The opinion
*384 GERALD McLAUGHLIN, Circuit Judge
(dissenting).
This appeal arises out of a collision between two automobiles on January 21, 1966 at the intersection of Munn Avenue and Kings Highway, East, Cherry Hill Township, Camden County, New Jersey. Plaintiff-appellee was the owner of one of the automobiles in which she was riding at the time. Her then husband, defendant-appellant Kapelski, was operating the car. Plaintiff, now Mrs. Purcell, in her complaint alleges that at the time and place of the accident she was a passenger in her automobile which her husband was driving. She claims that the collision was caused by reason of the negligence of her husband and the driver of the other machine. She asserts that she suffered serious personal injury from the said collision. In his answer defendant Kapelski alleges that plaintiff was guilty of negligence and contributory negligence. He denies each and every affirmative allegation of the complaint which would include the allegation that plaintiff was a passenger in her automobile at the time of the accident. In a separate defense the answer states that plaintiff’s alleged injuries and/or damages were caused by the sole negligence of the owner and driver of the other automobile involved.
Appellant Kapelski filed a motion in the district court to dismiss the complaint against him on the ground that Pennsylvania law governed as to whether plaintiff had the right to sue the person who was her husband at the time of said accident on the theory that it was his negligence which caused her injury. The motion was denied by the district court. That decision is the sole basis of the appeal here which is on behalf of defendant-appellant Kapelski. The latter and plaintiff-appellee, the now Mrs. Purcell, when the accident occurred were husband and wife and domiciled in the Commonwealth of Pennsylvania. They were later divorced. The wife remarried and continued to reside in Pennsylvania ; defendant-appellant became a California resident.
It is not disputed that at the time of the accident, the Kapelski automobile was a Pennsylvania licensed car with its Pennsylvania owner and her husband, a citizen of Pennsylvania, therein. Under the law of that state then and now such a hard nosed claim as is presented on this appeal would not be allowed, Meisel v. Little, 407 Pa. 546 , 180 A.2d 772 . Chromy v. Chromy, 10 Pa.Dist. & Co.R.2d 791, 20 Fay.L.J. 52 (1958); Ellis v. Brenninger, 71 Pa.Dist. & Co.R. 583, 66 Montg.Co. Law Rep. 183 (1950); Smith v. Smith, 14 Pa.Dist. & Co.R. 466 (1930); Swaney v. Cabot, 23 Fay.L.J. 175 (1960).
The happenstance that the Pennsylvania couple in their Pennsylvania machine became involved in a two-car collision at a New Jersey roads intersection near the Pennsylvania line does not automatically call for New Jersey law to not only govern that state’s various rules of the road but also whether this plaintiff under the facts has the right to sue her husband for his claimed negligence in driving her automobile in which she was riding. Mellk v. Sarahson, 49 N.J. 226 , 229 A.2d 625 (1967), a late and the leading New Jersey Supreme Court decision on this type of litigation strongly ruled that in such factual problem the law of the place is not “* * * [to] be applied mechanically, but that courts should give attention to other factors which are relevant to the choice of law process.” (P. 229, 229 A.2d p. 626). I think it obvious that Pennsylvania in this instance has the overwhelming relationship with the Pennsylvania parties to the accident, particularly with regard to their then marital status. I must conclude that the part of the district court order denying appellant’s motion to dismiss the complaint as to him should be reversed and appellant’s motion to dismiss the complaint as to him allowed.