Union Chevrolet Co. v. Arrington

• Decision Date: 04 January 1932
• Docket Number: 29668
• Court: Mississippi Supreme Court
• Parties: UNION CHEVROLET CO. v. ARRINGTON et al

138 So. 593

162 Miss. 816

UNION CHEVROLET CO. v. ARRINGTON et al

No. 29668

Supreme Court of Mississippi

January 4, 1932

Division B

1. INFANTS. It is chancery court's constitutional power and duty to act as superior guardian for infants.

It is not competent for Legislature to abate such powers and duties or for chancery court to omit or neglect them, but chancery court and chancellor must act with constant care and solicitude towards the preservation and protection of rights of infants.

2 INFANTS.

Court takes nothing as confessed against infants, makes for them every valuable election, rescues them from faithless guardians, designing strangers, and even from unnatural parents, and generally takes all necessary steps to protect their interests.

3 INFANTS.

Court cannot permit infants' rights to be prejudiced by waiver omission, neglect, or design of guardian or other person.

4. GUARDIAN AND WARD.

Persons dealing with guardians or court respecting infants' rights are charged with knowledge of chancery court's guardianship over infants,

5. GUARDIAN AND WARD.

To make guardian's compromise settlement effective against wards judicial sanction thereof must be on real, not perfunctory or merely formal, hearing (Code 1930, sections 1710, 1886).

6. GUARDIAN AND WARD. As respects compromise, chancellor cannot conduct hearing and enter decree where no witness in behalf of infants is heard, or is adverse to them (Code 1930, sections 1710, 1886).

Code 1930, sections 1710, 1886, authorizing compromise and settlement of doubtful claims as applied to infants, contemplate and require that chancellor in action thereunder shall not proceed unless interests of infants are actually represented and protected at the hearing, and to hear only witness or witnesses adverse to minors would be equivalent to taking default against them, or in legal effect a refusal to hear witnesses in their behalf.

7. GUARDIAN AND WARD.

Regarding guardian's settlement, failure of attorney, purporting to represent minors and persons adverse to them, to see that all testimony in minors' behalf is presented, constitutes legal fraud.

8. GUARDIAN AND WARD.

Regarding guardian's settlement, when ancient and obvious principles regarding protection of minors' interests are disregarded, law looks to that disregard, not to intent, in determining existence of legal fraud.

9. DEATH. Chancellor properly refused to permit settlement for decedent's death made by guardian to be interposed in subsequent suit to infants' prejudice (Code 1930, sections 1710, 1886).

It appeared that petition for settlement was presented to chancellor by attorney for defendant, whose driver's negligence caused decedent's death, that only witness produced was driver of defendant's truck, and chancellor's decree recited that chancellor having heard evidence found that outcome of cause against defendant by such minors was doubtful, whereas actual facts disclosed in subsequent suit made out liability against defendant beyond doubt.

10. DEATH.

Doctrine of indecent haste held inapplicable under circumstances to settlement made by decedent's widow in own behalf (Code 1930, sections 1710, 1886).

HON. A. B. AMIS, SR., Chancellor.

APPEAL from chancery court of Jones county HON. A. B. AMIS, SR., Chancellor.

Suit by Francis Arrington, in her own behalf and as next friend for each of her minor children, against the Union Chevrolet Company. From an adverse decree, defendant appeals. Affirmed in part and in part reversed.

Affirmed in part, and in part reversed.

Jas. T. Welch, Ellis B. Cooper, and W. S. Welch, all of Laurel, for appellant.

Where a court order is obtained authorizing guardian to settle a claim the authority of the guardian to make the settlement and execute the release seems beyond question.

Sections 1874 and 1886, Code of 1930; Fox v. Fairchild, 133 Miss. 617, 98 So. 61; Gunter v. Henderson Molphus Co., 115 So. 720, 149 Miss. 603; Railway Company v. Blythe, 69 Miss. 939, 11. So. 111, 30 A. S. R. 599, 16 L. R. A. 251; Rowe v. Fair, 157 Miss. 326, 128 So. 87.

In most of the cases where this question of undue haste is discussed, the party claiming to have been wronged was suffering great physical pain at the time, or was under the influence of an opiate. No such question is involved in the case at bar.

Whittington v. H. T. Cottam Company, 130 So. 745.

Recent grief does not make one incapable of making a valid and binding contract. Undue haste may be an element to be considered, but in a case like this where no fraud is proven a solemn contract made with full opportunity for reflection and without any semblance of coercion and with authority of a decree of court having jurisdiction should not be set aside to give another judge an opportunity to determine what would be right when we have no absolutely accurate rule by which compensation can be measured.

Rowe v. Fair, 157 Miss. 326, 128 So. 87.

No principle of equity jurisprudence is more firmly established than that where fraud is relied on as a basis for relief sought from a chancery court the facts on which the charge of fraud is predicated must be specifically stated with full definiteness of detail. No general averment of a fraudulent course of business and no bare statement of a corrupt design on the part of the defendant is sufficient. The acts themselves which are claimed to be fraudulent must be clearly set out.

Weir v. Jones, 84 Miss. 606, 36 So. 533.

As to character of proof required in a case of fraud, see Simonton v. Bacon, 49 Miss. 582; Wherry v. Latimer, 103 Miss. 534, 60 So. 643.

To entitle a releasor to avoid a release on the ground of fraud, he must have been induced in making the release, to have acted to his damage upon the truth of a statement of a material fact known by its maker to be false or recklessly uttered regardless of its truth, made by the releasee or another in his behalf with the intention that it should be acted upon by the releasor in the execution of the release.

34 Cyc. 1060.

To constitute undue influence the will of the releasor must be so overborne that voluntary action on his part is prevented. Furthermore, the undue influence to invalidate the release must have been exercised to benefit the releasee or to wrong the releasor in the former's interest.

34 Cyc. 1965.

A party will not, be permitted to make a trade and have it ratified by a court order, retain the fruits of the transaction, and then see if a better trader call be found to act for the party.

Gibson v. Western New York Railroad Company, 44 Am. St. Rep. 586.

A releasor is entitled to the consideration of the release only in the event, that the release is valid, his retention and use of it as his own for an unreasonable length of time after the removal of his disability or the discovery of the invalidating facts is consistent only, except in rare cases, with ail intention to ratify the release.

34 Cyc. 1066.

The law presumes that every man is sane and honest; that all his acts are dictated by correct motives, and are the result of his own independent, intelligent and unaided judgment. It also presumes that all his contracts are valid, and were entered into freely and voluntarily in the exercise of ail intelligent discretion. It never presumes dishonesty, mental incapacity, fraud, undue influence, or any other matter tending to vitiate a, contract; but always requires proof of facts from which dishonesty, mental incapacity, fraud, undue influence, or other matter may be reasonably inferred. And, whenever any person seeks to cancel or overturn a contract oil the ground of fraud or undue influence, he must clearly establish by his testimony such fraudulent acts or the exercise of such undue influence as will vitiate the contract, or else a state of facts from which the reasonable and natural inference is that the contract was the result of such fraudulent, acts or undue influence.

Wherry v. Latimer, 103 Miss. 534, 60 So. 643.

It now appears that the sum named was not commensurate with the injury suffered, but that in no way affects the present controversy. It is not to be forgotten, we say in conclusion, that the appellee rested in the settlement for nearly a year before bringing this suit. Hard is the appellee's case appears to be, we cannot open the door to unsettle the faith of men, dealing with each other, in the binding force of contracts solemnly entered into, by avoiding the effect of this release upon the wholly unsatisfactory evidence of fraud or misrepresentation found in appellee's testimony.

A. & V. R. R. Co. v. Turnbull, 71 Miss. 1029, 16 So. 346; A. & V. R. R. Co. v. Kropp, 129 Miss. 616, 92 So. 691.

Where a master pays a servant a certain sum in satisfaction of claim for personal injuries, the servant cannot attack the settlement as fraudulent without offering to return the sum paid.

Harrison v. Alabama Midland Railway Co., 40 So. 395; Kelly v. Louisville & Nashville Railroad Company, 45 So. 906; Rabitte v. Alabama Great Southern Railroad Company, 47 So. 53.

The chancery court may empower guardian to compromise and settle minor ward's claim or right of action for damages at any time after grant of letters, and need not wait until after twelve months.

Gunter v. Henderson Molpus Co., 149 Miss. 603, 155 So. 720.

An executor or administrator may under a decree of the court or chancellor settle and release a, claim for damages.

Rowe N. Fair, 128 So. 87, 157 Miss. 326.

Section 1886, Code of 4930 in itself is simply a statutory method of doing that which the guardian could do at common law without prior consent of the court.

Maclay v. Equitable Life Assur. Society, 152 U.S. 499, 38 L.Ed. 528.

It is the rule that to set, aside a, decree or judgment...