Appeal from the Circuit Court of Shelby County; the Hon.
DANIEL H. DAILEY, Judge, presiding. Affirmed.
Rehearing denied June 15, 1962.
This is a personal injury suit growing out of injuries sustained by the plaintiff when struck by an automobile driven by the defendant in the Village of Cowden, Shelby County, Illinois, on September 2, 1944. The plaintiff was then seven years of age, having been born April 19, 1937. Plaintiff reached his majority April 19, 1958, and on November 20, 1958, some seven months later, brought suit against the defendant, claiming defendant negligently operated her automobile when he was injured in 1944. Defendant filed her answer admitting the plaintiff was struck by an automobile driven by her, denying negligence and claiming contributory negligence on the part of the plaintiff. The defendant also filed her special defense reciting the appointment of Kermit Hudson as guardian of the plaintiff; the filing of petition to compromise and settle the claim of the minor; the order of the County Court authorizing such compromise and settlement for the sum of $1262.75; the payment of said sum and the execution of a release by the guardian of all claims. To this special defense, the plaintiff filed his reply claiming that there was a purported order authorizing the guardian to compromise and settle the claim, but such order was void as to the plaintiff because the settlement was in fact a settlement between Kermit Hudson, father of the plaintiff for medical expenses arising out of his son's injuries, and the insurance company of the defendant; that no payment was made and none ever offered to settle any claims the plaintiff might have had for his own disability, and that it was not the intention of any of the parties involved in the County Court proceeding to establish an estate for Dean Hudson, a minor. The reply further alleges that the County Court of Shelby County was not advised of the serious and extensive injuries sustained by the plaintiff; that the sum paid was so grossly inadequate as to be without valid consideration and to constitute a fraud on the minor's rights, and that Kermit Hudson was not represented by counsel in the county court proceedings. The defendant filed her sur-reply denying the affirmative matters contained in the plaintiff's reply.
The matter was tried before a jury on the issue presented by the defendant's affirmative defense and plaintiff's reply. The jury returned a verdict in favor of the plaintiff and against the defendant. The post-trial motion of the defendant for a judgment notwithstanding the verdict was granted and the jury's verdict was set aside and judgment entered for the defendant notwithstanding the verdict. The motion for a new trial was denied. From this judgment the plaintiff appeals.
The sole question raised by this appeal is the sufficiency and legality of the release given by Kermit Hudson, guardian of Dean Hudson, then a minor, in full settlement of all claims against the defendant growing out of the injuries sustained by Dean Hudson when struck by an automobile driven by the defendant on September 2, 1944. The plaintiff seeks to have this release held invalid.
In considering this cause, there is little dispute as to the evidence. The plaintiff, then a seven-year-old child was struck by an automobile driven by the defendant Ann Thies. There was evidence from three or four witnesses to the effect that the defendant was driving slowly. Ann Thies testified that the child ran from behind a truck into the path of, or into her car. There were others in the Thies car but they did not see the plaintiff but heard the thud when he was hit. All agreed that Mrs. Thies stopped quickly. The evidence showed that the plaintiff suffered a skull fracture, multiple fractures in one leg, fracture in the other, and an injury to the right foot which was discovered some time later. He was placed in a cast from the waist down, all the way to the foot on the right leg and to the knee on the left leg with a board between the two knees. He did not attend school the year 1944-1945. When examined by Dr. Arthur Sweet, physician and surgeon of Decatur, Illinois on December 1, 1959, Dr. Sweet found he had 75% disability of the right leg. His right leg was deformed so that he wore a shoe built up to compensate for the deformity.
The evidence is undisputed that neither the guardian, Kermit Hudson, or the minor Dean Hudson, was represented by counsel at the hearing before the County Judge, and that the petition for guardianship, the bond, and the petition to settle were prepared by Mr. John J. Baker, attorney for Hawkeye Security Insurance Company, the insurance carrier of the defendant. It is further not disputed that this attorney's fee and the court costs were paid by the insurance company. The amount paid for the release is not disputed, or the fact that almost all of the amount of money paid was to repay the father Kermit Hudson for out-of-pocket expenses in connection with hospital and medical treatment of the minor, occasioned by his injuries. The hearing before the County Judge is not in dispute although the witnesses were somewhat vague as to certain points. It appears that the injured minor was not in court and the county judge did not see him at any time. The county judge testified, but he did not remember the extent of the testimony before him, especially as to the injuries sustained by the minor, but his recollection was, that the questions and answers followed the substance of the petition. There is testimony in the record from several experienced lawyers practicing in the vicinity of Shelby County, Illinois as to the practice common in matters of this kind in 1946, and the practice followed in this case as to compromise and settlement of the claim of the plaintiff seems to have been the practice followed in similar cases at that time in comparable counties in the area. It further appears that the guardian Kermit Hudson was examined in open court as to the matters in the petition before the county judge entered an order authorizing the release.
Plaintiff in his appeal says that this is a case of first impression and that there is no case in Illinois that has passed on the question of the validity of a probated settlement such as this, except the case of Shine v. Wabash R. Co., 8 Ill. App.2d 521, 132 N.E.2d 41, which held that a settlement was void because approved in a court which did not have jurisdiction of the minor. The plaintiff urges the court to set up minimum standards for the settlement of claims of minors for personal injuries that will stand as guide lines for the future. And the plaintiff contends that in this case, although no one has been charged with fraud, either actual or intentional, that the circumstances surrounding the settlement were such as amounted to fraud on the minor's rights.
Plaintiff contends the trial court committed reversible error in setting aside the verdict of the jury, contending there can be fraud inferred or presumed. This theory is based upon the contention that there was a question of fact involved. The case of Indiana, D. & W.R. Co. v. Fowler, 201 Ill. 152, 66 N.E. 394 cited by plaintiff was a case where Fowler, an illiterate, was induced to sign a purported release of all claims for damages for personal injuries sustained by Fowler in a wreck. The court in that case held that the question whether the release was executed by Fowler with full knowledge of its purport and under circumstances that would bind him, was one of fact and a question for the jury. In Chicago West Division R. Co. v. Mills, 91 Ill. 39, at page 43, cited by plaintiff, the question was one of the mental competency to execute a release and the court there held there was a conflict as to fact and the matter should have been submitted to a jury. The plaintiff also cites the case of Bowman v. Illinois Cent. R. Co., 11 Ill.2d 186, 142 N.E.2d 104, a FELA case, where the court in discussing the validity of a release given to the railroad company, held that in passing on the validity of such release, when assailed, all surrounding conditions should be fully developed and the relative attitudes of the contracting parties clearly shown, so that the jury in the clear light of the whole truth may rightly decide which story bears the impress of verity. In these three cases there is a clear question in each as to the mental capacity or understanding of the party executing the release and this question was presented on the trial and became an issue of fact which would require the verdict of a jury. In this case, however, no question of fact is presented that required a jury. There is no evidence in this case that raises the question of competency on the part of the guardian; there is no evidence of a misunderstanding by anyone; there is no evidence of any fraud, actual or constructive. It may be conceded, that in view of the ultimate physical condition of the plaintiff, with 75% physical impairment of the right leg of the plaintiff, that the settlement was inadequate, but the evidence on the part of both parties fails to disclose any misunderstanding, inability or incompetency on the part of the parties concerned, to enter into and effect a release. We see no merit in this contention of the plaintiff.
Without contending there was actual fraud in the negotiation and consummation of the settlement between Kermit Hudson as guardian and the defendant, the plaintiff cites some authorities as to constructive fraud. There can be no quarrel with the law as laid down in those cases, but they are not applicable to the cause here.
Next, the plaintiff contends that the settlement of a minor's cause of action is voidable by the minor when it appears the minor's rights were not fairly protected by the court at the time the settlement was approved. In this position the plaintiff urges that there should have been a guardian ad litem appointed to represent the minor; that neither the minor nor his parents are represented in a proceeding where the only appearance in the cause is by counsel for the insurance company of the tortfeasor-releasee; that a probate court hearing a matter involving injuries and claims of a minor should make inquiry into the nature, extent and seriousness of the minor's injuries and should have the minor in court; and that the settlement of a minor's personal injury claims for only the amount of the father's medical and personal expenses when the injuries involved are serious, is so grossly inadequate as to constitute a constructive fraud on the minor's rights; that the circumstances surrounding the settlement of a person under legal disability in a court proceeding should be such that the court can fairly conclude that such person's rights and financial interests have been protected and that the court, acting as the jealous protector of the rights of infants, should so conduct the proceedings so as to protect the rights of such infants.
As to the necessity of an appointment of guardian ad litem to represent the minor. The plaintiff cites the case of Collins v. Hastings, 283 Ill. App. 304, where there was no guardian, or guardian ad litem appearing for the minor, and the court held that failure to appoint a guardian ad litem was a matter that could not be waived and such error as to invalidate any judgment rendered against him. In the case of Skaggs v. Industrial Commission, 371 Ill. 535, 21 N.E.2d 731, the minor children were not represented where the award to the widow and the children growing out of the death of the wage earner was involved. The court held that a minor cannot bring a legal proceeding, but must appear by a guardian, a guardian ad litem or a next friend. Citing Waechter v. Industrial Commission, 367 Ill. 256, 11 N.E.2d 378, Walgreen Co. v. Industrial Commission, 323 Ill. 194, 153 N.E. 831. In the Waechter case, at page 258, the court there said: "It is well settled that a minor cannot commence or engage in a legal proceeding in his own name. (Walgreen Co. v. Industrial Commission, 323 Ill. 194, 153 N.E. 831.) He cannot appear by an attorney but must appear, if at all, by a representative, such as general guardian, guardian ad litem or next friend." In the case of Blincoe v. Miller, 14 Ill. App.2d 400, 144 N.E.2d 809, the defendant Miller was a minor and his appearance was by his attorney. The court held the appointment of a guardian, guardian ad litem, or next friend was necessary.
It will be noted in all these cases, the court names three methods of representation of a minor in a legal proceeding; by guardian, guardian ad litem or next friend. The courts in those cases do not say that where a guardian was appointed as in this case, that the appointment of a guardian ad litem is necessary. In the case of Wascher v. Lundeen, 32 Ill. App.2d 239, 177 N.E.2d 440, this court held in a conservator case, that the conservator of an incompetent shall represent the ward in all legal proceedings, unless in the discretion of the court, it is deemed advisable to appoint another person as conservator or next friend to represent the ward, holding that "After the court appoints the conservator, the conservator acts for the ward, unless there is a conflict of interest, or some other good and sufficient reason to appoint some other person to represent the ward, Pyott v. Pyott, 191 Ill. 280, 61 N.E. 88; Isle v. Cranby, 199 Ill. 39, 64 N.E. 1065." And continuing in the Wascher v. Lundeen case, it was held "The contention of the necessity of a guardian ad litem would have some force, if there were no conservator or person authorized to act for the incompetent, since the duty of the court is to guard the interests of the incompetent at all times." While the matter involved there was a conservatorship, the principle involved would apply to a guardianship. In the Blincoe v. Miller case the court at page 405, stated that the error was that the minors were not represented "either by guardian, guardian ad litem, or next friend." In Morgan v. Hamlet, 345 Ill. App. 107, 102 N.E.2d 365, it was held that the rule in this State is, that when it appears from the record that the minor was in fact represented by guardian, guardian ad litem or next friend, the absence of on order appointing the guardian ad litem will not require reversal.
The statutory law of Illinois in 1946, as to representation of a minor by his guardian, was: "The guardian of the estate of a minor shall appear for and represent his ward in all legal proceedings unless another person is appointed for that purpose as guardian or next friend." Chapter 2, Section 293, Illinois Revised Statutes 1945. In this case, Kermit Hudson was the duly appointed, qualified and acting guardian of Dean Hudson, a minor. There was no necessity for the appointment of a guardian ...