Opinion
No. 36668
Decided April 26, 1961.
Guardian and ward — Settlement by guardian of injured minor's claim for damages — Section 2111.18, Revised Code — Binding on minor, when — Absence of error or fraud.
In the absence of a showing of prejudicial error in the proceedings or of fraud or collusion on the part of those involved, a settlement of an injured minor's claim for damages by his guardian in conformity with the provisions of Section 10507-19, General Code (now Section 2111.18, Revised Code), is valid and binding on the minor and may not be set aside.
APPEAL from the Court of Appeals for Clinton County.
Near a street intersection in the city of Springfield and late in the morning of November 1, 1950, Lowanna Sue Kelley, then a first grade pupil seven years of age and denoted by a physician as a retarded child, darted from the sidewalk into the street in front of a parked motor truck and either ran into or was struck by a pickup truck being driven by one Runyan and owned by one Burkhardt. As a result of the collision, Lowanna suffered a skull fracture and a concussion and was taken to the Springfield City Hospital, observed there for several days and discharged. Her attending physician suggested the possibility of posttraumatic epilepsy which, as far as the record discloses, did not develop. Lowanna was given a written medical release on December 18, 1950, and she returned to school early in January 1951. She passed the first three grades but had trouble in the fourth.
According to the written and detailed police report of the incident, it occurred in a zone where the speed limit was 35 miles an hour, and the pickup truck, according to the occupants, Runyan and Burkhardt, was proceeding at a speed of from 25 to 30 miles an hour. There were two witnesses to the collision listed on the report, one Mowry and one Gansheimer. They were occupants of a motor truck traveling on the same street behind the Burkhardt truck and in the same direction.
Later (November 29, 1950), at the instance of a representative of the insurer of the Burkhardt truck, Mowry admittedly signed a written statement in which it was recited that the truck occupied by Mowry "was being driven at a speed of about 30 miles an hour" and "I cannot say the exact speed of the Runyan truck although it was going a little faster than us."
On the same day, Gansheimer, driver of the truck in which he and Mowry were riding, also purportedly signed a written statement containing the information that he was proceeding at a speed of "around 30 miles per hour" and "since Mr. Runyan was about 100 feet ahead of me he was traveling a bit faster than we were."
On October 29, 1952, Barbara A. Kelley, mother of Lowanna, was appointed her guardian by the Probate Court of Clinton County, and on November 7, 1952, Barbara A. Kelley, as guardian and individually, and her husband, accompanied by counsel (the second contacted), and the attorney for Runyan and Burkhardt and Burkhardt's insurer appeared before the then probate judge of Clinton County. There was a discussion and inquiry by the judge, and a settlement of Lowanna's claim and that of her parents against Runyan and Burkhardt on account of the injury sustained on November 1, 1950, was effected for the sum of $1,500, and such settlement was approved by the court. On the record, the proceedings were had in conformity with Section 10507-19, General Code (now Section 2111.18, Revised Code), which provided in part:
"When personal injury * * * is caused to a ward by wrongful act, neglect * * * such as would entitle a ward to maintain an action and recover damages therefor, the guardian of the estate of such ward is authorized to adjust and settle said claim with the advice, approval and consent of the Probate Court, and in such settlement, if the ward be a minor, the parent or parents may waive all claim for damages on account of loss of service of such minor, and such claim may be included in such settlement * * *."
On July 10, 1958, nearly eight years after the injury and six years after the settlement, Morton Y. Reeves, as next friend of Lowanna, filed a petition in the Probate Court of Clinton County to vacate the entry authorizing and approving settlement of the claim. Such petition alleges in substance that the application for settlement and the approval thereof were based upon a police report suggesting questionable liability; that the statements contained in such report were not true; and that the settlement was not predicated on the real injuries sustained by Lowanna.
Later in the same month, a hearing was had on the petition at which testimony was taken. Appearing as witnesses were the attorney for the guardian at the time of the settlement, the attorney for Runyan and Burkhardt and Burkhardt's insurer, Mr. and Mrs. Kelley, parents of Lowanna, and Mowry and Gansheimer who witnessed the injury. Mrs. Kelley testified that she entered into the settlement reluctantly, at the urging of her attorney and against her better judgment. There was nothing in the testimony of the two attorneys to indicate fraud or collusion in the settlement. However, Mowry and Gansheimer testified that the pickup truck being driven by Runyan at the time of the injury was proceeding at a speed of 60 to 65 miles an hour, and Gansheimer denied having made or signed the statement attributed to him and referred to above. Both witnesses denied having been contacted by attorneys in reference to the collision and having been asked as to what they knew about it.
Some time after the hearing, which was before a different judge from the one who approved the settlement, the Probate Court filed an amended entry reciting, inter alia:
"The court further finds from the evidence adduced that no false or fraudulent representations were made to the mother, Barbara A. Kelley, or to this court at the time of the hearing on November 7, 1952, by either * * * [the attorney], representing the guardian, or by * * * [the attorney], representing Herman Burkhardt and Beals A. Runyan.
"However, the court further finds upon the evidence adduced that the settlement and compromise of the unliquidated tort claim of said minor against Herman Burkhardt and Beals A. Runyan was not made in the best interests of said minor and was not proper in the premises.
"Therefore, it is ordered, adjudged and decreed that the former order of this court authorizing Barbara A. Kelley, the guardian of Lowanna Sue Kelley, to execute a full and complete release and authorizing said guardian to compromise and settle said minor's unliquidated tort claim made on the 7th day of November, 1952, is hereby vacated, set aside and held for naught."
An appeal on questions of law was taken to the Court of Appeals by Runyan and Burkhardt. That court heard the matter on briefs and oral arguments of counsel, rendered an extensive opinion and entered an amazing entry of reversal, reading in part as follows:
"Upon consideration whereof the court finds that in the record and proceedings aforesaid there is error manifest upon the face of the record to the prejudice of the appellants in this, to wit: That the judgment of the trial court setting aside the former settlement order is manifestly against the weight of the evidence.
"It is, therefore, considered, ordered and adjudged by this court that the judgment and proceedings of the said Probate Court of Clinton County in favor of the said appellee, Morton Y. Reeves, next friend of Lowanna Sue Kelley and against the said appellants, Beals A. Runyan and Herman Burkhardt be, and the same hereby are, set aside, reversed and held for naught and that the former entry of settlement made by the Probate Court of Clinton County, Ohio, on November 7, 1952, is reinstated;
"That the said action be and it hereby is remanded to the Probate Court of Clinton County, Ohio * * * and that a mandate be sent to the said Probate Court of Clinton County to carry this judgment into effect."
The cause is now here for review and determination, following the allowance of a motion to require the Court of Appeals to certify the record.
Messrs. Reeves Herron, for appellant.
Mr. James M. Gorman, for appellees.
In the interests of stability and finality and in pursuance of sound policy, a settlement of an injured minor's claim for damages by his guardian in conformity with the provisions of Section 10507-19, General Code (now Section 2111.18, Revised Code), is valid and binding upon the minor in the absence of a showing of prejudicial error in connection with the proceedings or of fraud or collusion on the part of those involved. Evidence tending to show that the injuries sustained by the minor have proved more serious than indicated at the time of settlement is not in itself sufficient to vitiate the settlement, and, where the record discloses that, prior to a court approved settlement, discussion was had and inquiry made by the judge concerning the facts connected with and surrounding the injury and no fraud or collusion is apparent, a claim that the settlement was ill advised and for too small an amount is not enough to nullify it.
There are a number of persuasive reasons why a settlement, authorized and sanctioned by Section 2111.18, Revised Code, should not be invalidated except for substantial and compelling reasons. Evidence as to the circumstances surrounding the injury, usually being oral, is liable to be lost by the deaths or absence of witnesses, failure of memory on their part and other causes readily suggesting themselves.
In 27 American Jurisprudence, 852, Section 131, the following statement is made:
"* * * It would seem to be clear that if the court has effective power to authorize a compromise of an infant's rights, it should have power to bind the infant equally with the adult, and to limit his right to object to the same legal causes and to the same time as those to which the adult is limited, bearing in mind, of course, that the infant necessarily has a greater range of attack for fraud or collusion. If an infant is to have an opportunity after he becomes of age, perhaps 15 or 20 years later, to attack for mere error a decree entered with the sanction of the court upon a compromise, it would seem that it is idle to talk about the power of the court to authorize compromise in such cases."
The case of Thompson v. Maxwell Land Grant Ry. Co., 168 U.S. 451, 42 L. Ed., 539, 18 S. Ct., 121, had to do with a compromise settlement of a claim made on behalf of minors by their guardian ad litem who, although an illiterate and inexperienced woman, was represented by a qualified advisor and competent counsel. In upholding such settlement, the court said in the course of the opinion, at page 465:
"It would be strange, indeed, if when those authorized to represent minors, acting in good faith, make a settlement of claims in their behalf, and such settlement is submitted to the proper tribunal, and after examination by that tribunal is found to be advantageous to the minors and approved by a decree entered of record, such settlement and decree can thereafter be set aside and held for naught on the ground that subsequent disclosures and changed conditions make it obvious that the settlement was not in fact for the interests of the minors, and that it would have been better for them to have retained rather than compromised their claims. If such a rule ever comes to be recognized it will work injury rather than benefit to the interests of minors, for no one will make any settlement of such claims for fear that it may thereafter be repudiated. The best interests of minors require that things that are done in their behalf, honestly, fairly, upon proper investigation and with the approval of the appropriate tribunal, shall be held as binding upon them as similar action taken by adults."
The writer has read and reread the record in the instant case and is convinced, as was the Court of Appeals, that nothing is indicated therein which would require or authorize the overthrowing of the settlement made in the Probate Court of Clinton County on November 7, 1952.
Moreover, every reasonable presumption favors the validity of a judgment of a court of record, regular on its face and where the court had jurisdiction of the parties and the subject matter, and this is especially true where such judgment is challenged after a considerable lapse of time. It will be presumed that the judgment was properly rendered, and that the court acted rightfully in all respects, and proof to remove the presumption of the validity of such a judgment must be clear and convincing. 31 Ohio Jurisprudence (2d), 687 et seq., Section 237 et seq.
Despite the language used in the judgment entry of the Court of Appeals herein, it is clear that final judgment in favor of Runyan and Burkhardt was not only intended but actually rendered. This is obvious since the judgment of the Probate Court was reversed and it was ordered that "the former entry of settlement made by the Probate Court of Clinton County, Ohio, on November 7, 1952, is reinstated," and "that a mandate be sent to the said Probate Court of Clinton County to carry this judgment into effect."
A similar situation arose in the case of Bevan v. New York, Chicago St. Louis Rd. Co., 132 Ohio St. 245, 6 N.E.2d 982, certiorari denied, 301 U.S. 695, 81 L. Ed., 1351, 57 S. Ct., 924, where the Court of Appeals stated in the judgment entry:
"The judgment of the said Court of Common Pleas is reversed, because the same is against the weight of the evidence and final judgment is hereby rendered for plaintiff in error [appellee]."
At the close of the opinion in the Bevan case, it is stated:
"That part of the judgment entry of the Court of Appeals, heretofore quoted in the statement of the case, is highly erroneous. Final judgment may never properly follow a reversal on the weight of the evidence. However, irrespective of the unfortunate language used, the appellate court was right in entering final judgment for the appellee, not because the judgment below was against the weight of the evidence, but because there was no evidence legally adequate to support such judgment. In other words, there was a wrong reason for a correct result. The judgment of the Court of Appeals is therefore affirmed on the basis of its entry of final judgment."
So, in the instant case, the judgment of the Court of Appeals is affirmed on the basis of that court's directing the Probate Court of Clinton County to reinstate the entry of settlement made in that court on November 7, 1952.
Judgment affirmed.
TAFT, MATTHIAS, BELL and O'NEILL, JJ., concur.
WEYGANDT, C.J., dissents.
HERBERT, J., not participating.
In the majority opinion it is said that the journal entry of the Court of Appeals is amazing.
That this is not an understatement is evident from the fact that that court in the first part of its entry reversed the judgment of the trial court as against the weight of the evidence and then attempted to exercise authority it did not then possess, namely, to render a final judgment instead of remanding the cause to the Court of Probate for a retrial.
Now the majority of this court concludes to disregard the first part of the entry in which the Court of Appeals exercised authority it did have, and then proceeds to sanction the later part of the entry in which the Court of Appeals attempted to exercise authority it did not then have. In the always dangerous procedure of disregarding any part of a court's all-important journal entry, it would seem that the disregarded part, if any, should be the unauthorized rather than the authorized part. In the instant case this would require recognition of the reversal as against the weight of the evidence and would necessitate a remand to the trial court.