Belkner v. Preston, 6869

Decision Date31 January 1975
Docket NumberNo. 6869,6869
Citation115 N.H. 15,332 A.2d 168
PartiesMary Lou BELKNER, Administratrix of the Estate of Denise Royer v. Robert PRESTON et al.
CourtNew Hampshire Supreme Court

Devine, Millimet, Stahl & Branch, Manchester (Shane Devine, Manchester, orally), for plaintiff.

Eaton, Eaton, Moody & Solms and Wiggin, Nourie, Sundeen, Pingree & Bigg and Jeffrey B. Osburn, Manchester, for defendant Robert Preston.

Sulloway, Hollis, Godfrey & Soden and Martin L. Gross, Concord, for defendant Boston & Maine Corp.

Kfoury & Williams and Sheehan, Phinney, Bass & Green and Joseph F. Devan and Claudia Damon, Manchester, for defendant Anderson, Moore & Preston Oil Co., Inc.

KENISON, Chief Justice.

These tort actions for negligence and consequential damages arise from an accident that occurred in Manchester on July 22, 1970, in which plaintiff's decedent, Denise Royer, sustained extensive personal injuries when she fell, allegedly due to hazardous conditions maintained by defendants. Litigation was prosecuted by Royer in Hillsborough County Superior Court against Robert Preston, Boston & Maine Corp., and Anderson, Moore & Preston Oil Co., Inc., until her death on June 12, 1972. Belkner, Royer's mother and administratrix, moved to be substituted as plaintiff in the case on May 25, 1973. Defendants filed motions to abate in reliance on RSA 556:10. At a hearing on defendants' motions, Mullavey, J., granted plaintiff's motion to transfer without ruling the question of whether the limitations period of RSA 556:10 (under which the time allowed for the administrator to be substituted after the decease of the plaintiff depends on the number of terms of the superior court in the county where the action is brought) violates plaintiff's right to equal protection of the laws. U.S.Const. amend. XIV.

By providing for the survival of tort actions after plaintiff's death, RSA 556:9-556:14 created a new cause of action in this State. Ghilain v. Couture, 84 N.H. 48, 54, 146 A. 395, 399 (1929). RSA 556:9 (Survival of Tort Actions) states that '(a)ctions of tort for physical injuries to the person . . . shall survive to the extent, and subject to the limitations, set forth in the five following sections, and not otherwise.' RSA 556:10 (Pending Actions) limits the extent of survival by specifying that '(i)f such an action is pending at the time of the decease of one of the parties it shall abate and be forever barred, unless the administrator of the deceased party, if the deceased party was plaintiff, shall appear and assume prosecution of the action before the end of the second term after the decease of such party . . ..'

At the time RSA 556:10 was originally enacted (P.S.1891, ch. 191 § 9), nine of the State's ten counties had two terms annually while Rockingham County had three terms. See P.S.1891, ch. 206 § 3. Currently, six counties including Hillsborough have three terms annually; four still have only two terms each year. RSA 496:1 II (Terms of the Superior Court: Time, Place) empowers the superior court to determine the times and places for holding the terms but requires that terms be held at least twice annually. See N.H. Judicial Council, Fourth Biennial Report 25-26 (1952).

If RSA 556:10 does not violate the equal protection clause of the fourteenth amendment, its application to the facts of this case would bar plaintiff's action. Costoras v. Noel, 101 N.H. 71, 72, 133 A.2d 495, 497 (1957). The first superior court term in Hillsborough County after Royer's demise began September 12, 1972, and ended January 1, 1973; the second term began on January 2, 1973, and ended April 2, 1973. Plaintiff did not file until May 25, 1973, during the third term following Royer's death.

Although equal protection of the laws does not require complete equality in the face of factual differences, it does mandate that those who are similarly situated be similarly treated. State v. Scoville, 113 N.H. 161, 163, 304 A.2d 366, 369 (1973); Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 84 L.Ed. 1124 (1940); see State v. Griffin, 86 N.H. 609, 615, 186 A. 923, 926. (opinion of Doe, C.J. 1894). Determining whether a particular statute violates this mandate entails consideration of the circumstances behind the law, the interest of the state in promulgating it and the interests of those disadvantaged by the law. Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). In analyzing these considerations a two-level approach has been followed. Developments in the law-Equal Protection, 82 Harv.L.Rev. 1065, 1076-87 (1969). Where either a 'suspect' classification (i.e., race, alienage, Nationality, and probably, sex) or a 'fundamental interest' (i.e., procreation, interstate travel, voting, first amendment rights) is involved, state statute are subjected to strict judicial scrutiny with the result that there must be a compelling state interest to sustain the legislation. Absent either a 'suspect' classification or a 'fundamental interest', the statute need only bear a rational relationship to the espoused or court-supplied purpose. Peters v. University of N.H., 112 N.H. 120, 121, 289 A.2d 396, 397 (1972); Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); see Tussman and TenBroek, The Equal Protection of the Laws, 37 Calif.L.Rev. 341 (1949).

Recently, this two-tier approach to equal protection problems has been criticized as being an insensitive analytical device for dealing with the range of issues lying between the extremes. The Supreme Court; 1973, Term, 88 Harv.L.Rev. 41, 115 (1974): The Supreme Court: 1972 Term, 87 Harv.L.Rev. 1, 114 (1973); Gunther, In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 17-20 (1972). But despite criticism the two-evel analysis remains viable. Memorial Hospital v. Maricopa County, 415 U.S. 250, 254, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974); Note, The New, New Equal Protection, 72 Mich.L.Rev. 508, 533 (1974); Frontiero v. Richardson, 411 U.S. 677, 688, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973).

Neither a 'suspect' classification nor a 'fundamental interest' is involved in this case. The procedural qualification of a citizen's access to the courts in civil matters does not require that the State furnish a compelling interest to justify its actions. Hodgdon v. Gallagher, 113 N.H. 185, 186, 304 A.2d 375, 376 (1973); Ortwein v. Schwab, 410 U.S. 565, 660, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973); United States v. Kras, 409 U.S. 434, 444-447, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973); see Comment 24 Am.U.L.Rev. 129, 157 (1974). Therefore, the applicable standard for testing the constitutionality of RSA 556:10 is whether the statute has a rational basis. To ascertain if RSA 556:10 passes the rational basis test, two inquiries must be made: determination of the purpose of RSA 556:10, and finding of a reasonable relationship between the purpose and classifications made by the statute. A reasonable classification is one that includes all those similarly situated with regard to the purpose of the law. Tussman and tenBroek, supra at 346.

The primary purpose of RSA 556:10 is to allow for the survival of pending tort actions. Niemi v. Railroad, 87 N.H. 1, 9, 173 A. 361, 366 (1934); Ghilain v. Couture, 84 N.H. 48, 54, 146 A. 395, 399 (1925). Ancillary to this purpose is the limitation requiring administrators to prosecute pending actions within two terms after the original plaintiff's death. Since the length of a court term depends on the number of the terms per year established in each county by the superior court pursuant to RSA 496:1 II, the time limitation for filing varies from county to county. In those counties with three superior court terms annually the litigant has approximately eight months in which to file, whereas in those counties...

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    • June 13, 1984 the face of factual differences, it does mandate that those who are similarly situated be similarly treated." Belkner v. Preston, 115 N.H. 15, 17, 332 A.2d 168, 170 (1975). When a person's conduct violates more than one criminal statute, the State has the broad discretion to prosecute un......
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