Koplik v. C. P. Trucking Corp.

141 A.2d 34, 27 N.J. 1, 1958 N.J. LEXIS 181

• Court: Supreme Court of New Jersey
• Decided: May 5, 1958
• Status: Published

Opinions

The opinion of the court was delivered by

Francis, J.

Plaintiff Rosemarie Koplik was injured in a motor vehicle collision on June 17, 1955, in the State of Yew York. The defendant Frederick Patrizio was the driver of one of the vehicles involved and plaintiff was riding in it as an invited passenger. At that time both parties resided in Yew Jersey and they have continued to do so. On January 11, 1956, Miss Koplik instituted this action against Patrizio to recover damages on account of her injuries. Thereafter, on June 2, 1956, she married him. On motion predicated upon the ground that the marriage removed her right to prosecute the suit, the trial court entered summary judgment for the defendant. The Appellate Division reversed, holding that the Married Persons Act, N. J. S. A. 37:2-1 et seq., does not stand in the way of prosecution of a cause of action by a wife against her husband for an antenuptial tort. Koplik v. C. P. Trucking Corp., 47 N. J. Super. 196 (App. Div. 1957). We granted certification to review the matter.

Since the parties were not husband and wife when the mishap occurred, manifestly the female plaintiff acquired a cause of action against Patrizio at that time. Yo conflict of laws problem is presented with respect to it, for both Yew York and Yew Jersey recognize her right to sue in such a situation. The issue here is simply whether the subsequent marriage before judgment extinguishes the right to prosecute the action.

It is universally acknowledged that at common law a tort such as this one could not be redressed between wife and husband by action at law or in equity. Kennedy v. Camp, 14 N. J. 390 (1954). This immunity has been diluted in the various states and in England by “married persons” statutes. The extent of the refinement brought about by these acts has been the source of much conflict among the courts throughout the country. But, as is recognized in the Appellate Division opinion, the majority have decided that such legislation does not sanction suits between spouses for personal torts. 47 N. J. Super., at page 200; Annotation 43 A. L. R. 2d 632, 636 (1955). One conclusion is inescapable from a review of the divergent viewpoints. The particular statute is controlling and the immunity persists except as the language employed by the Legislature appears to direct its modification or relaxation. 43 A. L. R. 2d, at page 651; McCurdy, “Torts Between Persons in Domestic Relation” 43 Harv. L. Rev. 1030, 1081 (1930). If the enactment expressly or by clear implication preserves the interspousal exemption and the ancient barrier against actions between husband and wife for injuries negligently inflicted by one on the other, whatever may be the personal predilections of the particular court in such matters, they must give way to the legislative will. Thus, we are brought to an examination of the Married Persons Act of this State.

Over a period of more than 100 years, a succession of New Jersey Legislatures have narrowed the scope of the disability of the husband and wife in their jural relations with each other and with third persons. Out of the numerous enactments has evolved the body of law appearing in N. J. 8. A. 37:2-1 et seq. The specific respects in which the immunities and disabilities have been removed appear in Justice Ackerson’s dissent in Bendler v. Bendler, 3 N. J. 161, 174-175 (1949), and need not be repeated here. The important factor to be noted is that despite the changes thus made in the common law, and the decisions construing the statutory language by which they were accomplished, N. J. S. A. 37:2-5 still contains the following wordage which is comparatively more pervasive than that of the original enactment in the Revision of 1877, p. 639, § 14:

“Nothing in this chapter contained shall enable a husband or wife to contract with or to sue each other, except as heretofore, and except as authorized by this chapter.”

It is not suggested that personal injury tort actions between husband and wife based upon negligence were maintainable prior to 1877, or that this enactment authorized them.

As far back as 1880, the clarity of that language was the subject of judicial comment. In Woodruff v. Clark & Apgar, 42 N. J. L. 198 (Sup. Ct. 1880), Chief Justice Beasley, speaking of the disability to contract, said:

“This language is not uncertain, and the provision is perspicuous with respect to its policy. The object was to leave the husband and wife, touching their capacity to bargain together, on the ancient footing of the common law. The clause is virtually a legislative declaration that, as heretofore, they may enter, inter sese, into equitable agreements, but not into legal agreements. •

At all events, the will of the legislature is expressed in an unequivocal manner, to leave unaltered the status of married persons in relation to this subject, and the consequence is the contract in question cannot be carried into effect in a court of law.”

And as late as 1949, this court adopted Chief Justice Beasley’s view of the unambiguous character of the provision and applied it with unabated vigor as a bar to enforcement of alleged workmen’s compensation rights arising out of inter-spousal employment contracts. Bendler v. Bendler, supra. Continuance of the “disablement of husband and wife * * * to sue each otheT * * * ‘except as heretofore, and except as authorized’ ” by the Legislature, was recognized and the acceptance of the rule was accompanied by the statement:

“* * * The integrity of the marriage relation is of primary concern to society. That is the principle of the statutory provision that continues the common-law mutual disability of a husband and wife to contract inter se and to sue each other. * * *”

An effort was made in 1926 to establish that a cause of action for personal injuries suffered by a wife through the negligence of her husband could be prosecuted in equity. But on motion the complaint was stricken. Von Laszewski v. Von Laszewski, 99 N. J. Eq. 25 (Ch. 1926). Vice-Chancellor Learning said:

“Neither at law nor in equity can an action be maintained by a wife against her husband for personal injuries.

As to our Married Woman’s Act * * ®, it is sufficient to say that, in the absence of a clear manifestation of legislative intent to effect so radical a change in bur long-established rules in this respect, legislative purpose should not be declared by implication.”

The rule was reiterated in 1939 in Hudson v. Gas Consumers’ Association, 123 N. J. L. 252 (E. & A. 1939), where the court declared:

“It is of course a settled matter that a wife may not have a suit for damages against her husband for his tort. This is the common law rule and no statute has been enacted in this state that distui'bs it.”

It was recognized again by this court in Clement v. Atlantic Casualty Ins. Co., 13 N. J. 439, 445 (1953), and repeated as a settled doctrine in Kennedy v. Camp, supra, 14 N. J. at page 397. And see also Drum v. Drum, 69 N. J. L. 557 (Sup. Ct. 1903); Metzler v. Metzler, 8 N. J. Misc. 821 (Cir. Ct 1930); Lang v. Lang, 24 N. J. Misc. 26 (Cir. Ct. 1946). In spite of the many years that have gone by since the proscription against such interspousal suits was first enacted, during which the courts have been applying it in the situations described, it has never been changed. On the contrary it was included in the General Statutes of 1895, p. 2015, § 14, and in the Compiled Statutes of 1910, p. 3237, § 14. And in the Revised Statutes of 1937 the language was made more comprehensive and more emphasis was given to it by specifically relating it to the various legislative enactments which were then gathered into chapter 2 of Title 37. At that time, as has been indicated, the prohibition took on its present form: “Nothing in this chapter contained shall enable a husband or wife * * * to sue each other * * N. J. S. A. 37:2-5. Thus it may be said fairly that in this State the common law interspousal negligence tort immunity has been perpetuated, and that it has been made a part of our statutory law as well. After the repeated constructions and applications of the act by the courts, its re-enactment in the Revision must be regarded as a gesture of legislative approval of such judicial interpretation. Sacknoff v. Sacknoff, 131 Me. 280, 161 A. 669 (1932); cf. State v. Federanko, 26 N. J. 119 (1958).

The history of the litigation before us, as it has been outlined, shows that the accident happened and that the suit was brought prior to the marriage. The specific question posed, therefore, is whether such circumstances render the interspousal disability any the less operative. There is no doubt that the parties are now husband and wife. The statute establishes no qualifications on the general prohibition against a suit between them. It is of no material consequence whether the action was instituted before or after the marriage. The word “sue” in its ordinary connotation, and patently in the sense used by the Legislature, means to commence or to continue legal proceedings to their proper and usual termination. Hindman v. Holmes, 4 Ill. App. 2d 279, 124 N. E. 2d 344 (App. Ct. 1955); Sigona v. Slusser, 124 F. Supp. 327, 329 (D. C. Conn. 1954); Lervold v. Republic Mut. Fire Ins. Co., 142 Kan. 43, 45 P. 2d 839 (1935); Black’s Law Dictionary (4th ed. 1951), p. 1600; Webster’s New International Dictionary (2d ed. unabridged, 1949) p. 2519. So the crucial criterion is simply whether the litigants are husband and wife. If so, the public policy of the State, as reflected in the statute, bans the action. Cf. Clement v. Atlantic Casualty Ins. Co., supra, 13 N. J. at page 445. And the right to sue, that is, to prosecute the cause of action, must be considered as having been extirpated by the voluntary assumption of the marital status. For manifestly our statute simply disables or incapacitates the spouse possessing the cause of action from suing the tortfeasor mate. Bendler v. Bendler, supra, 3 N. J. at page 168; Clement v. Atlantic Casualty Ins. Co., supra. We pass no judgment as to whether the claim may be vindicated by action in Hew York. The principle with which we are concerned does not look to the relation of the parties when the cause of action accrued or when the case was commenced but to their status at the time when their rights are judicially determined. Spector v. Weisman, 59 App. D. C. 280, 40 F. 2d 792 (Ct. App. D. C. 1930).

The reports contain but one case in New Jersey where the precise question was raised In Wolfer v. Oehlers, 8 N. J. Super. 434 (Law Div. 1950), it was held that the reciprocal spousal disability prevented continuance of a suit for an antenuptial tort stemming from an automobile accident. Of course, the ruling is not binding on this court, but it is not without persuasive influence, particularly since it was cited with apparent approval—at least without critical comment—in Clement v. Atlantic Casualty Ins. Co., supra, 13 N. J. at page 445. Furthermore, this Court by way of express statement, albeit dictum, in Kennedy v. Camp, supra, 14 N. J. at page 397, said:

“And, for the same basic reason, liability for ante-nuptial torts is extinguished by marriage.”

Two cases were cited in support of that view, Henneger v. Lomas, 145 Ind. 287, 44 N. E. 462, 32 L. R. A. 848 (Sup. Ct. 1896), and Gottliffe v. Edelston, 2 K. B. 378 (1930). The Eenneger ease, which asserted the principle, is still the law of Indiana, although it was criticized later by an intermediate appellate court in Hunter v. Livingston, 125 Ind. App. 422, 123 N. E. 2d 912 (App. Ct. 1955). Gottliffe v. Edelston has since been overruled expressly by Curlis v. Wilcox, 2 K. B. 474, 2 All. Eng. 573 (1948), as to instances where suit is brought on such a tort prior to the marriage. But additional precedents are readily available. Baker v. Gaffney, 141 F. Supp. 602 (D. C. 1956); Morgan v. Leuck, 137 W. Va. 546, 72 S. E. 2d 825 (Sup. Ct. 1952); Furey v. Furey, 193 Va. 727, 71 S. E. 2d 191 (Sup. Ct. 1952); Staats v. Co-Operative Transit Co., 125 W. Va. 473, 24 S. E. 2d 916 (Sup. Ct. 1943); Carmichael v. Carmichael, 53 Ga. App. 663, 187 S. E. 116 (1936); Kyle v. Kyle, 210 Minn. 204, 297 N. W. 744 (1941); Patenaude v. Patenaude, 195 Minn. 523, 263 N. W. 546 (Sup. Ct. 1935); Lubowitz v. Taines, 293 Mass. 39, 198 N. E. 320 (Sup. Jud. Ct. 1936); Palmer v. Edwards, 155 So. 483 (La. App. 1934), rehearing denied 156 So. 781 (La. App. 1934); Scales v. Scales, 168 Miss. 439, 151 So. 551 (Sup. Ct. 1934); Webster v. Snyder, 103 Fla. 1131, 138 So. 755 (Sup. Ct. 1932); Raines v. Mercer, 165 Tenn. 415, 55 S. W. 2d 263 (Sup. Ct. 1932).

The Massachusetts statute, referred to in Lubowitz v. Taines, supra [293 Mass. 39, 198 N. E. 321], is quite like ours. It says, inter alia,

“A married woman may sue and be sued in the same manner as if she were sole; but this section shall not authorize suits between husband and wife.” (7. L. (Ter. Ed.) c. 209, § 6.

Such language provided the requirement for dismissal after marriage of a suit predicated upon a pre-marriage automobile accident. The ground assigned was that the statute extinguished the right to sue when the change of status took place.

Regardless of the views expressed in other jurisdictions, we must come back to our own statute for the ultimate decision. The language clearly maintains the interspousal disability. Under the interdiction a wife cannot sue her husband in this sort of case. And it would be an illogical interpretation to declare that a wife is not a wife, or suing as a wife, within its meaning, because her action is predicated upon an antenuptial tort. Moreover, it cannot escape attention that in the eight years since the Wolfer case was decided, the Legislature has made no move to alter the doctrine, although in 1953 an amendment was made to N. J. S. A. 37:2-9, which deals with the procedural right of a wife to sue for torts committed against her without joining her husband in the action. L. 1953, c. 34.

It is of no consequence that the automobile accident took place in New York, where by statute a wife can sue a husband. 14 McKinney’s Consolidated Laws of New York, Annotated, Domestic Relations Law, Consol. Laws, c. 14, § 57. Plaintiff and defendant, who were and are residents of this

state, were not married at the time. Upon assumption of the marriage relationship subsequent to the origin of this ordinary tort cause of action between them as individuals, by force of our statute and the public policy represented thereby, there no longer existed any tribunal here in which the wife’s claim could be prosecuted. But assuming that some form of conflict of laws problem can be considered as arising from the fact that had the parties been residents of New York, their marriage would not have prevented the prosecution of suit in that state, plaintiff’s position is not improved. The situation would be somewhat similar, although of much weaker significance as a conflict of laws problem, to that appearing in Mertz v. Mertz, 271 N. Y. 466, 3 N. E. 2d 597, 598, 108 A. L. R. 1120 (Ct. App. 1936), which was decided while the interspousal disability was still in force in New York. (The amendment referred to was adopted shortly after the case was decided. L. 1937, c. 669.) There, it appeared that a wife was injured in an accident while a passenger in a car driven by her husband. They were residents of New York but the accident occurred in Connecticut where the legislature had chosen to eliminate the common law disability of spouses to sue each other. The wife brought suit in New York. The action was dismissed, the Court of Appeals holding that the law of the place where the suit is brought is determinative of the issue of whether a wife may sue her husband for personal injuries. Speaking for the court, Judge Lehman said:

“The law of one state has in other jurisdictions such force only as is lent to it by the law of such jurisdiction. A cause of action for personal injuries is transitory. Liability follows the person and may be enforced wherever the person may be found. None the less, a cause of action arising in one state may be enforced in another state only by the use of remedies afforded by the law of the forum where enforcement is sought. The courts of the state of New York are not concerned with the wisdom of the law of Connecticut or of the internal policy back of that law. They must enforce a transitory cause of action arising elsewhere, unless enforcement is contrary to the law of this state. So we have said, ‘The courts are not free to refuse to enforce a foreign right at the pleasure of the judges, to suit the individual [njotion of expediency or fairness. They do not close their doors unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.’ ¡\t Hi H* ❖ Hi Hi H« H<

The law of the forum determines the jurisdiction of the courts, the capacity of the parties to sue or to be sued, the remedies which are available to suitors and the procedure of the courts. Where a party seeks in this state enforcement of a cause of action created by foreign law, he can avail himself only of the remedies provided by our law, and is subject to the general limitations which are part of our law. * * * ‘If no form of action is provided by the law of a State for the enforcement of a particular foreign right, no action to enforce that right can be maintained in the State.’ Restatement of Law of Conflict of Laws, § 609. Our courts are not concerned with the internal policy of the state which created the cause of action. They are concerned solely with the law of this state which determines the jurisdiction of its courts and the remedies that may be accorded here. The law of this state attaches to the marriage status a reciprocal disability which precludes a suit by one spouse against the other for personal injuries. It recognizes the wrong, but denies remedy for such wrong by attaching to the person of the spouse a disability to sue. No other state can, outside of its own territorial limits, remove that disability or provide by its law a remedy available in our courts which our law denies to other suitors. * * * A disability to sue which arises solely from the marital status and which has no relation to a definition of wrong or the quality of an act from which liability would otherwise spring may perhaps be an anachronistic survival of a common-law rule. Even then the courts should not transform an anachrony into an anomaly, and a disability to sue attached by our law to the person of a wife becomes an anomaly if another state can confer upon a wife, even though residing here, capacity to sue in our courts upon a cause of action arising there.”

See also Kyle v. Kyle, supra; Kircher v. Kircher, 288 Mich. 669, 286 N. W. 120 (Sup. Ct. 1939); Poling v. Poling, 116 W. Va. 187, 179 S. E. 604 (Sup. Ct. 1935). It may be noted also that after the amendment of the New York statnte and although its own residents were involved, the courts of that state exhibited a sensitive regard for the policy of states where the right of action continued to be banned. Coster v. Coster, 289 N. 7. 438, 46 N. E. 2d 509, 146 A. L. R. 702 (Ct. App. 1943).

As a final word on the subject, we hold the view that even where an actual conflict of laws problem is directly presented, it is sensible and logical to have disabilities to sue and immunities from suit arising from the family relationship determined by reference to the law of the state of the family domicile when the suit is brought in that state. Otherwise, the lex loci will be permitted to interfere seriously with a status and a policy which the state of residence is primarily interested in maintaining. Emery v. Emery, 45 Cal. 2d 421, 289 P. 2d 218 (Sup. Ct. 1955); Ford, “Interspousal Liability for Automobile Accidents in the Conflict of Laws: Law and Reason Versus the Restatement,” 15 U. of Pitt. L. Rev. 397, 409-415 (1954).

In the final analysis, solution of the problem of continued existence of the suit disability in a particular jurisdiction depends upon its statute. The policy issue is clear and if a legislature wishes to abrogate the immunity, it ought to say so clearly and unequivocally. Such was the view of the United States Supreme Court in Thompson v. Thompson, 218 U. S. 611, 31 S. Ct. 111, 112, 54 L. Ed. 1180 (1910), in passing upon the effect of the District of Columbia married persons act. The court said:

“It must be presumed that the legislators who enacted this statute were familiar with the long-established policy of the common law, and were not unmindful of the radical changes in the policy of centuries which such legislation as is here suggested would bring about. Conceding it to be within the power of the legislature to make this alteration in the law, if it saw fit to do so, nevertheless such radical and far-reaching changes should only be wrought by language so clear and plain as to be unmistakable evidence of the legislative intention. Had it been the legislative purpose not only to permit the wife to bring suits free from her husband’s participation and control, but to bring actions against him also for injuries to person or property as though they were strangers, thus emphasizing and publishing differences which otherwise might not be serious, it would have been easy to have expressed that intent in terms of irresistible clearness.”

All of these considerations lead to the conclusion that under our present statute, N. J. S. A. 37:2-5, the plaintiff wife cannot maintain the action against her defendant husband. There is no present need to dilate the arguments that have been advanced for and against the continued existence of the interspousal immunity doctrine. They are set forth very well in the exhaustive opinion of the Oklahoma Supreme Court in Courtney v. Courtney, 184 Okl. 395, 87 P. 2d 660 (Sup. Ct. 1938), where, in the discussion of the views of the various states, it was pointed out that the New Jersey statute forbids such actions. A similarly elaborate essay appears in McCurdy, supra, 43 Harv. L. Rev. 1030 et seq.

If, as was said in discussing the problem of statutory construction involved in Kennedy v. Camp, supra, this construction “be considered narrow and its consequences socially undesirable * * * the remedy lies in the hands of the Legislature.” At page 403 of 14 N. J.

The judgment of the Appellate Division is reversed and that of the trial court is reinstated.