Stroyd v. Traction Co.

Opinion by W. D. Poster, J., This action was brought by Robert Stroyd as the father and next friend of his minor son, the appellant, to recover damages for injuries alleged to have been suffered by the infant through the negligence of the defendant company. The action was prosecuted in regular order and a verdict in favor of the plaintiff duly obtained. The attorney of record who had been duly [248] appointed by the prochein ami received from the defendant company the amount of the verdict, gave an acquittance therefor and entered satisfaction of the verdict upon the record. The only question for determination is the authority of the attorney to receive the- amount of the verdict and give a sufficient acquittance therefor. The infant, the appellant, having become of age, presented to the court below a petition praying that the satisfaction of the verdict be stricken off and that judgment be entered upon the verdict as rendered. While it would undoubtedly be safer for a • defendant in such a case to wait until a judgment had been regularly entered before paying the claim, there was in the petition no suggestion that the verdict had been entered by collusion; the appellant is satisfied with the amount of his damages as ascertained by the verdict, but he demands judgment upon that verdict. We may, therefore, dispose of the case as if a judgment had been regularly entered and subsequently satisfied by the attorney of record. A prochein ami is one appointed by the court, or admitted without formal appointment, to prosecute for an infant, to the end that the rights of the infant may not be prejudiced for the want of an action, and that there may be a nominal plaintiff who is legally responsible for the costs.. Pie may make the arrangements necessary to facilitate the determination of the case in which the rights of the infant are involved, but he is subject to the control of the court, by which he may be removed and a new representative of the- minor appointed in his stead. The nature of the duties which a prochein ami is called upon to discharge does not require that he should be vested with a discretion to compromise or bargain away the rights of the minor, and he is without power. to bind the infant by a contract of that nature: O’Donnell v. Broad, 6 Kulp, 435; 149 Pa. 24; Kingsbury v. Buckner, 134 U. S. 650, 680; Edsall v. Vandemark, 39 Barb. 589; Isaacs v. Boyd, 5 Porter (Ala.), 388. It has been held in some courts that the authority of the prochein ami ends when the suit is prosecuted to judgment, and, therefore, that he has no authority to receive the money. We have been able to find but one reported case in which the question has been raised in this State, viz: O’Donnell v. Broad, 6 Kulp, 460, in which it was held that while the prochein ami did not have authority to compromise the claim by accepting [249] less than the amount of the judgment in full discharge thereof, yet the amount so paid was to be taken as a payment on account, and was accordingly credited upon the judgment. The conclusion reached in that case by Judge Rice, who then sat in the common pleas, is undoubtedly sustained by the doctrine of the English cases. It was held in Morgan v. Thorne, 7 M. & W. 400, that the prochein ami was to be considered as an officer of the court, specially appointed to look after the interests of the infant, on whom the judgment in the action is consequently binding, and he cannot be allowed, on attaining full age, to commence fresh proceedings founded on the same cause of action. And it was in that case distinctly asserted “that the defendant, in this and all similar cases, is perfectly safe in paying the damages recovered.” The soundness of this determination was recognized without question in Collins v. Brook, 4 H. & N. 270, in which case it was distinctly ruled that the attorney appointed by the prochein ami might rightfully receive, for the use of the infant, in the absence of a regularly appointed guardian, the amount of the judgment recovered. When the prochein ami has duly appointed an attorney to prosecute the proceedings the latter becomes the attorney in the case, he is the attorney for the infant, to whom he must answer. The judgment in this case was affirmed, on appeal, by the Exchequer Chamber: Collins v. Brook, 5 H. & N. 700. In the case of the Baltimore & Ohio Railroad Company v. Fitzpatrick, 86 Maryland, 619, the opinion of the court reviews and follows the English decisions, and upon a state of facts almost identical with those here presented it was held that the attorney was clothed with authority to receive the money recovered of the defendant, give a sufficient acquittance therefor, and direct satisfaction of record. The authority of the prochein ami, and of the attorney appointed by him, to collect from the defendant and satisfy the judgment, cannot be exercised regardless of the right and power of a regularly constituted guardian having charge of the infant’s estate. Such right of the prochein ami or his attorney is subordinate to that of the lawfully constituted guardian, and where such guardian exists no person other than the guardian himself, or some person deriving authority from him, can legally receive and receipt for money due the ward. In the pres [250] ent ease there was no guardian, and payment by the defendant to the attorney of record was binding upon the infant. The order of the court below was free from error and the judgment is affirmed.