APPEAL from the Circuit Court of Cook County; the Hon. PAUL F.
ELWARD, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
The plaintiff, Roxanne Mastroianni, appeals from an order of the circuit court of Cook County dismissing with prejudice her negligence action against the defendant, Evelyn Curtis. Plaintiff seeks recovery of damages for personal injuries she sustained when she was 2 1/2 years old. Plaintiff also seeks review of the court's orders denying both a motion to vacate the dismissal order and a motion to file an amended complaint seeking equitable relief.
The issue on appeal is whether defendant's motion to dismiss, pursuant to section 48(1)(f) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48(1)(f)) which alleges a release and settlement of plaintiff's claim, was legally sufficient to support the trial court's dismissal of plaintiff's complaint.
We find that it was not. We reverse the dismissal and remand for further proceedings.
The instant complaint, filed by the plaintiff upon reaching majority, alleged that the defendant negligently struck her with an automobile on December 17, 1964. Plaintiff contends that the accident caused her permanent injury which will result in future medical expenses and lost time from work. Defendant moved to dismiss the action pursuant to section 48(1)(f) of the Civil Practice Act.
The defendant's motion, unsupported by affidavit, alleges that plaintiff's claim had been settled in a prior action commenced against the defendant, which was thereafter dismissed in 1964 per stipulation of the parties. Subsequently, a release, entitled "Parents Release and Indemnity Agreement," was executed by the plaintiff's parents. Copies of the release *fn1 and the agreed order were attached to the motion. The authenticity of these documents was never challenged.
The plaintiff did, however, challenge the legal effect of these documents on two grounds: (1) the documents failed to show that her parents were appointed guardians of her estate and thus, plaintiff asserts, they were without authority to compromise her claim as a minor; and, (2) the settlement allegedly entered into by her parents lacked court approval in violation of section 215 of the Probate Act (Ill. Rev. Stat. 1963, ch. 3, par. 215), thereby rendering the settlement void.
Section 215 of the Illinois Probate Act, the statute which plaintiff relies upon, provides that "By leave of court * * * [a] guardian * * * may compound or compromise any claim or any interest of the ward * * * in any personal estate * * * upon such terms as the court directs." Ill. Rev. Stat. 1963, ch. 3, par. 215.
Interpreting an earlier, but similar, statute in Hayes v. Massachusetts Mutual Life Insurance Co. (1888), 125 Ill. 626, 636, 18 N.E. 322, 326, the supreme court held that the provision requiring court approval before a guardian compromised and released a minor's claim was mandatory. Because the legislature intended to substitute judicial determination for the guardian's personal discretion, court approval was required to render the guardian's act legal and binding. This, the court reasoned, provided additional protection for the ward; it required that the terms and conditions of any proposed compromise "be submitted to, inquired into and passed upon by that court having special jurisdiction of the estates of minors." Hayes v. Massachusetts Mutual Life Insurance Co. (1888), 125 Ill. 626, 636, 18 N.E. 322, 326.
1 We believe the rationale and holding of Hayes applies to section 215 of the Illinois Probate Act. The language of that section is clear: it is by leave of court that a guardian may compromise a ward's claim and upon such terms as the court directs. (Ill. Rev. Stat. 1963, ch. 3, par. 215.) Further, it is the public policy of this State that the rights of minors be guarded carefully. A minor who becomes a party to litigation is a ward of the court, and a duty devolves upon that court to protect the minor's rights. Scheffki v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co. (1971), 1 Ill. App.3d 557, 561, 274 N.E.2d 631, 633.
In the 1964 action, when plaintiff was a minor, her parents executed a release and received $838. The release described the "undersigned" as "parents and guardians." The record, however, does not disclose whether the court appointed plaintiff's parents as guardians of her estate. We find similar difficulty with the stipulated order dismissing the 1964 action; it does not indicate whether the settlement was brought before the court for its approval.
Defendant contends that although the court in the 1964 action did not formally appoint plaintiff's father as guardian, it recognized him as guardian. Assuming that this is true, he "would have had `power to claim and pursue the rights of the infant and powerless to yield or cede it to others' [citation], and would have had no power to make settlement of the demand of the infant except by leave of court. [Citation.]" Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v. Haley (1897), 170 Ill. 610, 613-14, 48 N.E. 920, 922.
2 In addition to ruling that a guardian has no power to settle a minor's cause of action without leave of court, the Haley court held that a parent has no legal right, by virtue of the parental relationship, to settle a minor's cause of action. (Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v. Haley (1897), 170 Ill. 610, 613, 48 N.E. 920, 922; see also Paskewie v. East St. Louis & Suburban Ry. Co. (1917), 281 Ill. 385, 388-89, 117 N.E. 1035, 1036.) Thus, not only must the court have recognized plaintiff's father as her guardian, the court also must have approved the settlement agreement. See Williams v. Williams (1903), 204 Ill. 44, 51-52, 68 N.E. 449, ...