Koplik v. C. P. Trucking Corp.

Jacobs, J.

(joined by Weintratjb, C. J. and Waoheneeld, J.) (dissenting). The common law viewed the legal existence of the wife during marriage as having been suspended or at least “incorporated or consolidated into that of the husband.” 1 Blackstone, Commentaries 442. Under this medieval concept the wife was precluded from maintaining anj' action at law or equity against her husband for his wrongful conduct whether it was intentional or negligent, affected her person or property, or occurred before or during the marriage. See Prosser, Torts 670 (2d ed. 1955). The resulting injustices were patent and the disintegration of the concept (even apart from criminal and matrimonial proceedings) began centuries ago. By the 18th Century equity had developed its own doctrine of the married woman’s separate estate under which it entertained various actions by wives against husbands, and in the 19th Century comprehensive legislation which was designed to advance the general emancipation of married women was enacted in England and throughout the United States. See McCurdy, “Torts Between Persons in Domestic Relation,” 43 Harv. L. Rev. 1030 , 1035 (1930).

*14 Despite the foregoing and 20th Century social changes many states, while permitting property and contract actions, still refuse to permit personal injury actions by a wife against her husband although an ever increasing minority views the husband’s immunity from such actions as an historical survival which has no justifiable place in modern times. See Annotation, “Bight of one spouse to maintain action against other for personal injury” 43 A. L. R. 2d 632, 647 (1955). In the following cases the wife’s personal injury action was sustained: Taylor v. Patten, 2 Utah 2d 404, 275 P. 2d 696 (1954); Brown v. Gosser, 262 S. W. 2d 480 (Ky. Ct. App. 1953); Jernigan v. Jernigan, 236 N. C. 430 , 72 S. E. 2d 912 (1952); Damm v. Elyria Lodge No. 465, 158 Ohio St. 107 , 107 N. E. 2d 337 (1952); Lorang v. Hays, 69 Idaho 440 , 209 P. 2d 733 (1949); Scotvold v. Scotvold, 68 S. D. 53, 298 N. W. 266 (1941); Courtney v. Courtney, 184 Okla. 395 , 87 P. 2d 660 (1938); Rains v. Rains, 97 Colo. 19 , 46 P. 2d 740 (1935); Fitzmaurice v. Fitzmaurice, 62 N. D. 191 , 242 N. W. 526 (1932); Bennett v. Bennett, 224 Ala. 335 , 140 So. 378 (1932); Katzenberg v. Katzenberg, 183 Ark. 626 , 37 S. W. 2d 696 (1931); Wait v. Pierce, 191 Wis. 202 , 209 N. W. 475 , 210 N. W. 822 , 48 A. L. R. 276 (1926); Bushnell v. Bushnell, 103 Conn. 583 , 131 A. 432 , 44 A. L. R. 785 (1925); Prosser v. Prosser, 114 S. C. 45, 102 S. W. 787 (1920); Gilman v. Gilman, 78 N. H. 4, 95 A. 657 , L. R. A. 1916B, 907 (1915). Compare Brandt v. Keller, 413 Ill. 503 , 109 N. E. 2d 729 (1953), with Hindman v. Holmes, 4 Ill. App. 2d 279 , 124 N. E. 2d 344 (1955).

In general those who favor the majority view no longer seek to support it on the fanciful common law notion that since the spouses are “one person, one cannot sue the other”; instead they now urge that the husband’s immunity serves to preserve domestic tranquillity and tends to avoid fraudulent and collusive actions. In the rare instance where the wife will sue her husband despite his objection there is probably not much tranquillity to preserve and in other *15 instances (as here) the husband, protected by insurance, 1 may welcome her action. In any event, it is difficult to to see how a personal injury action would disrupt tranquillity more than a property or contract action which is admittedly maintainable. The fear of fraudulent actions, and collusive actions where the husband is insured, furnishes equally tenuous basis for the majority view. There is opportunity for fraud and collusion in many legal proceedings, but our system of courts and juries is very well designed to seek them out and its presence clearly furnishes no just or moral basis for precluding honest and meritorious actions.

All of the thoughtful academic discussions have attacked the majority view. See 1 Harper & James, Torts 643, 646 (1956); Prosser, supra 670, 674; Ford, “Interspousal Liability for Automobile Accidents,” 15 U. Pitt. L. Rev. 357 , 401 (1954); Farage, “Recovery for Torts Between Spouses,” 10 Ind. L. J. 290, 300 (1935); McCurdy, supra, 43 Harv. L. Rev. at 1052; Albertsworth, “Recognition of New Interests in the Law of Torts,” 10 Cal. L. Rev. 461 , 471 (1922). Albertsworth pointed out long ago that it is incongruous to permit a wife to sue wherever her contract and property rights are involved and yet disable her from suing where her greater right—“the right of physical integrity”'—is involved (Albertsworth, supra, 10 Cal. L. Rev., at p. 478); *16 more recently Harper and James noted that the metaphysical and practical reasons which prevented the wife’s suit at common law are no longer applicable and that “sound policy and ordinary fairness” strongly support her right of action (Harper & James, supra, at p. 646); and Prosser has effectively summed up the matter in the following fashion:

“The courts which follow this majority view have buttressed their conclusion by inventing new arguments, not found in the early cases, for denying the remedy. Apart from stare deeisis or judicial inertia, and the policy of strict construction of statutes changing the common law, it has been said that each spouse has remedy enough in the criminal and divorce laws—which obviously is untrue, since neither compensates for the damage done, or covers all the torts that maybe committed. Stress has been laid upon the danger of fictitious and fraudulent claims, on the very dubious assumption that a wife’s love for her husband is such that she is more likely to bring a false suit against him than a genuine one; and likewise the possibility of trivial actions for minor annoyances, which might well be taken care of by finding consent to all ordinary frictions of wedlock—or at least assumption of risk! The chief reason relied upon by all these courts, however, is that personal tort actions between husband and wife would disrupt and destroy the peace and harmony of the home, which is against the policy of the law. This is on the bald theory that after a husband has beaten his wife, there is a state of peace and harmony left to be disturbed; and that if she is sufficiently injured or angry to sue him for it, she will be soothed and deterred from reprisals by denying her the legal remedy—and this even though she has left him or divorced him for that very ground, and though the same courts refuse to find any disruption of domestic tranquillity if she sues him for a tort to her property, or brings a criminal prosecution against him. If this reasoning appeals to the reader, let him by all means adopt it.” Prosser, supra at 674.

The Hew Jersey reports contain many equity cases in which wives have maintained property and contract actions against their husbands. See, for example, Calame v. Calame, 25 N. J. Eq. 548 (E. & A. 1874); Black v. Black, 26 N. J. Eq. 295 (Ch. 1875), Id., 30 N. J. Eq. 215 (Ch. 1878), reversed 31 N. J. Eq. 798 (E. & A. 1879); Riker v. Riker, 83 N. J. Eq. 198 (Ch. 1914); Neubeck v. Neubeck, 94 N. J. Eq. 167 (E. & A. 1922); Fike v. Fike, 3 N. J. Misc. 485 (Ch. 1925), affirmed 99 N. J. Eq. 424 (E. & A. 1926). Cf. Turner v. Davenport, 63 N. J. Eq. 288 (E. & A. 1901); Collins v. *17 Babbitt, 67 N. J. Fq. 165 (Ch. 1904). In the Filce case the wife prevailed in an action to compel her husband to deliver personal property which he had agreed to transfer to her; in the course of its opinion the court flatly rejected the husband’s contention that it should not “entertain a suit of this kind where husband and wife are living together amicably.” In the Neubech ease the wife was permitted to maintain an action to compel her husband to account for rents received by him from property owned by them as tenants by the entirety. In the Turner case a wife was permitted to maintain an action against her husband and another, as partners, for services rendered to the partnership. Justice Eort, speaking for the Court of Errors and Appeals in the Turner case, pointed out that the common law rule which precluded the wife’s action was founded upon the theory that “husband and wife are one in law”; that with the passage of our married women’s legislation the reason for the rule ceased; and that “when the reason for a rule ceases, the rule is no longer in force.” 2 Cf. Hudson v. Gas *18 Consumers’ Association, 123 N. J. L. 252 (E. & A. 1939); Clement v. Atlantic Casualty Ins. Co., 13 N. J. 439 (1953).

Notwithstanding the foregoing, the New Jersey courts have adhered to the position that under common law principles a wife may not maintain a personal injury action against her husband. Thus in Hudson v. Gas Consumers’ Association, supra, the Court of Errors and Appeals pointed out that “a wife may not have a suit for damages against her husband for his tort”; that “this is the common law rule”; and that “no statute has been enacted in this state that disturbs it.” But recognition of the husband’s immunity from suit as a common law rule which no statute has disturbed does not at all mean that the courts may not change it; on the contrary a well recognized aspect of the common law itself has been its capacity to alter common law doctrines which have outlived whatever usefulness they may have had and now retard rather than serve the interests of justice. See State v. Culver, 23 N. J. 495, 505 (1957), cert. denied, 354 U. S. 925 , 77 S. Ct. 1387 , 1 L. Ed. 2d 1441 (1957), where Chief Justice Vanderbilt said:

“One of the great virtues of the common law is its dynamic nature that makes it adaptable to the requirements of society at the time of its application in court. There is not a rule of the common law in force today that has not evolved from some earlier rule of common law, gradually in some instances, more suddenly in others, leaving the common law of today when compared with the common law of centuries ago as different as day is from night. The nature of the common law requires that each time a rule of law is applied it be carefully scrutinized to make sure that the conditions and needs of the times have not so changed as to make further application of it the instrument of injustice. Dean Pound posed the problem admirably in his Interpretations of Legal History (1922) when he stated, ‘Law must be stable, and yet it cannot stand still.’ And what has been done in the past is but one of the factors determinative of the present course of our law—a truism which has not gone unrecognized among the great thinkers of the legal profession.”

It must be remembered that the New Jersey Legislature never prohibited a wife from suing her husband. The common law did so but then proceeded to recognize many *19 equitable exceptions. When the Legislature enacted its 1877 revision it declared additional exceptions but it never sought to perpetuate for all times the prohibitory common law rule then in effect. Thus section 14 of the 1877 act simply provided that nothing therein shall enable a husband or wife to contract with or sue each other except as theretofore; and its current counterpart (R. S. 37:2-5) simply provides that nothing in this chapter shall enable a husband or wife to contract with or sue each other except as heretofore or as authorized by this chapter. Apart from the statutory changes, which were all designed to increase rather than delimit the wife’s emancipation, this left the common law intact with its inherent capacity for later judicial alteration. See Koplik v. C. P. Trucking Corp., 47 N. J. Super. 196, 199 (App. Div. 1957); Editorial, “Our Law Progresses,” 80 N. J. L. J. 576 (1957). In Woodruff v. Clark & Apgar, 42 N. J. L. 198, 200 (Sup. Ct. 1880), relied upon by the majority, Chief Justice Beasley noted that, apart from the statutory enlargements, section 14 left the husband and wife, insofar as their capacity to bargain was concerned, “on the ancient footing of the common law.” In Drum v. Drum, 69 N. J. L. 557, 558 (Sup. Ct. 1903), Justice Dixon, citing section 14, stated that our statute “enlarging the legal rights of married women * * * expressly saves the common-law inability of husband and wife to sue each other.”1 And in Freitag v. Bersano, 123 N. J. Eq. 515, 516 (Ch. 1938) Vice-Chancellor Fielder, citing R. S. 37:2-5, pointed out that, except to the extent that our statute enlarges the right of spouses to sue each other “the common-law rule in this respect prevails in this state.”

The majority opinion has not sought to defend the continuance of the husband’s common law immunity either on its original basis or on any currently acceptable reason or principle; nor has it dealt with the vital social and moral precepts which have been gradually eroding all of the common law immunities from tort responsibility for wrongful conduct; instead it has taken the position that the husband’s immunity has become “part of our statutory law” and is *20 therefore irremovable except by statute. This imports into the statute prohibitory language which the Legislature has never expressed or implied. Cf. Farage, supra, 10 Ind. L. J., at p. 300; Albertsworth, supra, 10 Cal. L. Rev., at p. 413. Moreover, it does so in a case involving an ante-nuptial tort and suit, where any suggested policy consideration against the wife’s action has even less force than when a postnuptial tort and suit are involved, and where other statutory provisions supporting the wife’s action may be brought into play. See R. S. 37:2—12; R. S. 37:2-7. R. S. 37:2-12 provides, in part, that the personal property which a woman owns at the time of her marriage shall remain her separate property “as if she were a feme sole” and R. S. 37:2-7 provides, in part, that if a female plaintiff marries after she has instituted a legal action, the action shall not abate but shall proceed to final judgment in the name of the female “notwithstanding such marriage.” Here the plaintiff’s cause of action was her personal property (43 Am. Jur., Property, §§ 9, 36 (1943)) before her marriage, and her marriage to the defendant after she had filed her complaint should not have the legal effect of abating her action or preventing it from proceeding to final judgment. See Curtis v. Wilcox, [1948] 2 K. B. 474, 2 All Eng. Rep. 573 (C. A.); Carver v. Ferguson, 115 Cal. App. 2d 641 , 254 P. 2d 44 (Cal. D. Ct. App. 1953); Hamilton v. Fulkerson, 2 85 8. W. 2d 642 (Mo. Sup. Ct. 1955). Cf. Shirley v. Ayers, 201 N. C. 51 , 158 S. E. 840 (1931); Apitz v. Dames, 205 Or, 242 , 287 P. 2d 585, 594 (1955).

In the Ctortis case the plaintiff was a passenger in the defendant’s car which collided with another car. She instituted a personal injury action and during the course thereof married the defendant. The Court of Appeals held that the action could proceed as one for the protection of her personal property and was not barred by the language in the English Married Women’s Property Act that “no husband or wife shall be entitled to sue the other in tort” except as therein provided. Similarly, in the Qarver ease the court sustained the plaintiff’s action for personal injuries *21 suffered in an automobile accident though she married the defendant after she had instituted her action but before it came to trial; the District Court of Appeals pointed out that the character of the plaintiff’s personal property was fixed at the time of its acquisition and was not affected by her subsequent marriage. In the Hamilton case a wife’s action against her husband for an antenuptial tort committed in an automobile accident was sustained by the Supreme Court of Missouri in a full opinion which found no legal principle or policy consideration against maintenance of the action. It is to be noted that in the Ouriis, Garver and Hamilton cases the actions for antenuptial torts were held maintainable in jurisdictions which still decline to entertain actions for postnuptial torts. But see Furey v. Furey, 193 Va. 727, 71 S. E. 2d 191 (1952); Patenaude v. Patenaude, 195 Minn. 523 , 263 N. W. 546 (1935).

Until today no reported judicial opinion in New Jersey (except the trial court’s opinion in Wolfer v. Oehlers, 8 N. J. Super. 434 (Law Div. 1950), which was grounded entirely on the anachronistic “doctrine of identification”) ever applied the husband’s immunity to a case where the wife’s tort claim accrued and her legal action was commenced before her marriage to the defendant. That is actually the only situation which now requires adjudication and it seems regrettable that the majority has concluded not to limit the common law immunity of the husband at least here where broad statutory provisions as well as considerations of rightness and fairness strongly support the position of the wife. She was injured on June 17, 1955 when Patrizio’s car in which she was riding collided with a trúek owned by the C. P. Trucking Corporation. In due time she filed her complaint charging that the accident was the result of the negligence of Patrizio and Angelo Nuzzo the driver of the truck. Answers were filed by Patrizio, Nuzzo and the Trucking Corporation, and if the trial had been brought on quickly the legal issue in the present case presumably would not have arisen at all. The plaintiff married Patrizio on June 2, 1956 and under the majority’s holding she may now con *22 tinue her action only against the Trucking Corporation and its driver. If the jury should find that Patrizio was exclusively at fault the plaintiff, though injured through the fault of another and without any fault on her own part, will have no recourse whatever for her medical expenses and other damages, and Patrizio’s insurance carrier will have a complete windfall. I cannot bring myself to believe that these unjust consequences were ever contemplated by our Legislature or that they are compelled by any sound common law principle of continuing effect.

I would affirm the judgment of the Appellate Division.

For reversal—Justices Hbher, Burling, Erancis and Proctor—4.

For affirmance—Chief Justice Weintraub, and Justices Waci-ieneeld and Jacobs—3.

See Courtney v. Courtney, supra, 87 P. 2d, at p. 668 :

“A man pays for insurance to indemnify any person whom he injures by his careless driving, and if it is intended to except his wife from such indemnification, such intent can very easily be expressed in the contract.” See also Kimball, C. J. dissenting in McKinney v. McKinney, 59 Wyo. 204 , 135 P. 2d 940, 958 (1943) :

“* * * there is no danger of domestic tranquillity being disturbed by an action for negligence by a wife against her husband who carries indemnity insurance. Negligence actions by wives against husbands, without any noticed exception, have involved automobile accidents, and have arisen since it has become a common practice for owners of such vehicles to carry insurance that serves the double purpose of protecting them, and compensating those whom they or their agents may injure. It is natural and commendable that an owner who is the head of a family should want this protection to extend to the members of his family.”

See ATbertsivorth, supra, 10 Gal. L. Rev., at p. 479:

“When the reason, for a legal rule ceases, the rule itself should no longer be kept in force (eessante ratione, cessat lex). The notion that the wife could not bring a tort action against the husband was, as is well known, based partly upon the idea that the husband and wife were a legal unity, and also upon the further theory, an inference drawn by courts in a barbarous age, that the wife was a mere chattel, and hence without any right of property or person. The beneficent legislation, beginning with the middle of the nineteenth century, sought to create a fundamentally new status for the married woman, and if the courts had, as a rule, recognized this revolution in the law, and given effect to it in their decisions, our law on this matter would not have been in such discord. But the courts, under the conception that common law incapacities were natural ones, and that the legislature really could not have meant to do the impossible—to change these inherited incapacities—read into these liberal statutes decidedly illiberal results. To the praise of some courts, under the controlling influence of former illiberal precedents, it must be said that they deprecate the fact that they are thus bound. And as already pointed out, other courts are decidedly breaking with the past, and reaching results in consonance with the emancipatory legislation regarding married women.”