Morris v. Standard Oil Co.

This is an action for damages for personal injuries, brought by the plaintiff, Milton Morris, a minor, by his guardian ad litem, J. M. Morris, father of plaintiff, against the Standard Oil Company, a corporation.

The facts in the case are these: Plaintiff’s age at the time of the accident was thirteen years. He was riding a bicycle in a southerly direction on the west side of Imperial Avenue, north of Seventh Street, in the" city of Calexico, Imperial

On the trial the jury rendered a verdict in favor of plaintiff for twenty-five thousand dollars and on June 19, 1922, judgment was entered for that amount. On June 28, 1922, defendant gave notice of intention to move for a new trial, upon which motion the court ruled as follows on July 31, 1922:

“The said motion for a new trial is hereby granted on the grounds of excessive damages having been awarded by the jury and insufficiency of the evidence to justify the verdict; provided, however, that if plaintiff accepts within thirty days $12,000 damages in lieu of the amount awarded in the jury’s verdict then the motion for a new trial is hereby denied.”

Five days later respondent filed an “Election to Remit” in the following words:

“Comes now the above-named plaintiff by A. L. Hubbell his attorney, and elects to remit the sum of Thirteen Thousand Dollars from the judgment, rendered in favor of plaintiff on the 19th day of June, 1922, in accordance with order of court herein granting a new trial unless such remission is made.

“Plaintiff claims interest on said judgment from the 16th day of April, 1921, the date of judgment fixing plaintiff’s right to a recovery of damages.

“Plaintiff stipulates and agrees to stay execution until the 20th day of August, 1922.

“A. L. Hubbell,

“Attorney for Plaintiff.”

The defendant, on August 18, 1922, gave notice that it “hereby appeals to the Supreme Court of the State of California, from all of that portion of that certain order of said Superior Court made and entered in said action on July 31, 1922, denying defendant’s motion for a new trial therein as follows: ‘provided however, that if plaintiff accepts within

There was a former appeal in the cause to the district court of appeal of the first appellate district, division number one (37 Cal. App. Dec. 213). On that trial respondent recovered judgment for the same amount—twenty-five thousand dollars—and an appeal was taken by appellant on two grounds—contributory negligence and excessive damages appearing to be given under the influence of passion or prejudice. The judgment was reversed on the ground of excessive damages and a petition for hearing in this court was granted. The opinion of the district court of appeal, except the last sentence thereof, was adopted in the decision herein and the judgment was reversed and a new trial granted with the following direction to the lower court:

“There is no necessity for again trying any of the issues of the case except that of the amount of damages. All the other issues are sufficiently disposed of in the foregoing opinion, and the evidence does not indicate any necessity for further investigation thereof in the court below.

“The judgment is reversed and the cause is remanded to the lower court for a new trial solely upon the issue of the amount of damages, with direction to that Court, upon the settlement of that issue, to render judgment in favor of the plaintiff for the amount so found.” (Morris v. Standard Oil Co., 188 Cal. 468 [ 205 Pac. 1073 ].)

Before considering appellant’s final point that the amount of the judgment for twelve thousand- dollars is still excessive within the meaning of subdivision 5, section 657 of the Code of Civil Procedure, we will dispose of its contention that: “Either the "judgment entered and docketed ... on June 19, 1922, was final in the court in which it was pronounced when the remission was filed, or there was no judgment at all, because the motion for a new trial had been granted.” It is argued that the signature of the attorney to the remission was not sufficient to bind respondent—that it should have been signed by the guardian ad litem, that

[1] With respect to the first point it is contended that the “remission which has the effect of waiving more than half of the judgment was not signed either by the guardian ad litem, or by any general guardian; it is signed only by the attorney for plaintiff”; and that the “plaintiff is a minor and unless the consent and agreement is absolutely binding on the plaintiff and his guardian, the plaintiff can at any time before he is twenty-one years of age repudiate the remission—even though the judgment as reduced were fully paid—without refunding a dollar of the judgment so paid. In so doing he could not even be embarrassed by the assertion that his guardian had signed the agreement or received the money. His guardian ad litem or a general guardian could procure the invalid remission and satisfaction to be annulled, dismiss the action and commence another, or proceed to a third trial and judgment in the present case. The defendant has the right to a final, binding adjudication.” The guardian ad litem engaged the attorney. A guardian ad litem is: “A person appointed by a court to look after the interests of an infant when his property is involved in litigation. He manages the defense of an infant defendant, where there is no parent, or other guardian. . . . He is a species of attorney, whose duty is to prosecute for the infant’s rights, and to bring those rights directly under the notice of the court. He can do nothing to the injury of the infant. His duty ends when the suit ends, when it is prosecuted to final judgment.” (Anderson’s Dictionary of Law, p. 498.) In Beliveau v. Amoskeag Mfg. Co., 68 N. H. 225 [ 73 Am. St. Rep. 577 , 44 L. R. A. 167 , 40 Atl. 734 ], it was said: “The representative may, in the exercise of an undoubted authority, employ an attorney at law in the management and control of the suit ... In such a ease, the attorney becomes clothed with the ordinary powers pertaining to an attorney of record. . . . His authority is as extensive as it is in other cases, and the infant, through his representative, is bound by the attorney’s acts within the ordinary scope of his authority the same as an adult would be, and has a like remedy against the attorney

As to the second proposition—that the court did not approve the remission—appellant cites sections 372 and 1769 of the Code of Civil Procedure. We shall assume for the ■ purposes of the decision that the remission constituted a compromise or a compounding of the claim within the meaning of those sections.

It is a fact that there was no formal “approbation of the court. ’ ’ The statute does not require that the approval shall be expressed in any particular manner or that it shall, in terms, be entered in the minutes. We have found no authority in this state as to how the approval is to be given. It has been held elsewhere that in the case of a sale of real property of a minor, the confirmation by the court of' the sale required by the statute need not necessarily appear by a formal entry of record; it is sufficient if the approval appear from the clerk’s minutes, or if it can be gathered from the whole record. (Woerner’s American Law of Guardianship, 275; Henry v. McKerlie, 78 Mo. 416 , 430; Gilbert v. Cooksey, 69 Mo. 42 .) The same rule was applied in Daffron v. Modern Woodmen of America, 190 Mo. App. 303 [ 176 S. W. 498 ], involving a settlement of a void benefit policy by a guardian ad litem. There is authority for the proposition that the approval of the court may be implied from the entry of judgment in regular course. (Tripp v. Gifford, 155 Mass. 108 [ 31 Am. St. Rep. 530 , 29 N. E. 208 ]; Walsh v. Walsh, 116 Mass. 377 [ 17 Am. Rep. 162 ] ; Bunnell v. Bunnell, 111 Ky. 566 [ 64 S. W. 420 , 65 S. W. 607 ]; Missouri Pacific Ry. Co. v. Lasca, 79 Kan. 311 [17 Ann. Cas. 605, 21 L. R. A. (N. S.) 338 , 99 Pac. 616 ]; Burke v. Northern Pac. Ry. Co., 86 Wash. 37 [Ann. Cas. 1917B, 919, 149 Pac. 335 ]; Franklin Sav. Bank v. Taylor, 53 Fed. 854 [ 4 C. C. A. 55 ]; Glover v. Bradley, 233 Fed. 721 [Ann. Cas. 1917A, 921, 147 C. C. A. 487 ]; Robison v. Floesch Const. Co., 291 Mo. 34 [ 20 A. L. R. 1239 , 236 S. W. 332 ].) We quote from Beliveau v. Amoskeag Mfg. Co., supra, that it is not in every instance necessary to formally bring the settlement to the attention of the court. “We apprehend it makes no difference, practical or legal, whether the agreement of the counsel to make them is expressed orally in open court, and the entries are there

[3] It would be idle to hold, under the circumstances presented here, that the court did not give its approbation to the remission with regard to the best interests of the minor. In deciding that twelve thousand dollars was the full value of respondent’s claim for damages the court must necessarily have concluded that in executing the remission the attorney secured for respondent all that he was entitled to receive. In strictness, the guarding of the best interests of respondent was not an element in the inquiry as to what would be suitable damages for the injury; but the determination of that question necessarily involved the other—

On the third proposition—that an attorney cannot bind his client, whether minor or adult, by joining in a remission of a judgment which has been entered and docketed—appellant relies on subdivision 2, section 283 of the Code of Civil Procedure. With reference to this subdivision it is urged that “it is directly and primarily applicable”-—that after judgment an attorney has power only upon the payment thereof, and not otherwise, to discharge the claim or acknowledge satisfaction of the judgment. This contention is the equivalent of a claim that when a money judgment in favor of a minor has been entered and docketed, the authority of the attorney for the guardian ad litem is limited to the discharge of the judgment and to prosecute the appeal. This, in effect, would be to deny to the minor one of the incidents of the remedy of a motion for a new trial— that is to say, the right to accept a less sum where there is no suggestion the guardian ad litem does not consent to the reduction or that the court does not give its approval. This is not the law. [4] Where the authority of the attorney is not disputed by the client he may after the entry of judgment represent the client on a motion for a new trial and in the absence of fraud or mistake agree to the reduction of the judgment. The attorney’s execution of the remission is merely a step in fixing the amount of the judgment. It follows that subdivision 2 has no application where a motion for a new trial has been made and is undetermined.

Appellant contends that the above claim is fortified by section 1810b of the Code of Civil Procedure, to the effect that “if said judgment is for money, and there is no general -guardian of said minor, one shall be appointed by the court, and the entire amount of the judgment shall be paid to and cared for by such general guardian, under the control of the court.” This contention involves the claim, already disposed of, that the entry and docketing of the judgment for twenty-five thousand dollars on June 19, 1922, precluded the reduction thereof. It would appear from the reply brief of appellant that in a letter to the attorney for respondent, appellant inquired whether section 1810b had been complied with. The reply was in the affirmative. As

It is clear from the foregoing that the signature of the guardian ad litem was not necessary to render the remission binding on respondent, that the court gave its approval, and that the act of the attorney in executing the remission before the motion for a new trial was determined was the act of the guardian ad litem and binding on respondent even though the judgment for twenty-five thousand dollars had been entered and docketed.

This brings us to consider appellant’s final contention that the reduced judgment of twelve thousand dollars is still so grossly excessive as to appear to have been given under the . influence of passion or prejudice. On appeal this presents a question of law, that is to say, whether or not the trial court abused its discretion in fixing the sum of twelve thousand dollars.

The injuries of respondent, according to the uncontradicted testimony, were to the right leg, the flesh being torn off from a point four inches above the knee to a point five inches below the knee, three-fourths of the way around the leg, and the tissue of the knee joint being torn open “one inch so you could see the inside of the joint”; the tissues of the left ankle and foot were badly tom, the injury being of the same nature as that of the right knee. Dirt and clothing were ground into the wounds, causing infection. The flesh that was not actually torn off, “was so bruised and killed by the physical violence that it later sloughed off” and an infection set in adding to the loss of tissue. The boy suffered greatly and for two or three weeks after the accident it was necessary to give him opiates. Six weeks afterward, from twenty to.thirty square inches of skin were grafted on the raw places on the left ankle and foot and on the seventh week forty square inches were grafted on the right knee. In order to perform the original operation

[7] Respondent makes several contentions in support of the claim that the judgment was never modified and that, therefore, it stands for the original sum of twenty-five thousand dollars. It is first contended that the order on the motion for a new trial not having been given in open court should have been signed by the judge, and not having been so signed it was a nullity. The minute entry shows the order was made in open court and it is not claimed that any steps were taken to have the minute entry amended. Nor does it appear that the point was otherwise made in the-court below. [8] It is next urged “that the trial judge had not jurisdiction to require the respondent to accept a reduced judgment or have a new trial, after a second jury had rendered a verdict for the same amount given by the first jury.” This contention proceeds upon the theory that as this court remitted the case for retrial on the sole issue of the amount of the damages, when the jury fixed the amount the court had no alternative but to accept such sum as final. This point is without merit, for it was the duty of

[9] Respondent in the “election to remit” incorporated a demand for interest on the reduced judgment from April 16, 1921—the date of the entry of the first judgment. It is urged here that the liability of appellant having been fixed on the first trial and confirmed on appeal, it became the law of the case, and the subsequent judgment should bear interest from the date of the former. Interest has relation to an ascertained principal sum. The amount of the judgment in this case after reversal was not ascertainable until the question of excessiveness presented by the motion for a new trial had been determined, and, hence, appellant would not meanwhile be in default for interest. (Cox v. McLaughlin, 76 Cal. 60 , 67 [ 9 Am. St. Rep. 164 , 18 Pac. 100 ].)

Respondent’s final point, that the appeal should be dismissed because the complaint and answer were not printed in the record, and that this cannot be dispensed with, is sufficiently answered by the concluding portion of section 953c of the Code of Civil Procedure (Stats. 1919, p. 261).

Judgment affirmed as modified.

Wilbur, C. J., Lennon, J., Waste, J., Myers, J., Kerrigan, J., and Seawell, J., concurred.