Fox v. Fairchild

98 So. 61 | Miss. | 1923

Smith, C. J.,

delivered the opinion of the court.

This is an action at law brought by the appellees, minors, by a next friend, to recover of the appellant damages for the death of their brother, Wilford Fairchild, an employee of the appellant, whose death is alleged to have been caused by the wrongful act of the appellant. A special plea by the appellants sets forth that H. L. Fairchild was duly appointed guardian of the appellees, naming them, and by authority of the proper chancery court and “for a valuable consideration executed a release and discharge to this defendant for all causes of action or suits the said Osie Lena Fairchild, the said Ivan Fairchild, the said Condie Fairchild, and the said Duffie Fairchild might then have against this defendant on account of any alleged injury sustained by their said brother, the said Wilford Fairchild, deceased.”

A copy of the decree of the chancery court authorizing the settlement and of the release executed by the guardian were filed with the plea, from which it appears that the consideration for the release was the payment to the guardian of the sum of sixty-two dollars and fifty cents for each' of the guardian’s wards. A demurrer to this plea was sustained, and the’cause proceeded to trial, resulting in a judgment for the appellees in the sum of ten thousand dollars.

Under section 2421, Code of 1906 (Hemingway’s Code, section 1982), a guardian may be authorized by an order of a chancery court or chancellor to sell or compromise claims due their wards. ' >

The only contentions of counsel for the appellees to which we deem it necessary to specifically respond are: (1) That the claims which the statute empowers the chancery court or chancellor to authorize a guardian to settle are such only as arise ex contractu; and (2) that the chancery court is without jurisdiction to determine the amount of the damages recoverable for a wrongful death, the right to which is created and measured by chapter 214, Laws of 1914.

The contention that damages arising ex delicto are not within section 2421, Code of 1906 (Hemingway’s Code, section 1982), is based upon the decisions of this court that the word “claims” in the statute dealing with the probate of claims against the estate of a, decedent does not embrace claims of that character. An examination of those decisions will disclose that the ground thereof lias no application here. The language of'the statute here in question is broad enough to cover claims of every character, and the authority thereby conferred upon the court to authorize the settlement of claims is one that is peculiarly appropriate to such ás are of an unliquidated character.

The order of the chancery court by which appellees’ guardian was authorized to settle their claims against the appellant was not rendered in a proceeding to enforce their right of recovery against the appellant under' the statute creating it, but was simply an order approving a prospective adjustment thereof which had been agreed on by the appellant and their gfiardian. It is beyond doubt that each adult beneficiary entitled to share in the damages for a wrongful death under chapter 214, Laws of 1914, has the right to compromise and settle his claim therefor, and section 2421, Code of 1906 (Hemingway’s Code, section 1982), was meant to confer upon the court the power to authorize guardians to settle for their wards any claims the wards could settle for themselves were they adults.

The judgment of the court below will be reversed, and the cause remanded.

Reversed and remanded.