*1 HEYMAN, ADMINISTRA AND ADMINISTRATOR NATHAN THE ESTATE OF NETTIE OF AD PROSEQUENDUM TOR PLAINTIFF-APPELLANT, DECEASED, GORDON, DEFENDANT-RESPONDENT, GORDON, AND HARRY SCHNEBER, DEFENDANT. CHARLES May 6,
Argued March 1963 Decided N. Rimm the cause for argued plaintiff-appel- Mr. Marvin Rimm, Rimm, Mr. attorneys; Finn and lant (Messrs. counsel).
Mr. Augustine A. Repetto argued defendant- *2 respondent mid Mr. Bolte (Messrs. Repetto, attorneys; Repetto, of counsel). of the opinion court was delivered by J. This litigation involves another of intra- aspect
Hall, family tort actions. a death action for May wrongful sole of an benefit minor child maintained unemancipated the father against grounded on the latter’s alleged neg- which ligence resulted in the death of the wife and mother? The death occurred from automobile collision between cars driven by and defendants Gordon Mrs. Schneber. Gordon, the decedent awas in her passenger husband’s car with their son along The son was Stanley. of years time, at the age and unemancipated solely dependent upon for his father support. his a plaintiff, was stranger, appointed administrator and ad prose- administrator quendum wife’s estate. He instituted this action Schneber, Gordon and which a against included claim against Gordon for from death. N. J. damages resulting SA:31-1, et The complaint Mr. seq. alleged that Gordon was not on his wife at dependent the time of her death and the death claim was asserted for the benefit solely the son. Gordon carried insurance; liability Schneber was an uninsured motorist.
Gordon, course, his insurance carrier of for moved summary as to the death judgment claim him. The Law Division the motion and granted plaintiff’s appeal Division on own Appellate was certified our motion.1
The trial court for two reasons gave Eirst, decision. it said that death statute permits an action thereunder of a the death is caused person “[w]hen dismissed delay, treat trial court did not appealable While claims remained after the matter as if the R. R. claim, at 4:55-2, and determine expressly stage, so defendant does not judgment direct this phase did contain the granting there entry of the case is of final press of the motion and the requisite judgment just technically point reason recitals. and we on the would, if death default, act, or a by wrongful neglect maintain injured ensued, have entitled the person had not * * from the damages resulting an action for Jersey, law in New that, under the and if she had husband have sued her Mrs. could not Gordon a claim for action is Second, the substance survived. child against an unemancipated for the benefit of damages this State. law of barred the decisional likewise parent, of action creates death statute While our wrongful did a tort claim law because which did not exist at common statutory injured party, the death of the not survive if death non as the same sine qua claim still has to rest upon e., default” act, resulted, i. “a wrongful neglect had not and measure of theory damages, the defendant. The *3 distinction. beneficiaries, fundamental the constitute the so not sue the other one spouse may Our law is settled that inflicted, at law or equity, for injuries negligently family on the relationship. of based primarily reasons policy J. Where 27 N. Trucking (1958). v. C. P. Corp., Koplik because as for disappeared, example the reason has policy reason for the bar of defendant spouse, of the death the latter’s estate. and the action is permitted against is gone case, In the instant 35 N. J. 44 (1961). exists however, despite this basic consideration still is still within beneficiary since the injured spouse, for the bar. rise to this reason the family relationship giving formalities, not be of which should the situation Stripping it, real and interest only party allowed to disguise father on money He seeks to collect from his is the son. caused the death of the latter negligently the ground difference between this state We see no essential his mother. child sues his and that where unemancipated of fact caused. That own injuries, negligently for his parent in New even Jersey of action not be prosecuted a cause insured, was decided by Hastings where the parent J. reasons there policy Hastings, here. are controlling relied upon equally "Weneed not the first relied pass upon upon ground e., court, the trial i. of of N. by reason requirement 2A:31-1, no will action for lie because the decedent could not have maintained a her hus suit against if band death had not ensued. In states like New Jersey where the statute rather creates new cause of action than survival, the effect of the authorities are divided as having to whether this to elements requisite pertains only inhering in the tort itself or extends to disabilities and im personal well. A. L. munities as See cases collected in Annot. 28 R. Prosser, Torts, 2d 662 716-717 ed. pp. (2d § and, James, Torts, Harper Lem 24.5 § As New court said in Levlock v. Hampshire 101 N. H. A. 2d Spanos, Ct. 1957), (Sup. most courts held that immunities life do bar a during death action. The has never been decided point apparently court A trial appellate State. court decision some years as did the Law Division here. ago squarely Damiano, Damiano 6 N. J. Misc. A. (Cir. 1928). Long Landy, supra did not (35 44) present the issue since there the action was not under the death act but surviving spouse the estate of her deceased husband.
We have considered all the carefully for reversal arguments but find rrone by plaintiff of them in view urged persuasive reasons set forth above. We policy appreciate, course, that some other have reached an jurisdictions opposite result, but we are convinced *4 have they done so reason different to their death acts or a approaches dissimilar point of view with regard intra-familv negligence actions.
Affirmed.
Jacobs, J. (dissenting). intra-family immunities from tort responsibility been condemned academic discussions and in judicial elsewhere; detailed opinions reference to those discussions and be found in opinions may the v. P. 1, dissents to C. Koplik Trucking Corp.,
56 33 Hastings, v. and Hastings
13-22 (1958), immunities the attacks on More recent 253-261 (1960). Klein, 692, 26 Cal. Cal. 2d v. 58 in Klein are contained Cramer, 379 P. 2d Cramer 102, 376 P. 70 (1962); Rptr. Trevarton, 378 Trevarton Ct. 1963); 2d 95 (Alaska Sup. 145 Dame Law. 34 Notre 640 Sup. P. 2d (Colo. L. 27 Fordham NJLJ 29 (1959); in 82 (1958), reprinted NJLJ 48 in 82 (1959); Rev. 422 reprinted (1958), L. Rev. 453 (1958); 10 Ala. W. Va. L. Rev. 294 (1958); L. Tul. Rev. (1960); L. Rev. 99 (1959); U. Miami L. Rev. 265 Q. 171; (1960); 1960 Wash. L. Clev.-Mar. U. L. Rev. 1450 Q. (1961); L. 47 Va. 34 Temp. (1961); J. L. J. 192 23 Ohio St. Sol. N. Y. 2d J., Badigian, Fuld, Badigian dissenting In 35, 174 N. E. 2d Y. 2d out Lawyer Dame points on the Notre commenting Koplilc, insurance com liability “a windfall for that it effected simply law with attempt equate and added little “to panies” Law on Hastings, Temple and in justice”; commenting there cur under no realistic view is notes that Quarterly ordinary immunities in the rent justification invoking a insured motorist. automobile accident case against fully a motorist’s care- In (1961), in his death and caused an accident which resulted lessness administrator of his estate to his wife. sued the She a it was urged and obtained verdict. On appeal her her from maintaining interspousal immunity prohibited a unani- rejected by action but this contention was readily Haneman In course of his mous court. opinion, a infliction of hus- injury by out that “the points negligent act”; that it does not lose band his wife is upon wife because the is merely precluded quality action; from her immunity maintaining law for the based on the immunity, concept reason wife, husband and exists when the mar- unity longer “dissolved the death of either party”; riage “cannot be affected deleteriously marital status thus dissolved *5 which policy that “the action”; public an interspousal further no home has in the disharmony to seeks prevent harmony pro no matrimonial basis, there being factual J., with 50, 51, 53. Dealing 35 N. at pp. tect.” See statute, in pro that Haneman held tort death of the in tort survives the action viding not so related.” well as others feasor, as spouses “applies statutory pro He found with the terms difficulty action could bring vision that the plaintiff have “maintained against administrator as she might refused to intestate,” import or and he properly testator quite lan statutory law into the immunity Davis, E. 2d 410 Ill. Welch v. See guage. Nelson, Minn. 28 A. L. R. 2d 656 Shumway 319, 107 W. 2d 531 N. (1961). Davis, had occasion
In Justice Schaefer Welch supra, was interspousal immunity applicable to consider whether He act of Illinois. in a suit under the death not, “whatever present it was stating contexts, no in other reason exists of that vitality immunity recovery Death Act to bar it into the Wrongful for reading Matsoukas, 7 Ill. 2d case.” Nudd v. Illinois statute contains language N. E. 2d 525 The Hew Jersey’s wrongful identical with substantially Nelson, In Shumway supra, 2A:31-1. act. See car, drove his accident causing the husband negligently death and the death of his wife. The which resulted as plaintiff, statutory heir was minor daughter. husband’s estate and the issue trustee, presented sued the Court was whether the inter- Supreme Minnesota to the in Minnesota, which still prevailed immunity, spousal court, Dell, Chief Justice held that applicable. not, saying: it was provides (Minn. death-by-wrongful 573.02, act statute St. “Our 1) :
subd. act or omission of is caused ‘When appointed provided corporation, person the trustee in subdivision *6 might maintain an action therefor the decedent have main- if action, Uved, wrongful tained an had he caused such * *’ * (Italics supplied) act or omission. argues plaintiff’s Defendant if decedent could not have brought lifetime, in the action her the conditional clause the statute prohibits maintaining likewise the trustee from the action. can-We agree that such a narrow construction is consistent with the legislative intent. The statute is remedial in character and thus * * * requires a liberal construction. this clause refers to the giving action, facts and circumstances rise to the cause of as well as pertaining any permissible facts or circumstances defenses contributory negligence, person by such as rather than to the whom 2d, p. the action could be maintained.” 107 N. W. at 533.
Courts in other jurisdictions which still adhered to the
immunity declined to
in
apply it
suits under
acts
to New
comparable
Sessions,
act.
Jersey’s
See Shiver v.
Cox,
2d 905
So.
(Fla. 1955); Russell v.
As *7 deceased, the wife is here since has no application munity import have cases which refused and in the holdings as the death acts their law immunities into since he is immaterial beneficiary’s infant status indicate, the cause of action nor involved in the origins not act, alleged wrongful of the defendant’s subject was he the is he actively nor legal and he is not to the party proceeding Indeed, New Jersey maintenance. participating here con far beyond anything suggested courts have gone strictly to death actions their attention fining action; involved in the parties origins that, contributory consistently they though thus bar, contributory be a neg of the decedent negligence is immaterial. See Consolidated of the beneficiary ligence Hone, L. 275 Ct. (Sup. 1896), Traction Co. 60 J. L. 444 & A. 1897); other (E. reversed on grounds, Co., 1140, 1143, Hackensack Water Misc. Van Clik v. 109 N. J. L. 1924); Bastedo Frailey, A. 634 (Sup. v. Delaware Cloyes Tp., Super. & A. (E. J. 324, Div. aff’d 23 N. 1956), 37 (App. Annot., L. R. 2d but A. also cf. York & New Hook Jersey Sandy Halecki v. New United Ass’n, reversed 1958), Pilots 251 F. 2d Cir. (2 L. Ed. 2d 541 (19-59). U. S. S. Ct. Legal doctrines should rest on rather than reality fiction and should always molded and with justice applied upper- most in mind. Here an unjust reached, result being because of any legislative precedential compulsion, but because of a notion that the familial relationship might some- how or other be impaired because the is a beneficiary minor child of the defendant. It seems inconceivable that impairment flow could from this of automobile type accident case in which a stranger prosecutes as the legally designated representative estate of wife, the deceased and the husband defends insurance carrier which will be liable for any ensuing judgment. I vote to reverse.
The Chief and Justice join Schettifo dissent.
For Erafois, Proctor, Hall affirmance—Justices Hafemaf —4.
For reversal —Chief Justice Weiftraub and Justices Jacobs and Schettifo — 3.