., Ala., 388; Miles v. Kaigler, 10 Yerg. 10; Crotty v. Eagle, [W.Va.] 13 S.E. 59; Clark v. Crout, [S.C.] 13 S.E. 602;) that, while he cannot surrender substantial rights, he may assent to...