Leith v. Horgan

• Decision Date: 02 November 1953
• Docket Number: No. A--5,A--5
• Citation: 13 N.J. 467,38 A.L.R.2d 1440,100 A.2d 175
• Parties: , 38 A.L.R.2d 1440 LEITH et ux. v. HORGAN.
• Court: New Jersey Supreme Court

Page 467

13 N.J. 467

100 A.2d 175, 38 A.L.R.2d 1440

LEITH et ux. v. HORGAN.

No. A--5.

Supreme Court of New Jersey.

Argued Sept. 14, 1953.

Decided Nov. 2, 1953.

Frank B. Bozza, Newark, for appellants.

Charles S. Barrett, Jr., Newark, for respondents (Lum, Fairlie & Foster, Newark, attorneys).

The opinion of the court was delivered by

HEHER, J.

Plaintiffs invoke the jurisdiction of Chancery for the enforcement of what they conceive to be their 'right of visitation' to their invalid daughter Marion, the wife of defendant Horgan, and for the appointment of a guardian 'to safeguard the interest and welfare' of Marion and 'to facilitate' plaintiffs' asserted right of visitation.

Without mutual forbearance in the interest of the afflicted, as well as the peace of mind and soul that is dearer than all, the deep bitterness engendered by a family tragedy will intensify its grievousness and poignancy and dim the light of faith and hope in a crisis that calls for the finest spiritual qualities. It is indeed a time for the charity that suffereth long and is kind, and beareth and endureth all things.

Defendant and Marion were married September 21, 1935. They have five children, all boys ranging in age from 15 to 2--1/2 years. On May 27, 1950, at about 1:30 a.m., Marion was found in an unconscious state on the floor outside the bedroom she and her husband occupied, at the landing of the staircase leading to the first floor of their residence, No. 212 Ocean Road, in Spring Lake, New Jersey, plaintiffs' house rented to the Horgans. She was removed to the Fitkin Memorial Hospital a few miles away, and was there found to have suffered a cerebral hemorrhage and a right hemiplegia accompanied by complete motor aphasia and partial sensory aphasia. There is medical opinion that the cerebral lesion was traumatic in origin, the result of a fall. There were four brain operations in all, primarily for a subtemporal decompression and the removal of a cranial clot, but the patient has ever since been totally disabled; efforts at rehabilitation have not met with marked success. Yet she has full mental competence.

Marion remained at the Fitkin Hospital until Thanksgiving Day of 1950, when she was removed to St. Mary's Hospital in Orange, New Jersey, where she remained until February 12, 1951. She was then taken to the Crippled Children's Hospital in Newark, New Jersey, and following treatment there the was placed in a nursing home, but after a time, as the result of mounting tensions in defendant's relations with her parents, she was removed to another nursing home, not disclosed to plaintiffs, and ever since defendant has concealed her whereabouts. Plaintiffs' insistent demands for access to their daughter have been rebuffed.

Amicable family relations turned to loathing and hatred after the unfortunate mishap to Marion, due to the belief harboured by plaintiffs that their daughter's condition was the result of violence at the hands of defendant, a grievously mistaken notion so far as the evidence goes, and defendant's resentment of the reiterated criminations. These emotional reactions eventually obscured the realities and led to fanciful and wholly imaginative grievances and retaliatory acts and the ultimate flight of reason and judgment.

In this impasse, and in the avowed interest of Marion, who reciprocated their love and affection, and to alleviate her distraught physical and mental condition as well as their own anxiety, the plaintiff parents sued out a writ of Habeas corpus to release her from what was alleged to be 'imprisonment or confinement' at an 'unknown place, * * * against her will,' made possible by her physical disability.

The complaint in that proceeding stated that, although the Law Division of the Superior Court had power under R.S. 2:81--1 et seq. to allow the writ of Habeas corpus, plaintiffs invoked the 'inherent jurisdiction' of Chancery to liberate Marion, 'for whose relief the writ is intended,' from her 'illegal imprisonment, restraint and confinement.' It was also alleged that Marion was not receiving adequate rehabilitative treatment.

The writ issued, and there was a return denying that Marion was under 'restraint against her will,' and alleging the provision of adequate medical, surgical and nursing care, the unfitness of the parents for 'any custody' of Marion, and that defendant 'cannot produce' her in court, 'for to do so would endanger her life and health.'

Judge Proctor, accompanied by Dr. Harold M. Somberg, whom he 'appointed as a witness for the court,' journeyed to the nursing home where Marion was then undergoing treatment. The physician concluded, after interrogating Marion, and Judge Proctor concurred, that 'it would be most detrimental' to her 'physical condition' were she 'brought into this court or any other court,' and that 'she should not be subjected to any questioning by lawyers.' He testified that Marion was mentally competent, was aware of her surroundings, and 'knew what she was doing,' although she was not told of 'any court proceedings,' and that she said 'she loved her husband and her children and she wanted to see her husband,' but was 'emphatic in saying that she did not wish to see her mother and father at this time.' Judge Proctor, however, was not entirely certain that Marion used the qualifying phrase 'at this time.' He was persuaded by the evidence that she had had 'some neuroses' prior to the day of her injury, but he had no way of knowing whether 'it was of any serious consequence except it might have been a forerunner of these hemorrhages she suffered later, but she did have a fear that something was going to happen to her and she had a fear of choking.' There was evidence of filial love and affection. There is no suggestion of an estrangement between parents and daughter.

Judge Proctor found that defendant had 'always been a devoted and faithful husband and father,' and had 'done all within his power for the best interest of his wife'; and he acquitted him of the imputations of violence. There was no evidence whatever to sustain that charge. And, while convinced of the parents' love for their daughter, he deemed that an irrelevant consideration; the inquiry, he said, was whether Marion was 'illegally restrained,' and he concluded that she was not, in view of her declaration to Dr. Somberg that she did not wish to see her 'father and mother,' and therefore the writ must be dismissed.

And the judge then observed that 'emotional disturbances' no doubt accounted for the unseemly behaviour, but there was no doubt of the parents' great love for their child; and he expressed the hope that the parents from that time on would abstain from provocative conduct and defendant would 'have the goodness to permit the mother and the father, or both, to see their daughter.' He adverted to defendant's concession on the witness stand that, 'regardless of his own feelings,' he would permit his wife to 'see her mother or father,' if such was her wish, 'particularly as to the mother.' Assuming the existence of the power to do more to this end, the judge said he could not exercise it in view of Dr. Somberg's testimony that 'it would be emotionally upsetting' to Marion and 'damaging to her if she saw' her parents 'at this time,' her welfare being the paramount consideration, and for that reason also he was obliged to dismiss the writ.

In the present proceeding there was summary judgment for defendant on the ground that since the prior judgment on Habeas corpus was predicated on the finding that Marion did not wish to see her parents, and there was no showing of a 'change in the situation from that which was presented to Judge Proctor,' I.e. 'the mental attitude of the wife,' the doctrine of Res judicata served to bar this action as one to enforce the parents' 'right of visitation.'

The rationale of the judgment of the Appellate Division is that the husband is the 'nearest kin' to his wife, and as such 'has the responsibility for the care and protection of his wife,' the greater in this case because of 'the helplessness of' the wife; and that if the wife 'were in normal health, she herself would decide to receive or not to receive her parents,' but 'paralyzed and helpless as she is, her husband must make the decision,' and her parents 'are without legal right to visit' her 'and can obtain no relief in this cause.' This was not deemed to be an absolute rule, applicable under any and all circumstances. It was intimated that the parents would have such access were it made to appear that the daughter 'needed their ministrations,' but the case made by the complaint was not in this category and, at all events, there was no allegation that Marion 'is confined or constrained by her husband against her will.'

I.

The principle of Res judicata is not operative to bar this proceeding. The judgment dismissing the writ of Habeas corpus is not conclusive of the issue raised here. The object of the first proceeding, as assessed by Judge Proctor, was simply to determine whether Marion was 'illegally restrained'; here, her parents assert the right of visitation, in their own interest as well as hers, depending upon her wishes and personal welfare, wherein invalidism fetters freedom of action and expression. At common law, denial of the writ of Habeas corpus is generally not conclusive under the doctrine of Res judicata, although the action taken in the prior proceeding may well be considered in determining whether the relator's second application constitutes an abuse of the process. State v. Brearly, 5 N.J.L. 639 (Sup.Ct.1819); Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1941); Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989 (1924); Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 (1924); State ex rel. Shapiro v. Wall, 187 Minn. 246, 244 N.W. 811, 85 A.L.R. 114 (Sup.Ct.1932). Where the writ of Habeas corpus is used for its primary purpose...