Wood v. Claiborne

• Decision Date: 29 April 1907
• Citation: 102 S.W. 219,82 Ark. 514
• Parties: WOOD v. CLAIBORNE
• Court: Arkansas Supreme Court

102 S.W. 219

82 Ark. 514

WOOD v. CLAIBORNE

Supreme Court of Arkansas

April 29, 1907

Appeal from Pulaski Circuit Court; Edward W. Winfield. Judge affirmed with modification.

STATEMENT BY THE COURT.

Henry Claiborne, a boy about 12 years of age, was injured on the turntable of the Hot Springs & Western Railway Company. His father, D. W. Claiborne, acting as next friend, employed the firm of Wood & Henderson, attorneys at law, to bring an action against the railway company to recover damages for the injury. They brought an action for Henry Claiborne by his father as next friend against the company and recovered two thousand dollars. This money was paid by the company to Wood & Henderson, and, after deducting the amount of their fee they paid the balance, one thousand dollars, to D. W Claiborne, the father and next friend of Henry Claiborne there being no regular guardian. After or shortly before he became of age Henry Claiborne brought an action against his father to recover the money paid to him by Wood & Henderson and recovered judgment therefor, and interest amounting to about $ 1,200, but this judgment was never collected, for the reason that no property of D. W. Claiborne was found upon which to levy execution.

Afterwards in 1904 Henry Claiborne brought this action against Wood & Henderson to recover the money, alleging in substance that they had wrongfully paid the money to D. W. Claiborne, he not being the guardian of the plaintiff.

Wood & Henderson filed an answer, admitting that the money had been paid to D. W. Claiborne, the father and next friend of plaintiff, because there was no regularly appointed guardian of plaintiff, and that under such circumstances D. W Claiborne was authorized to receive it.

They further alleged that plaintiff after he became of age brought an action against D. W. Claiborne, his father and next friend, for the money paid to him by the defendants, and prosecuted the same to judgment; that this action of plaintiff was a full ratification of the acts of defendants in paying the money, and that he had afterwards no right of action against defendants.

On the trial plaintiff recovered judgment for $ 1,582.25, and Wood & Henderson appealed.

Judgment reversed and cause remanded.

Mehaffy & Armistead, for appellants.

1. Introduction of matter foreign to the issue in the opening statement to the jury is improper and should be corrected by the court. 16 N.W. 384; 48 N.W. 647; 63 N.W. 928. It is improper to comment on the fact that pleadings have been amended. 1 Thompson on Trials, § 260; 140 Mass. 250; 176 Mass. 363; 87 Mass. 242; 61 Ark. 137. If the argument is improper, it is presumed to be prejudicial, particularly where the verdict is against the weight of the evidence. 17 S.W. 402; 63 Ark. 174.

2. Prosecution of one remedial right to judgment, whether the judgment is for or against the plaintiff, is a decisive act which constitutes an election barring subsequent prosecution of inconsistent remedial rights. 117 Ga. 207; 82 Ga. 646; 61 Kan. 785; 20 So. 890; 86 N.W. 571.

Appellee, having prosecuted his suit to judgment in the circuit court in which suit his age was found by the jury to be at that time 21 years, upon that issue directly submitted to them, is bound by that judgment. 1 Black on Judgments, § 198; 20 P. 47.

An infant's contract is not void, but voidable, and may be ratified or affirmed after he reaches his majority, and slight circumstances demonstrating his assent will be sufficient. 17 Am. Dec. 735; 143 Mass. 224; 14 Mass. 457; 8 Tex. 80; 73 Me. 252; 38 Me. 450; 24 Cal. 195.

Carmichael, Brooks & Powers, for appellee.

1. Appellants had no right to pay over the money to the next friend, notwithstanding he was the father and natural guardian of the infant, unless he had qualified by giving bond. Kirby's Digest, § 3757; 35 La.Ann. 310; 107 N.Y. 580; 61 Ark. 26; 41 Mo.App. 416; 1 Dem. Sur. 299; 8 Fla. 144. Payment to the next friend of money due upon a judgment recovered by him in the name of an infant is a nullity. 10 Yerg. (Tenn.), 10 and cases cited; 9 Cal. 591; 7 Wend. 354; 34 Ala. 566; 5 Humph. 290; 15 Wend. 631; 2 La.Ann. 71; 46 Ga. 577; 22 Page 365.

2. In paying over the money to one not authorized to receive it, appellants were guilty of negligence. 5 Words and Phrases, 4743; 5 Thompson on Neg. § 6680; Id. § 6702; Kinkead, Law of Torts, par. 61. Joint tort feasors may be sued jointly or separately. Bishop on Non-Con. Law. par. 518.

3. Appellee's act in suing his father was no ratification of the act of appellant in paying the money over to the father. 1 Am. & Eng. Enc. of Law (2 Ed.), 490; 50 A. 644; 7 Robt. 623; 82 N.Y. 327; 1 Parsons, Contracts, 346; 48 Miss. 278; 80 Ind. 1; 1 Chitty on Contracts, 11 Am. Ed. 293; Story on Agency, § 251; 46 E. C. L. 236; 84 Mo. 13; Tiffany's Pers. & Dom. Rel. 286. The suit by the appellee against his father was not such an election of remedies as to bar this suit. 16 Am. & Eng. Enc. of Law (2 Ed.), 289; 44 Ark. 156; 4 L. R. A. 148; 14 L. R. A. 214; 15 Cyc. 257; 1 P. Wms. 285; 95 Ill. 519. And his judgment against the father was not res judicata. 15 Abb. Pr. 193; 1 Wash. C. C. 70; 14 N.Y. 329; 132 Mass. 105; 94 U.S. 351; Black on Judg. § 505; Baylies, Code Pl. 393; Bigelow on Estop. 10; 33 Neb. 373; 38 Nev. 736.

4. The remarks of counsel to which appellants object violated none of the rules with reference to improper remarks of counsel announced by this court. See 61 Ark. 143; 65 Ark. 625; 58 Ark. 581. And the verdict was responsive to the evidence, and not to remarks of counsel. 74 Ark. 260.

OPINION

RIDDICK, J., (after stating the facts.)

This is an appeal from a judgment rendered against them in the circuit court in favor of plaintiff for money recovered by defendants for him during his minority and paid by them to his father for him. There are only two questions presented by the appeal that it is necessary to notice. First, was the payment of the money to D. W. Claiborne, the father of the plaintiff, for him during his minority unauthorized? Second, does the fact that the plaintiff previously brought an action and recovered a judgment against his father cut off his right to bring this action against defendants?

As to the first question: It was decided in Sparkman v. Roberts, 61 Ark. 26, 31 S.W. 742, that a parent as the natural guardian of an infant before the execution of a bond as such guardian had no authority to receive money due the infant. Although D. W. Claiborne, the father of the plaintiff, appeared as his next friend in the action in which the judgment for the money was recovered, yet under our statute a next friend has no authority to receive the money of an infant recovered in the action brought by him for the infant. Our statute provides that "any person may bring the action of an infant as his next friend; but the court has power to dismiss it if it is not for the benefit of the infant, or to substitute the guardian of the infant or another person as the next friend." Kirby's Digest, § 6021.

Under this statute any person may bring a suit as the next friend of an infant without giving bond, and to allow the next friend to receive the money of the infant collected upon the judgment recovered in such actions would subject the estates of infants to spoliation by irresponsible parties appearing as their next friend. We have seen that the statute does not permit even the father or mother of an infant to take charge of his estate without first giving bond as guardian of the infant. There is nothing in the statute that confers such authority upon the next friend of an infant, and we are of the opinion that he has no such authority. Miles v. Kaigler, 18 Tenn. 10, 10 Yerg. (Tenn.) 10, 30 Am. Dec. 425; Allen v. Roundtree, 28 S.C. L. 80, 1 Speers 80; Klaus v. State, 54 Miss. 644; Gulf R. Co. v. Styron, 66 Tex. 421; 14 Enc. Plead. & Prac. 1037, 1 S.W. 161.

We have examined this question, though the point was not raised by brief of counsel, for the reason that we felt some doubt as to whether an attorney was not justified in paying the money recovered for an infant in an action brought by him by his father as his next friend, but our conclusion is that under a statute like ours such a payment is unauthorized.

The next question, and the one that has been urged with much force by counsel for appellant, is that the plaintiff, by first bringing an action against his father to recover the money paid to him, has elected to ratify the act of the defendants in paying the money to his father, and can not now maintain an action against the defendants for making such payments. This argument is based on the contention that the prosecution of an action against his father to recover the money paid by defendants to him is inconsistent with a claim for damages against the defendant for making the payment. The rule is well settled that a plaintiff will not be permitted to prosecute two inconsistent actions. For instance, if one brings an action and recovers judgment for the price of a horse which he claims to have sold to the defendant, he can not afterwards bring replevin to recover the horse on the ground that he never in fact sold it. So the question here is whether the present action against defendants is inconsistent with the action previously brought against his father. After a careful consideration of that question, we are of the opinion that these actions were not inconsistent. The relation between an attorney and a client for whom he has collected money is not that of debtor and creditor, but that of principal and agent. Wallis v State, 54 Ark. 611, 16 S.W. 821. The client for whom the money was collected in the former suit was the infant, and not the next friend. When the money was collected, the defendants held...