# Danek v. Hommer > Supreme Court of New Jersey · March 10, 1952 · 9 N.J. 56 URL: https://www.frixlaw.com/law-library/cases/9757467 ## Case - **Full name:** John Danek, Plaintiff-Appellant, v. Julius J. Hommer and Katheryn Hommer, Partners Trading as Hommer Tool & Mfg. Co., Defendants and Third-Party Plaintiffs-Respondents, and New Jersey Manufacturing Casualty Insurance Company, a Corporation of the State of New Jersey, Third-Party Defendant-Respondent - **Court:** Supreme Court of New Jersey - **Decided:** March 10, 1952 - **Citations:** 9 N.J. 56; 87 A.2d 5; 1952 N.J. LEXIS 284 - **Precedential status:** Published - **Opinion:** Dissent by Vanderbilt - **Judges:** Oliphant, Vanderbilt - **Cited by:** 38 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9757467 ## Opinion text Vanderbilt, C. J. (dissenting). At common law a husband has a cause of action per quod for the loss of consortium attributable to injuries tortiously inflicted on his wifi1 by third persons, Nuzzi v. United States Casualty Co., *62 121 N. J. L. 249, 254 (E. & A. 1938), wherein it was stated that “a husband, from the earliest times at common law, was entitled to recover for any wrongful act per quod consortium amisit. 3 Bl. Com. 140. This loss is a personal injury.” The injury to the husband is personal to him and independent of any cause of action his wife might have. But while the injury to the husband is personal to him, it is not an injury to his person and therefore the six-year statute of limitations prescribed by R. S. 2:24-1 (now N. J. S. 2A: 14-1) is applicable rather than the two-year statute, R. S. 2:24-2 (now N. J. S. 2A :14-2) which applies only to “injuries to the person.” Blackman v. Iles, 4 N. J. 82, 89 (1950), a case quite similar to the present one, held that the “Heart Balm Act” did not destroy a parent’s right to recover for the loss of services of a minor child resulting from her seduction, even though the child itself was precluded from recovering. In that case the court said: ‘‘A statute may take away a common law right but there is always a presumption that the Legislature had no such intention. Sutherland, Statutory Construction (3rd ed. 1943), vol. 3, § 6201. If a change in the common law is to be effectuated, the legislative intent to do so must be clearly and plainly expressed. Carlo v. Okonite-Callender Cable Co., 3 N. J. 253 (Sup. Ct. 1949).” The workmen’s compensation law in this State may be searched in vain for any expressed intention to abolish the time-honored right of a husband to recover per quod for the loss of consortium, and such intention is not to be supplied by presumption. The workmen’s compensation law specifically provides that when by agreement, expressed or implied, an employer and employee accept its provisions, “such agreement shall be a-surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof,” R. S. 34:15-8. A husband is not a party to his wife’s employment contract, but on the contrary he is a stranger, to it. He has no control over or right to the *63 earnings his wife receives from her outside employment and his duty to support her is not diminished by reason of her separate earnings, Fitzsimmons v. Federal Shipbuilding & Dry Dock Co., 4 N. J. 110, 114 (1950). There is no provision in the statute for compensating a husband for his loss of consortium, and it can hardly be said, in the absence of plain language to that effect, that it was intended to deprive him of his independent cause of action without even purporting to compensate him for his loss. The majority seek support in the fact that a parent’s right to recover for injuries to his minor employed child is barred by the workmen’s compensation law, but the relation of parent and child is quite dissimilar to that of husband and wife, the parent having full and complete control over the earnings of an unemaneipated minor child, and R. S. 34:15-10 makes special provisions for compensating minors. The majority likewise rely on the fact that the workmen’s compensation law governs in actions against an employer for wrongful death, but this is only because R. S. 34:15-4 expressly states that the compensation law “shall apply to any claim for the death of an employee” arising under R. S. 2:47-1 to 2:47-6 (now N. J. S. 2A :31-1 to 2A :31-6). Undoubtedly the Legislature has the power to abolish by statute a husband’s common law action for the loss of consortium, but in the workmen’s compensation laws, as written, it has not done so. For the court to read into the statute such an intent that has not been clearly expressed therein is both to ignore fundamental common law principles of statutory construction and to invade the province of the Legislature. I am therefore constrained to vote to reverse the judgment below. For affirmance — Justices Heher, Oliphant, Wacheneeld and Bubling — 4. For reversal — Chief Justice Vanderbilt — 1 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9757467. Public record. Not legal advice.