Parrent v. Midway Toyota

                              No. 80-287
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1981


MELVIN K. PARRENT,
                       Claimant and Appellant,


MIDWAY TOYOTA, Employer and
UNIVERSAL WJDERWRITERS INSURANCE CO. ,
                       Defendants and Respondents.


Appeal from:   Workers' Compensation Court
               Honorable William Hunt, Judge presiding.
Counsel of Record:
     For Appellant:
         Conner, Baiz & Olsen, Great Falls, Montana
         Tom Baiz argued, Great Falls, Montana
     For Respondents:
         Anderson, Brown, Gerbase, Cebull and Jones, Billings,
          Montana
         Rockwood Brown argued, Billings, Montana


                              Submitted:   March 26, 1981
                                Decided:
                                           APR 1 6 1981
Filed: APP     l$fff
Mr. Justice John Conway Harrison delivered                 the Opinion of
the Court.
         This   is an appeal        from   the Workers'       Compensation
Court's denial of claimant's petition to reopen a final
compromise settlement agreement entered into after claimant
injured himself in the course of his employment.
         The    issue   raised     on   this    appeal     is whether      the
Workers'      Compensation    Court     erred    in   refusing      to    allow
claimant, who is a minor, to disaffirm the "petition for
final settlement" and reopen his workers' compensation case?
         On August 18, 1975, claimant, who was then fifteen
years old, injured his lower back while in the employ of
Midway Toyota, Inc., of Great Falls, Montana.                     At the time
he was engaged in lifting heavy objects.
        Notice was properly and timely given by all parties
in    the dispute.         Defendant    accepted      liability     and   paid
claimant the appropriate amount of biweekly temporary total
disability payments from August 18, 1975, through November
15, 1976, at the weekly rate of $53.36.               On October 6, 1975,
a    lumbar    myelography     was performed          on   claimant which
demonstrated a herniated disk at the L4-5 level.                     Claimant
underwent surgery in October 1975 performed by Dr. Robert
Chambers.        The    herniated       disk    was    removed      and    the
posterolateral fusion from the fifth lumbar vertebrae to the
sacrum was performed.
        On February 1977 claimant and defendant entered into
a final settlement of the claim for 150 weeks of permanent
partial disability benefits totaling $6,136.40, less credit
in the amount of $640.32 for the permanent partial payments
made after November 16, 1976.
        Claimant     has    been   employed     in the      oil    fields of
Montana since his graduation from high school in June 1978.
In the per forrnance of his work, he occasionally experienced
low back pain when engaged in heavy lifting or straining,
but he has been able to perform all work.
           Tom Mazurek, an adjuster, represented defendant in
the   settlement negotiations.              He negotiated           with   the
claimant's mother (natural guardian) and claimant directly.
The petition for final settlement, based on a 23 percent
impairment         rating,   was signed by claimant only- was
                                                        and -
witnessed by a friend.            Claimant's mother was present at the
time he signed the agreement.             She did not object to the
signing, nor did she or any other person of legal age or of
"legal guardian           status" cosign        the    agreement.     Later,
claimant and his mother requested that the money be paid in
a   lump    sum    amount.     The Workers'       Compensation Division
denied the request.
           Claimant later filed a petition to reopen his claim
pursuant to section 39-71-204, MCA.                   At the hearing, the
Workers' Compensation Court found no evidence to indicate
that there was any increase in claimant's disability from
the   time    of    the   final    settlement    to    the   date    of    this
hearing.      The Workers ' Compensation Court found no evidence
of fraud, misrepresentation or deceit by defendant in the
settlement.
           The Workers' Compensation Court concluded:
           "The claimant's guardian participated fully
           in consideration of the offered final
           settlement and though did not actually sign
           the final settlement petition, she neverthe-
           less ratified and approved it on behalf of
           her ward, the claimant, to the same legal
           effect as if she had actually signed the
           petition   . . ."
           Claimant argues this conclusion is contrary to the
law.
         Claimant was a minor at the time the final compromise
settlement agreement was entered into between the parties.
The petition for final          settlement    is a contract, and
contract principles, therefore, must be applied to determine
the    petition's    validity   and   enforceability.      Kienas   v.
Peterson (1981),            Mont.       ,   624 P.2d    1, 37 St.Rep.


         The pertinent statutes are:
         Section 28-2-201, MCA:
         "Who may contract.   All persons are capable
         of contracting except minors, persons of
         unsound mind, and persons deprived of civil
         rights.   Minors and persons of unsound mind
         have only such capacity as is defined by this
         part, 28-10-104, and Title 41, chapter 1."
         Section 28-10-104, MCA:

          --__--
         "Who m a y --E E o i n t a n aqent, who may be an
                     a   -------I-      --
                                         -
         agent.      Any person having capacity to
         contract, except a minor, may appoint an
         agent, and any person may be an agent."
         Section 41-1-302, MCA:
         "Contracts of minors--disaffirmance. A minor
         may make a conveyance or other contract in
         the same manner as any other person, subject
         only to his power of disaffirmance under the
         provisions of this chapter and to the
         provisions of Title 40, chapter 1."
         Section 41-1-304, MCA:

          - -
         "When minors--may disaffirm.   In all cases
         other than those specified by 41-1-303,
         41-1-305, and 41-1-306, the contract of a
         minor may, upon restoring the consideration
         to the party from whom it was received, be
         disaffirmed by the minor himself, either
         before his majority or within a reasonable
         time afterwards, or in case of his death
         within that period, by his heirs or personal
         representatives."
         Section 41-1-304, MCA, allows a minor to disaffirm
his contract.       Because the sixteen-year-old claimant signed
the     petition         for     final       settlement           in   his     own      behalf,      he

a l o n e was t h e c o n t r a c t i n g p a r t y .

            Tom Mazurek c h o s e t o c o n t r a c t w i t h t h e c l a i m a n t ; h e

must,      therefore,          be prepared              t o a c c e p t t h e consequences of

c l a i m a n t ' s d i s a f f i r m a n c e of    the petition.              The p e r s o n who

d e a l s w i t h a n i n f a n t d o e s s o a t h i s own p e r i l .                 Niemann v .

D e v e r i c h ( 1 9 5 0 ) 98 Cal.App.2d               787, 221 P.2d 1 7 8 .

            Defendant c l a i m s t h a t               t h e mother,       Hermoine P a r r e n t ,

was p r e s e n t a t a l l t i m e s d u r i n g t h e s i g n i n g o f t h e c o n t r a c t ;

t h a t t h e mother approved of t h e c o n t r a c t ;                    t h a t t h e r e was no

objection t o the contract; t h a t the adjuster negotiated with

t h e mother         and t h e c l a i m a n t d u r i n g t h e weeks p r i o r            t o the

signing        of    the     contract         and       that     after      the    contract         was

s i g n e d , t h e m o t h e r was s t i l l a w a r e o f t h e c o n t r a c t r i g h t s o f

c l a i m a n t and d i d n o t o b j e c t t o t h e same.                   Because of          this

c l o s e r e l a t i o n and c o n t i n u o u s a w a r e n e s s o f       t h e mother,         the

c o n t r a c t is e n f o r c e a b l e .   W disagree.
                                              e

            It      is     immaterial         that           Hermoine     Parrent        may      have

a d v i s e d and c o u n s e l e d c l a i m a n t w i t h r e s p e c t t o h i s w o r k e r s '

compensation claim.                    The m o t h e r       is t h e n a t u r a l g u a r d i a n of
t h e minor c l a i m a n t , b u t t h i s r e l a t i o n o n l y a f f e c t s h e r r i g h t

t o t h e c u s t o d y o f t h e m i n o r and d o e s n o t e n l a r g e h e r r i g h t s

to    the      property         of     the     minor.            Claimant         was    the      sole

contracting party.                   H e i s t h e o n l y p a r t y t h a t bound h i m s e l f

legally to           the     contract.             As    a    minor,     he    is e n t i t l e d    to

d i s a f f i r m and r e s c i n d t h e f i n a l s e t t l e m e n t .

            C o n t r a r y t o d e f e n d a n t ' s a r g u m e n t i n t h i s a r e a i s Gage

v.    Moore       (Okla.       1 9 4 8 ) , 1 9 8 P.2d         395.      I n Gage a f o u r t e e n -

year-old         boy b r o u g h t a n a c t i o n t o r e s c i n d a c o n t r a c t .            The

defendant           refused,         and     suit       was    brought.           The    defendant
c o n t e n d e d t h a t t h e p l a i n t i f f ' s f a t h e r had a c q u i e s c e d i n and

ratified       the      purchase       and,    for    that       reason,     the       contract

s h o u l d n o t be r e s c i n d e d and a v o i d e d by t h e p l a i n t i f f .           In

rejecting             this       contention            and         finding         for         the

fourteen-year-old                plaintiff,           the     court,       quoting            from

Bombardier        v.     Goodrich       (1920),       94 V t .      208,    110 A .         11, 9

A.L.R.     1028, s t a t e d :

           " ' T h e r i g h t o f an i n f a n t t o r e s c i n d h i s
           c o n t r a c t is u n a f f e c t e d by t h e f a c t t h a t h i s
           f a t h e r was p r e s e n t a d v i s i n g and a p p r o v i n g t h e
           transaction.           The a s s e n t o f t h e f a t h e r a d d s
           n o t h i n g t o t h e b i n d i n g f o r c e o f an i n f a n t ' s
           promise.          . ."  1 9 8 P.2d a t 396.

           I t is t h e p o l i c y of t h e law t o d i s c o u r a g e a d u l t s from

contracting with               a minor.        Tom Mazurek           testified         he     knew

claimant       was       a    minor     at    the     time       claimant      signed          the

petition         for         final    settlement;           yet,     Mazurek        was        not

discouraged            from o b t a i n i n g c l a i m a n t ' s    s i g n a t u r e on      the

petition.

           The     insurer,          adjuster        Mazurek        and     the    Workers'

Compensation            Division        h a v e much        greater        expertise           and

knowledge i n t h e a r e a o f w o r k e r s '        compensation law t h a n have

claimant        and      his     mother.         We     are      dismayed      that         these

knowledgeable                parties    overlooked           simple        contract           law.

Defendant e r r e d           in not requiring claimant's legal guardian

t o s i g n t h e p e t i t i o n f o r f i n a l s e t t l e m e n t on b e h a l f     of    and

i n p l a c e of claimant himself.

           The f i n a l compromise s e t t l e m e n t i s s e t a s i d e , and w e

remand      this       case     to    the    Workers'       Compensation           Court       for

proceedings c o n s i s t e n t w i t h t h i s Opinion.
We concur: