William Bauer, the infant plaintiff herein, moves to vacate an order approving settlement, pursuant to R.R. 4:56A, on which judgments totalling $125,000 were entered in 1963 after a hearing.
On October 6, 1962 William Bauer, then 16 years of age, was walking on or near a public road when he was struck by an automobile operated by defendant. Because the matter was settled, the facts surrounding the accident do not appear of record. That some question with respect to these facts does exist is indicated by the respective statement of facts and counterstatement of facts submitted with the briefs on this motion. In the former, the allegation appears that defendant "veered off the road, striking Billy," while in the latter it is said, "There was some indication that William Bauer was struck * * * somewhere in the right hand traffic lane * * *." In the transcript made at the time of the approval of the settlement, the late Judge Mills commented: "The Court realizes that there are grave questions of negligence and grave questions of contributory negligence."
There is no question that the consequent injuries were extraordinarily severe, not the least of which was deep brain damage. Nor does it appear to be disputed that William Bauer went into immediate coma which persisted through and after the approval of the settlement on August 20, 1963.
On February 5, 1963 Theodore Bauer, father of William, instituted suit as guardian ad litem against defendant for personal injuries said to have resulted from the accident. William's parents also sued individually for their consequent damages. Defendant's insurance company settled all claims for $125,000, and on August 20, 1963 Judge Mills granted the application for approval of the settlement. In the interim there had been preparation for trial.
We are advised in the counterstatement of facts appearing in defendant's brief in opposition to the motion that:
"In the course of preparation for the case, the defense attorneys deposed the parents of the boy, had a neurological examination and employed other discovery devices. More particularly, on May 3, 1963
Theodore and Elsie Bauer, the parents of William, were deposed, the testimony was recorded and the transcript was reviewed by Judge Elden Mills. Unfortunately, no transcript of the deposition is in existence today. Due to passage of more than five years, the Court's copy has been destroyed; defense counsel's copy has been destroyed along with the entire defense file; and the stenographer's notes have been destroyed."
Judge Mills, since deceased, made reference at the hearing to having had "the benefit * * * of reviewing the depositions of some of the parties to this matter, which was [ sic ] held on May 3, 1963."
On August 16, 1963 there was a pretrial conference before Judge Mills. The transcript of the hearing reveals that Judge Mills had "the benefit of extensive discussions with counsel concerning the possibility of an amicable settlement" both at the time of this pretrial and on the morning of the hearing.
Mr. and Mrs. Bauer and Dr. Ernest S. Matthews, the "attending physician" of William Bauer, were the only ones to testify at the hearing.
Mr. Bauer testified to the composition of his family, and to William's age. He stated that as a result of injuries which his son sustained in an accident on October 6, 1962, young William had been taken to a hospital unconscious, and that he had remained in the hospital in an unconscious state ever since. At this point in the testimony, the following appears:
"Q And you are aware of the fact that your son has been critically injured, are you not? A Yes, that's right."
Mr. Bauer said that accrued expenses approximated $30,000 and were continuing at the rate of about $100 a day. He acknowledged a complete awareness of the actions which had been instituted and their purposes, and of his position as guardian ad litem for William. He said that he had been made "fully familiar * * * with all of the circumstances surrounding this particular case." Then:
"Q You are now in court for the purpose of accepting a settlement in this case. A Yes.
Q You are aware of that. A Yes.
Q And that settlement which has been offered and accepted is $125,000. A Right.
Q You are aware of that. A Yes.
Q Have you carefully discussed this matter with your wife and other members of your family? A Yes.
Q And are you satisfied that that sum is fair, just and reasonable under all of the circumstances? A Yes.
Q Has your attorney, meaning myself, explained to you all questions concerning this matter? A Yes.
Q Is this acceptance of the offer of settlement of your own volition, without any outside influences? A Yes.
Q Are you aware of the fact that upon the acceptance of this settlement of $125,000 that regardless of the outcome of your boy's injuries or in the event that he may die that no further sums of money will be paid to you concerning this case? A Yes.
Q You fully understand that. This is a full and final settlement. A Right.
Q Of all claims which arose out of this entire transaction. A Yes."
At this point a discussion was had off the record, after which two further questions were asked on direct examination.
"Q Now, as a result of this settlement, Mr. Bauer, it is anticipated that additional expenses will be incurred during the lifetime of your infant son and under the circumstances it was agreed that a settlement should be effected in two parts, one of which was to be for the benefit of your son for the injuries sustained to him and the other for the benefit of you and your wife as a result of damages and moneys expended in his behalf, and in that regard $65,000 has been set aside for the entry of a judgment in behalf of your son William and $60,000 in behalf of you and your wife for such moneys expended. Are you satisfied with that distribution? A Yes.
Q For yourself, for your wife and for your infant son? A Yes."
There was no cross-examination. The court inquired:
"THE COURT: Do you want me to approve it, Mr. Bauer?
Mrs. Bauer then testified as to her awareness of the accident, her son's continuing unconscious condition, and the fact that his injuries were of a serious and critical nature. She confirmed her husband's estimate of the expenses. At this point the following questions and answers occurred:
"Q And you heard the questions concerning the settlement of this case for $125,000 to be distributed in the manner which was stated earlier? A Yes, I did.
Q And you heard. Are you satisfied with such a settlement? A I am. * * *.
Q And you are fully satisfied with this settlement, that it is just and ...