Swartz v. Filipelle

KERRIGAN, J.

This is an appeal from a judgment in favor of the defendants in an action brought by the plaintiff through her guardian

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litem, for personal injuries sustained by her through the alleged negligence of the defendants.

The single question involved on this appeal is whether or not the plaintiff, having upon an order of the probate court, after a hearing, compromised and settled with the defendants an action for damages brought by her general guardian some

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two years prior to the commencement of this action, may maintain this action without restoring or offering to restore the money received in such settlement, both actions being for the same injuries.

At the trial of the case, after the plaintiff had introduced evidence tending to support the allegations of the complaint, the defendants introduced the petition which had been filed in said probate department for leave to compromise and settle the former action. They also introduced the order of that court authorizing such settlement upon payment to the guardian of Mary Swartz of the sum of one thousand dollars and of plaintiff’s attorney’s fees and costs in that action. Over wholly untenable objections of the plaintiff, the defendants also introduced in evidence the contract of settlement entered into pursuant to said order of court, under the terms of which said guardian, in “consideration of the payment to him of one thousand dollars ... in his individual capacity and as the guardian of the person and estate of Mary Swartz, a minor, does hereby acknowledge full payment and satisfaction of each and every claim or demand of damages, or otherwise, had or claimed by him, either individually or as guardian of the person and estate of Mary Swartz, a minor, or by the said Mary Swartz, a minor against” the defendants.

Plaintiff claims that under the law in this state neither the return of the consideration nor offer thereof, received under a settlement or release in an action obtained by the fraud of the other party thereto, is a condition precedent to the maintenance of another action for the same injuries; and she cites