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Leith v. Horgan

Decided: November 2, 1953.

WALTER M. LEITH AND ANN LEITH, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
ANDREW B. HORGAN, DEFENDANT-RESPONDENT



On certified appeal from the Appellate Division of the Superior Court, whose opinion is reported in 24 N.J. Super. 516.

For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Heher, J.

Heher

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 she 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 ...


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