Civil action. On motion for new trial.
Kole, J.c.c. (temporarily assigned).
[93 NJSuper Page 357] On July 21, 1962 plaintiff John Brennan, operating his automobile in which his three infant children were passengers, was involved in an accident with defendant Henry Biber, who was operating an automobile owned by defendant Henry Stockhammer. As a result thereof an action was brought against defendants by (1) the three children, Patrick, Brian and Sean Brennan, suing by Monica Brennan, their mother, as guardian ad litem, for injuries allegedly sustained by them; (2) John Brennan for his injuries and automobile damage; and (3) Monica Brennan, individually, for medical, drug and hospital expenses (herein "medical expenses") relating to the children's injuries and for damages for loss of their services, society and companionship. Among the defenses asserted was John Brennan's contributory negligence.
The action against Biber was submitted to the jury. It returned a no cause for action verdict against (1) the children Patrick and Brian, (2) John Brennan and (3) Monica Brennan individually. It returned a verdict of $1,100 damages in favor of the infant Sean Brennan for his injuries.*fn1
Plaintiffs moved for a new trial as to all plaintiffs (except the infant Sean Brennan) on liability and damages, and as to the infant Sean as to damages only or, in the alternative, for an additur to the verdict for Sean.
The motion for new trial as to all plaintiffs is hereby denied for the following reasons:
1. Plaintiff John Brennan's claim for his injuries and car damage.
John Brennan was the operator of the car involved in the accident with defendant. The court instructed the jury that he could not recover if he were found guilty of contributory negligence. Reasonable men could find, on the conflicting evidence, that he was contributorily negligent. Hence, there is no basis for the court's setting aside the verdict of no cause for action against him. R.R. 4:61-1(a).
2. The claims of infant plaintiffs Patrick and Brian Brennan for injuries.
The court made it clear in its charge to the jury that their father John's contributory negligence could not be imputed to or bar their recovery. It was clear from the evidence that any injuries either of them suffered were temporary and not of a permanent nature. Plaintiffs, in fact, did not claim otherwise at the trial. Reasonable men could find, on the evidence, that their injuries, if any, were so slight as not to be compensable, in which event a verdict denying them damages would be proper. Kovacs v. Everett, 37 N.J. Super. 133, 137 (App. Div. 1955), certification denied Kovach v. Kovacs, 20 N.J. 466 (1956); Watkins v. Myers, 12 N.J. 71 (1953); Ardis v. Reed, 86 N.J. Super. 323, 330 (App. Div. 1965),
affirmed 46 N.J. 1 (1965). Hence, there is no basis for the court's setting aside the verdict of no cause for action against them. R.R. 4:61-1(a). Indeed, were I the fact-finder, my finding in this regard might very well have been the same as that of the jury.
3. Infant plaintiff Sean Brennan's claim for injuries.
The court made it clear in its charge to the jury that the father's contributory negligence could not be imputed to or bar Sean's recovery. The court also made it clear in its charge that if the jury found Sean's injuries were permanent, it should take that fact into account in awarding him damages. The jury returned a verdict in Sean's favor for $1,100. The nature and permanency of Sean's injuries were sharply contested by the medical experts for both sides. The question was whether, as a proximate result of the accident, Sean became the victim of petit mal with some grand mal seizures and, if so, whether this condition would be permanent. Plaintiffs' physician, a neurosurgeon, testified that petit mal with grand mal seizures did result from the trauma Sean received in the accident and that the boy was not yet cured. Mr. and Mrs. Brennan's testimony as to Sean's condition after the accident could be found to support their physician's conclusions. Defendant's three physicians, including two neurologists, testified to the contrary. The two neurologists stated that neither petit mal nor grand mal could have resulted from any injuries received in the accident, and one of them attributed Sean's symptoms to a viral infection. The testimony of the father John that he had been absent from work for about eight weeks prior to the accident because of a virus may have had some influence on the jury's apparent belief in the testimony of defendant's physicians. Sean's school teacher testified that she had him in kindergarten after the accident, during the 1965-1966 school year; he behaved normally in class, his coordination was good, and she was never aware, either through observation or knowledge imparted by Sean's parents, that he had any health problem. The matter resolved
itself into one of determining the credibility of the witnesses for both sides. Based on the evidence, reasonable men could have found that Sean did not suffer petit mal or grand mal or any permanent injury as a proximate result of the accident, and that $1,100 was adequate to compensate him for the injuries he did in fact suffer. As a fact-finder I may have found differently, but I cannot state that the jury's verdict was not reasonably grounded in the evidence. Hence, it may not be set aside. R.R. 4:61-1(a); Nusser v. United Parcel Service, 3 N.J. Super. 64 (App. Div. 1949); Kovacs v. Everett, 37 N.J. Super. 133, 136 (App. Div. 1955), certification denied Kovach v. Kovacs, 20 N.J. 466 (1956); Andryishyn v. Ballinger, 61 N.J. Super. 386, 393-394 (App. Div. 1960); State by State Highway Com'r v. Speare, 86 N.J. Super. 565, 574 (App. Div. 1965), certification denied 45 N.J. 589 (1965).
4. Plaintiff Monica Brennan's claim for medical expenses for Patrick, Brian and Sean.
Since, as I have indicated in (2), above, the jury reasonably could have found the injuries of Patrick and Brian to be noncompensable, it also could have completely disbelieved the testimony as to the two boys' medical expenses. Accordingly, it could reasonably have refused a verdict of damages to their mother Monica with respect to the medical expenses of Patrick and Brian on this ground alone. But even if the jury had found that medical expenses were incurred as to all three children -- Patrick, Brian and Sean -- their mother Monica's claim therefor is barred by her husband John's contributory negligence. It is obvious, from the verdict in favor of Sean for his injuries and against his father John for his own injuries and car damage, that the jury found John guilty of contributory negligence. As I charged the jury, if they found John was contributorily negligent, there could be no recovery by Monica for such expenses, since John in fact paid them. The parent who actually pays or is under the legal obligation to pay medical expenses for the injured child may not recover therefor against the tortfeasor if he himself is guilty of contributory negligence, Maccia v. Tynes, 39 N.J. Super. 1
(App. Div. 1956), although he may recover if his spouse and not he is guilty of such negligence. Savoia v. F.W. Woolworth Co., 88 N.J. Super. 153 (App. Div. 1965).
Here plaintiffs' own testimony was that John Brennan actually had paid the medical expenses. Indeed, he, as a father, was under a legal duty to pay such necessary expenses for his children, at least where, as here, he, his wife and children are living together as a family unit.*fn2 Turney v. Nooney, 21 N.J. Super. 522, 525 (App. Div. 1952). See Greenspan v. Slate, 12 N.J. 426 (1953); Friedrichsen v. Niemotka, 71 N.J. Super. 398, 402 (Law Div. 1962); Mullen v. Board of Chosen Freeholders of Essex County, 107 N.J.L. 301, 304 (E. & A. 1931); ...