Summary
In Y. M.V.R. Co. v. Whittington, 191 Miss. 776, 4 So.2d 343 (1941), the duty of the parent to his child in the negotiation for the settlement of the child's claim is considered.
Summary of this case from Ohio Casualty Insurance v. MallisonOpinion
No. 34702.
October 27, 1941.
CONTRACTS.
Where father, in order to look after interests of minor daughter, attended conference looking toward settlement of lawsuit wherein daughter had recovered judgment against railroad for injuries, father's agreement to accept cash settlement, which he considered inadequate, provided railroad would pay to him the expenses incurred by him in connection with litigation constituted an "illegal contract," unenforceable by the father, since it impaired or tended to impair the fidelity of a party thereto to a third person with whom such party's relations were of a fiduciary character.
APPEAL from the circuit court of Amite county, HON. R.E. BENNETT, Judge.
E.H. Ratcliffs, of Natchez, and Lucius E. Burch, Jr., Frank F. Roberson, and Clinton H. McKay, all of Memphis, Tennessee, for appellant.
The alleged agreement is void because against the public policy which favors the protection of minors and the integrity of fiduciaries.
Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545 (1928).
The bargaining of any fiduciary tending to impair fidelity is illegal.
6 Williston, Contracts (Rev. Ed. 1938), Sec. 1737; Brown v. Peterson, 27 Ariz. 418, 233 P. 895 (1925).
Plaintiff's alleged bargain is similar to a bargain for private advantage at the expense of a corporation which is illegal.
6 Williston, Contracts (Rev. Ed. 1938), Sec. 1736; Restatement, Contracts (1932), Sec. 569.
Analogous also are bargains for the custody of a minor child in which the state has a paramount interest.
Restatement, Contracts (1932), Sec. 583 (1); 6 Williston, Contracts (Rev. Ed. 1938), Sec. 1744 A.
Gordon Gordon, of Liberty, for appellee.
Appellant's contention that this agreement is void because it is against the public policy is almost too frivolous to lend itself to argument. Attorneys for appellant have here again attempted to inject into this suit a matter which was not considered at all by the court below on pleadings or testimony. There is nothing in the record to show that the parent is trying to enrich himself at the advantage of his minor child. There was no dereliction on the duty of the parent to see that his child was fairly treated. It is a mere shadowy attempt of attorney for appellant to read into the record something that might infer that Mr. Whittington was attempting to take unfair advantage of the railroad company and his child.
Argued orally by E.H. Ratcliffe and Frank F. Roberson, for appellant.
This is an action begun by the appellee in the court of a justice of the peace to enforce an alleged promise of the appellant to pay him the sum of $95 and interest thereon. The appellee's evidence in support of this promise is in substance as follows: In September, 1932, Mary Whittington, a minor daughter of the appellee, recovered a judgment against the appellant for a personal injury in the Circuit Court of the Second Judicial District of Tallahatchie County for $12,500, the cost in the case being taxed against the appellant. While an appeal therefrom to the Supreme Court was pending, Mary, her attorney, and the attorney who represented the railroad company in that case, met for the purpose of discussing a compromise of the lawsuit. The appellee herein, the father of Mary, attended and participated in this conference by invitation, from whom does not appear, "to come up and see whether it was all right or not." The appellee and his three other daughters, Juanita, Margaret and Letitia, in obedience to subpoenas therefor attended the trial of the case, in which the judgment was rendered, as witnesses for the plaintiff. They failed to prove their attendance as such and consequently the railroad company did not become liable therefor under the judgment against it. The attorney for the railroad company offered $2,800 in settlement of Mary's judgment for $12,500. The appellee considered this too small an amount, but stated at the conference he would approve it provided the railroad company would pay to him the expense incurred by him in the litigation, to which he says the attorney for the railroad company agreed. Thereafter, the $2,800 was paid to Mary and her attorney, but the railroad company when called on some time thereafter to comply with its attorney's promise to pay the appellee this $95 declined to do so on the ground that no such promise was made. The appellee and his daughters, Juanita and Margaret, lived in Amite County, and his daughter Letitia lived about twenty miles from the county seat of Tallahatchie County. He paid his and their expenses in attending the trial, and this expense is what he says the attorney for the railroad company agreed to pay. He says, however, that it was agreed that his compensation should consist of the mileage and per diem to which these witnesses would have been entitled had they proved their attendance, the aggregate of which was agreed to be $95. His daughters afterwards assigned to him whatever rights they might have had under this promise.
The error assigned is the refusal of the court below to direct a verdict for the appellant. Several reasons are advanced in support of this assignment, but it will be necessary for us to consider only one, which is that this promise is not of the character that the courts will enforce. The appellee attended this compromise conference manifestly in his daughter Mary's interest, and having assumed so to act, it became his duty throughout the conference to remain loyal to and serve only her. Instead of discharging this duty and remaining loyal to Mary, he transferred his allegiance, in part at least, to the railroad company for a consideration personal to himself, and at best attempted the impossible, i.e., to serve two masters with conflicting interests. This contract is therefore within the category of such as impair or tend to impair the fidelity of a party thereto to a third person with whom his relations are of a fiduciary or confidential character. Such contracts are illegal and will not be enforced by the courts. This is such an elementary rule of law as not to require authority to support it, but if such be desired, it will be found in Spinks v. Davis, 32 Miss. 152; 2 Rest. Cont., Sec. 570; 17 C.J.S., Contracts, Sec. 198; 12 Am. Jur. Contracts, Sec. 179; 6 Williston on Contracts (Rev. Ed.), Sec. 1737. The court below erred in not directing a verdict for the appellant. Its judgment therefore will be reversed and the cause will be dismissed.
So ordered.