174 A. 209 | N.J. | 1934
This is an appeal from a judgment entered in two causes, tried together, in the District Court of the city of East Orange. There was a discontinuance as to the defendant Moon, leaving Arthur Manager the sole defendant. The first suit is for personal injuries suffered by Mrs. Kimpel in a collision between an automobile, in which she was a passenger, driven by the defendant and one owned by Mrs. Kimpel and driven by Mr. Kimpel. The second is by Mrs. Kimpel for her property damage and by Mr. Kimpel for *221 resultant expenses and loss of consortium. Mrs. Kimpel was awarded $100 for her personal injuries and nothing for property damage; and the co-plaintiff was awarded $40 on his count for expenses and loss of consortium. The court, sitting without a jury, determined that the accident "was caused by the joint negligence of the parties," meaning thereby Martin Kimpel and Arthur Manager, drivers of the respective cars. The appeal is by the defendant.
There are eight points argued. The first is that the question, "Where were you married," asked of Martin Kimpel on cross-examination was overruled. Kimpel's claim for loss of consortium was dependent upon his being Mrs. Kimpel's husband. He had testified on direct that Madeline Kimpel was his wife. On cross the above question was asked, and the examining attorney stated that it was for the purpose of ascertaining whether the relationship of husband and wife in fact existed. The question was clearly grounded in essential testimony brought out during the direct examination. It was both relevant and material. The ruling was erroneous.
Point two relates to a question asked of Mrs. Kimpel which the court overruled. The question was not strict cross-examination. Points three, four and five set out overruled questions asked of the same witness in an effort to lay the foundation for an impeachment but incompetent because not sufficiently definite. Point six complains because the court stopped a witness from testifying that after the accident plaintiff Martin Kimpel "started bawling" at someone — a ruling that was within the realm of judicial discretion. Points two to six, inclusive, present no harmful error.
The question presented under the seventh point is whether the husband, having been found guilty of contributory negligence, may recover for incidental expense and loss of consortium. We may start with the established rule in this state as given by Mr. Justice Depue in Menger v. Laur,
The contention that the law entitles a man to recover for the loss of his wife's society when he has contributed directly to the act from which that deprivation flows is contrary to the drift of judicial opinion on the legal effect, generally, of contributory negligence and leaves us unconvinced. The courts of the State of New York have taken much the same *223
view as have we regarding the effect of contributory negligence by a beneficiary upon the right of recovery under a statute for death by wrongful act; but the New York Court of Appeals inMcKay v. Syracuse Rapid Transit Railway Co.,
"So, when injury is caused by the concurring negligence of two or more persons, each is liable for all the damages thus caused, and for the same reason, when damage is caused by the concurring negligence of both the plaintiff and defendant, the former cannot recover at all. The rule would apply in case the plaintiff were suing individually in his own right — e.g., to recover on the defendant's common-law liability to him for injuries to his wife — but it has no application to a statutory action substituted for the wife's common-law action, which abated upon her death. It was for the legislature to prescribe the condition to the maintenance of the statutory action."
We conclude that the trial court, having found as a fact that the husband had by his act contributed directly and proximately to the accident, erred as a matter of law in awarding damages to the husband for loss of consortium and for incidental expense.
Excessiveness of the award to Mrs. Kimpel, set up as point eight, is not cognizable upon appeal.
The judgment below will be affirmed as to the award granted Mrs. Kimpel; and it will be reversed and a new trial had as to Martin Kimpel.