Friedrichsen v. Niemotka

• Decision Date: 05 January 1962
• Docket Number: No. L--3594,L--3594
• Parties: Hans J. FRIEDRICHSEN, Plaintiff, v. Genevieve NIEMOTKA and Wilhelmina Friedrichsen, Defendants.
• Court: New Jersey Superior Court

Page 398

71 N.J.Super. 398

177 A.2d 58

Hans J. FRIEDRICHSEN, Plaintiff, v. Genevieve NIEMOTKA and Wilhelmina Friedrichsen, Defendants.

No. L--3594.

Superior Court of New Jersey Law Division.

Jan. 5, 1962.

Stanley W. Greenfield, Elizabeth, for plaintiff.

Edward M. Gurry, Newark, for defendant Genevieve Niemotka (Gurry & Conlon, Newark, attorneys).

Charles V. Webb, Jr., Newark, for defendant Wilhelmina Friedrichsen (Gaffey & Webb, Newark, attorneys).

FULOP, J.C.C.

Plaintiff is the father of an infant who was allegedly seriously injured in an automobile accident when 14 months old. The father sues defendants for medical and hospital expenses incurred and to be incurred, and for loss of services and earnings of his son. The infant is not a party and both sides agree that no suit has been instituted on his behalf.

One of the defendants, Wilhelmina Friedrichsen, moves the court as follows:

1. To stay the present action until suit is instituted on behalf of the son, alleging that the present action is derivative from the son's cause of action for personal injuries;

2. For an order granting defendant leave to have a physical examination of the son by Dr. Flicker, a neurologist.

Both motions are resisted by plaintiff. The first is opposed on the premise that the claim asserted in the present action is not derivative. The second motion is opposed on the ground that the son is not a party to the action and therefore may not be examined under R.R. 4:25--1.

It is now established in this State that the parent's claim for damages Per quod servitium amisit, although it arises out of the injury to the child, nevertheless constitutes an independent cause of action which may be separately maintained. In Higgins v. Schneider, 61 N.J.Super. 36, 160 A.2d 165 (App.Div.1960), affirmed o.b. 33 N.J. 299, 164 A.2d 299 (1960), it was held that the parent's cause of action may be barred by the statute of limitations at an earlier date than the child's. In Maccia v. Tynes, 39 N.J.Super. 1, 120 A.2d 263 (App.Div.1956) , it was held that the contributory negligence of the parent bars his recovery but does not bar recovery by the child. In Blackman v. Iles, 4 N.J. 82, 71 A.2d 633 (1950), it was held that a parent may recover for loss of services of a minor child resulting from her seduction even though the child herself was precluded from recovering by statute (now N.J.S. 2A:23--1 et seq.). See Vanderbilt, C.J dissenting opinion in Danek v. Hommer, 9 N.J. 56, 87 A.2d 5 (1952). Blanken v. Braslow, 130 N.J.L. 475, 33 A.2d 742 (Sup.Ct.1943), held that a husband's claim for loss of consortium, although included in the same action as the wife's claim for personal injuries, was a separate cause of action, and the two could not be added together to make up the minimum required for removal to the United States District Court.

It follows that the ground presented for the motion to suspend the plaintiff's action until his infant son shall institute an action for personal injuries is erroneous in law. The present action is not dependent and may be independently maintained. In addition, since the infant's claim is not barred by the statute of limitations until two years after he attains the age of 21, granting defendant's motion might postpone plaintiff's recovery for 20 years although he is required to bring the action within two years after the injury. In the alternative, it might force bringing an action on behalf of the child before the statutory law requires and before the child's best interests may dictate. See dissenting opinion of Judge Freund in the Appellate Division in Higgins v. Schneider, supra.

The first motion is denied.

The second motion is for discovery. The plaintiff's cause of action depends upon the nature and extent of his child's injuries. He may recover only for the reasonable cost of such care and treatment as were necessitated by the injuries and only for such loss of services as resulted from the injuries. Plaintiff must prove these facts and defendant has the right to prepare to meet that proof.

Plaintiff contends that there is...