Bell v. Primeau

• Decision Date: 27 August 1962
• Citation: 104 N.H. 227,183 A.2d 729,7 A.L.R.3d 512
• Parties: , 7 A.L.R.3d 512 Floyd BELL et al. v. Arlene B. PRIMEAU, Adm'x.
• Court: New Hampshire Supreme Court

Page 729

183 A.2d 729

104 N.H. 227, 7 A.L.R.3d 512

Floyd BELL et al. v. Arlene B. PRIMEAU, Adm'x.

Supreme Court of New Hampshire.

Argued June 5, 1962.

Decided July 16, 1962.

Rehearing Denied Aug. 27, 1962.

Craig & Graig and Arthur J. Costakis, Manchester, for plaintiffs.

Sheehan, Phinney, Bass, Green & Bergevin and Richard A. Morse, Manchester, for defendant.

DUNCAN, Justice.

At the time of the accident all of the plaintiffs except Bell were members of the United States Air Force stationed at Grenier Field in Manchester. Bell was a former enlisted service man who had reenlisted on October 25, 1956, following the accident but before his disability had terminated. Bell and Winquist were hospitalized; Halajcsik and Toro were not, but were treated at the base hospital dispensary.

Early in the trial, the Court ruled that Winquist's medical and hospital bills which were 'paid by the Air Corps' might be received in evidence; but excluded evidence as to all plaintiffs of the varying periods for which they were unable to perform their regular duties, and of their base pay, quarters allowances, or flight pay, which in fact they had received in spite of their disabilities.

The plaintiffs excepted to the latter rulings, and sought instructions to the jury that it should not consider, 'by way of diminishing the damages, the fact that the plaintiffs were paid during this period.'

'In actions of tort for personal injuries damages are recoverable for loss of capacity to earn * * * measured by the amount of wages which [the injured person] would have earned during the period of his disability had he not been injured.' Dowling v. Shattuck, 91 N.H. 234, 242, 17 A.2d 529, 536. The issue presented by the cases before us is whether a plaintiff may recover for loss of earning capacity when in fact he has sustained no loss of earnings during disability, because his compensation has nevertheless been paid.

The rule of law relating to such matters, known as the 'collateral source rule,' which provides that the damages may not be mitigated on account of payments received by the plaintiff from sources other than the defendant has been adopted in one or more of its applications by many jurisdictions, including this one. While the rule has been criticized by commentators and text writers as anomalous, and illogical, it continues to find support in litigated cases. 2 Harper & James, The Law of Torts, ss. 25.19, 25.22; McCormick on Damages, pp. 309, 310; Schwartz, The Collateral Source Rule, 41 B.U.L.Rev. 348; Note, 63 Harv.L.Rev. 330; Annot. 18 A.L.R. 668, 95 A.L.R. 575. See also, Annots. 52 A.L.R.2d 1451 (accumulated leave), 68 A.L.R.2d 876 (governmental medical services), 70 A.L.R.2d 480 (subrogation of employer), 75 A.L.R.2d 885 (pension benefits).

In this jurisdiction, it has been held that a tort defendant can derive no benefit from the fact that the plaintiff was insured (Rolfe v. Boston & M. Railroad, 69 N.H. 476, 45 A. 251), or that his bills have been paid by a fireman's relief association (Clough v. Schwartz, 94 N.H. 138, 48 A.2d 921) or that he has received workmen's compensation (Abbott v. Hayes, 92 N.H. 126, 26...