Heath v. Seymour, 6027

• Decision Date: 30 October 1970
• Docket Number: No. 6027,6027
• Citation: 270 A.2d 602,110 N.H. 425
• Parties: Connie HEATH, by her mother and next friend, Jean E. Heath v. James J. SEYMOUR et al. Jean E. HEATH v. James J. SEYMOUR et al. Connie HEATH, by her mother and next friend, Jean E. Heath v. Paul REHBERG, Adm'r. Jean E. HEATH v. Paul REHBERG, Adm'r. Jean E. HEATH v. Reginald HEATH.
• Court: New Hampshire Supreme Court

Page 602

270 A.2d 602

110 N.H. 425

Connie HEATH, by her mother and next friend, Jean E. Heath v. James J. SEYMOUR et al.

Jean E. HEATH v. James J. SEYMOUR et al.

Connie HEATH, by her mother and next friend, Jean E. Heath v. Paul REHBERG, Adm'r.

Jean E. HEATH v. Paul REHBERG, Adm'r.

Jean E. HEATH v. Reginald HEATH.

No. 6027.

Supreme Court of New Hampshire.

Oct. 30, 1970.

Frederic T. Greenhalge and L. Wilder Quint, Concord, orally, for Reginald Heath.

Upton, Sanders & Upton, Concord (Richard F. Upton, Concord, orally), for Jean E. Heath Lemieux.

LAMPRON, Justice.

Motion filed June 25, 1968 by plaintiff Reginald Health, individually and as administrator of the estate of Connie Heath deceased minor daughter of Reginald Heath and Jean Heath, now Lemieux, against Jean Heath Lemieux to bring forward for modification a decree of the Superior Court entered June 13, 1961, approving the settlement of the above-captioned actions brought by defendant Jean, individually and as mother and next friend of Connie. These actions resulted from an automobile accident in Hopkinton on September 23, 1959 in which Connie, age three, sustained severe injuries which incapacitated her to the time of her decease on November 4, 1967.

A hearing before Flynn, J. resulted in certain findings and rulings and a decree which granted plaintiff's motion to bring forward; vacated a part of the prior decree of the Superior Court; and directed the defendant to turn over to plaintiff, as administrator, the sum of $46,742.02, the balance of a 'trust fund,' including any interest thereon.

Defendant's exceptions to the denial of her motions to dismiss, to certain findings and rulings and to the denial of her requests for others, and to the Court's decree were reserved and transferred.

Reginald and Jean were married on January 16, 1953. On April 13, 1959 Jean brought a divorce libel and was granted temporary custody of their two minor children and of an adopted child. Certain actions to recover damages resulting from the accident to Connie were instituted by the mother, as mother and next friend and individually, on September, 25, 1959 and others at a later date. Her counsel conferred about these actions with counsel for the husband in the pending divorce proceedings. Counsel reported that his client Reginald would not participate in the actions and wanted no part of them. On December 23, 1959, a divorce was decreed to the wife effective January 5, 1960. The Court's decree incorporated a stipulation of the parties granting the custody of the children to the mother with reasonable visitation rights to the father who was to pay $15 weekly for the support of the children, and disposing of the property of the parties.

Connie was hospitalized from the time of her injury, on September 23, 1959, to the day of her decease, on November 4, 1967. She received a brain stem injury and remained decerebrate. On January 18, 1960, a neurosurgeon reported that 'the prognosis of this child is extremely poor.' On May 31, 1961 he reported further as follows: 'This patient at the present time expresses a chronic brain syndrome. I originally was of the impression that this might extend for life expectancy of 15 to 20. I am most inclined to believe that she will go longer providing her care continues to be as adequate as it has been in the past. This may extend on to the age of 30 or 40.'

The tort actions were disposed of by a compromise settlement of $75,000 approved by the Superior Court on June 13, 1961 in a decree on a petition seeking such approval. RSA 462:2; 491 App.R. 84. This action followed two conferences on successive days with the Presiding Justice by counsel for Connie and her mother on the first day, then with the mother Jean and a person suggested as trustee also present on the second day.

The decree ordered that out of the $75,000 settlement there be paid (1) counsel fees and disbursements in the amount of $15,471.96 and medical expenses of $4,300.22 for a total of $19,772.18; '(2) Of the balance of $55,225.82 then remaining, $7,724.82 thereof be paid to Jean E. Heath, and $1.00 thereof be paid to Jean E. Heath, as mother and next friend of Connie Heath; and (3) The final balance of $47,500.00 be paid to Arthur F. Wright * * * in trust * * * to apply and expend for the benefit of Connie Heath, during her lifetime, so much or all of the net income as the trustee, in his discretion, shall deem advisable for her care, support and comfort. In addition, the trustee may apply and expend for the care, support, and comfort of Connie Heath such part or parts of the principal of the trust fund as the said Court may first approve. * * *

'Upon the decease of Connie Heath, if she is survived by her mother, Jean E. Heath, the principal and all unpaid accrued net income of said trust estate shall be paid over and conveyed to the said Jean E. Heath, free of trust. Upon the decease of Connie Heath, if she is not survived by her mother, said principal and net income shall be paid over and conveyed to such person or persons as Jean E. Heath shall appoint by her last will and testament, and in default of the exercise of such power of appointment or to the extent the same is not validly exercised, then to the issue of Jean E. Heath living at the decease of Connie Heath, such issue to take per stirpes.'

After the hearing on Reginald's motion, the Trial Court ruled that the Superior Court lacked jurisdiction to include the latter paragraph in its decree of June 13, 1961. It further ruled that '(T)he ownership of the proceeds of the accident settlement, which were placed in trust, was vested in Connie subject to controls established for her protection during her minority by this Court. Upon Connie's death, the trust fund passed according to the laws of descent and distribution (RSA 561:1, 6).'

Counsel for plaintiff Reginald correctly maintain that the Superior Court had no jurisdiction over the estate of the deceased Connie and could not regulate its devolution in its decree approving the settlement of the tort actions. N.H.Const., Pt. 2, Art.80th; Lisbon Savings Bank, etc., Co. v. Moulton's Estate, 91 N.H. 477, 480, 22 A.2d 331, 334; 1 Treat, Probate Law s. 12. If that was the intended purpose of that part of the decree which was set aside in the present proceedings, the ruling of the Trial Court in this case was proper under the well established principle that a judgment or order of a court having no jurisdiction of the subject matter is void. Kittredge v. Emerson, 15 N.H. 227, 261; Tebbetts v. Tilton, 31 N.H. 273, 289; Restatement Judgments ss. 7, 10. The operation of this rule is not affected by any judicial discretion possessed by the court. 46 Am.Jur.2d Judgments s. 24.

However, it is to be presumed that the Superior Court in its decree approving the settlement intended to act within the scope of its authority and not to exceed it. Kuether v. Kuether, 174 Wis. 538, 542, 183 N.W. 695, 696; 46 Am.Jur.2d Judgments s. 29. In support of the decree, defendant Jean maintains that the Court could, and properly did, allocate the sum of $47,500 in question to her the responsible parent as consequential damages to be utilized to pay for the future hospital and medical care of Connie. In support of this contention she points to the granting by the Court in the present proceeding of her request No. 31 which reads as follows: 'The consequential damages were, at the time of settlement, of such probable magnitude as would have justified awarding directly to Mrs. Heath the entire net amount of the settlement as such consequential damages.'

This finding and ruling is in accord with what has been described as the majority view in this matter. 39 Am.Jur. Parent and Child s. 80; 1 Harper and James, Law of Torts s. 8.8 at 631 (1956). When a minor child is injured by the negligent act of a third party two causes of action arise. One by the child itself for personal injuries upon it; a second by the parent or parents for consequential damages such as loss of services and expenses caused by the injury to the child. Bennett v. Hymers, 101 N.H. 483, 486-487, 147 A.2d 108, 111; Savard v. Cody Chevrolet, Inc., 126 Vt. 405, 234 A.2d 656. The majority view, so-called, is that the wrongdoer is liable to the parent who is under a legal duty to furnish medical treatment for any expenses reasonably incurred or likely to be incurred for such treatment during the child's minority. Restatement, Torts s. 703(b). It has also been held that the parent can recover for medical expenses to be incurred for the infant even after it reaches majority. Peer v. City of Newark, 71 N.J.Super. 12, 33-34, 176 A.2d 249, 261. The minority view holds that the proper party to recover for future medical expenses is the child itself. Clarke v. Eighth Ave. R.R. Co., 238 N.Y. 246, 250, 144 N.E. 516, 517; 1 Harper and James, Law of Torts s. 8.8 at 631 (1956); 4 Shearman and Redfield, Negligence (rev. ed. 1941) s. 859.

There was no record made of the conferences held with the Presiding Justice who approved the settlement of the tort actions. However, it is not disputed that Connie became a decerebrate as a result of the accident. The Trial Court in the present proceedings found that '(I)t seemed probable that she would remain a hospital patient the rest of her life, permanently and totally disabled.' There was medical evidence that she might live to the age of 30 or 40. There was testimony that the charges of the hospital where she was confined had increased from $32 per week to $63 at her decease and that the trend 'is * * * steadily upward.'

In order to discover the intent of the Presiding Justice who approved the settlement it is permissible to refer to the facts and circumstances which were probably considered by him at the time. Kuether v. Kuether, 174 Wis. 538, 542, 183 N.W. 695, 696. Furthermore, as stated previously, these should be considered with the presumption that the Court intended to act within...