Hudson v. Gas Consumers' Ass'n

Decision Date22 September 1939
Docket NumberNo. 24.,24.
Citation8 A.2d 337,123 N.J.L. 252
PartiesHUDSON v. GAS CONSUMERS' ASS'N.
CourtNew Jersey Supreme Court

DONGES, Justice, and HETFIELD, DEAR, and WELLS, Judges, dissenting.

Appeal from Supreme Court.

Action by Florence B. Hudson against the Gas Consumers' Association for personal injuries. From a judgment for defendant, the plaintiff appeals.

Judgment reversed and complaint reinstated.

McDermott & Finegold, of Freehold (Harold McDermott, of Freehold, of counsel; M. Raymond McGowan, of Freehold, on the brief), for appellant.

Edward R. McGlynn, of Newark (Joseph Weintraub, of Newark, on the brief), for respondent.

BROGAN, Chief Justice.

The main question in this case is whether a wife may have an action for personal injuries against the employer of her husband where it appears that her hurt was caused by the husband's negligence done in the course of the performance of his duty to his employer. The trial court, on motion addressed to the complaint, struck it out, directed entry of judgment for the defendant, and this is the plaintiff's appeal from the judgment accordingly entered.

Mrs. Hudson, plaintiff, alleged that she was a passenger in an automobile then operated by her husband and that because of his negligence in handling the car she suffered serious injuries. She claims to have been "a passenger, guest or invitee" of the defendant employer. Defendant moved to strike out the complaint on the ground that the allegation that Mrs. Hudson was an invitee was sham and on the further ground that because she was in fact the wife of the servant, who was in charge of the car, she had no action against the husband or his employer.

The learned trial judge concluded that because of the unity of person of husband and wife due to the marriage bond, whereby either is immune from civil liability at the action of the other, such immunity also extended to the master in the performance of whose business the tort was committed. We are not in accord with this conclusion.

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 disturbs it.

Before determining the issues raised in this case, it is not amiss to trace the statutory changes in this state which alter the common law rule, so far as pertinent to this case. At common law, and in this state up to the year 1906, the rights of married women, under circumstances like these, were greatly restricted. At common law the husband must have joined with his wife in such action for the tort to the wife done before or after marriage. 1 Chitty on Pleadings, *83, 16th Am.Ed. And the husband had the right to receive the money for damages; he could release the cause of action; and his contributory negligence would defeat such suit. See Pennsylvania R. Co. v. Goodenough, 55 N.J.L. 577, 588, 28 A. 3, 22 L.R.A. 460. But in 1906, Chap. 248, p. 525, the right of a married woman to sue in her own name, without joining her husband therein, for a tort to her person or property was established; and the non-joinder of her husband could not be pleaded to abate such action as theretofore. The statute was amended in 1909, Chap. 138, p. 210, to permit the husband to join in such action his claim for any damages sustained in connection with or growing out of the injury for which his wife brought her action, and further providing that his failure to join should not prevent his right to maintain a separate action therefor. A further statute respecting actions by or against married women was passed in 1912, Chap. 232, p. 416, providing that a married woman might sue or be sued without joining her husband in any case whatsoever in which he would be an unnecessary party if he were not her husband. R.S. 37:2-6, 37:2-9, N.J.S.A. 37:2-6, 37:2-9.

The reason behind the rule that husband or wife may not hold the other civilly liable is that such actions would tend to destroy peace in the family relationship.

Parenthetically, we observe that likewise an unemancipated child may not have such action against its parent, Cf. Reingold v. Reingold, 115 N.J.L. 532, 181 A. 153; Cafaro v. Cafaro, 118 N.J.L. 123, 191 A. 472; and this upon the sound public policy of preserving domestic quiet in the family. But to extend that freedom from liability to a third person charged as principal is quite another matter. The plaintiff's right to sue an employer is an independent, primary right and not subordinate to or dependent upon the right to sue the servant.

The respondent argues that to allow recovery against an employer for the tort of the husband, under these circumstances, is to do violence to the common law rule; that the purpose of the public policy behind the common law rule, i. e., the preservation of domestic peace and harmony, will be jeopardized if recovery may be had by the...

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32 cases
  • Koplik v. C. P. Trucking Corp.
    • United States
    • New Jersey Supreme Court
    • May 5, 1958
    ...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, 8 A.2d 337, 338 (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......
  • Romeo v. Romeo
    • United States
    • New Jersey Supreme Court
    • July 16, 1980
    ...each rule into the legislation itself. This is the interpretation reflected in the early decisions. See Hudson v. Gas Consumers' Ass'n, 123 N.J.L. 252, 253, 8 A.2d 337 (E & A 1939); Freitag v. Bersano, 123 N.J.Eq. 515, 516-517, 198 A. 845 (Ch.1938); Drum v. Drum, 69 N.J.L. 557, 558, 55 A. 8......
  • McKinney v. McKinney
    • United States
    • Wyoming Supreme Court
    • April 5, 1943
    ... ... happened ... See ... additionally Hudson v. Gas Consumers' ... Association, 123 N.J.L. 252, 8 A.2d 337, where it was ... "It ... ...
  • Merenoff v. Merenoff
    • United States
    • New Jersey Supreme Court
    • June 1, 1978
    ...(1930); Harper & James, The Law of Torts 643 (1956); Prosser, Law of Torts 859-860 (4th ed. 1971); Hudson v. Gas Consumers' Association, 123 N.J.L. 252, 253, 8 A.2d 337 (E. & A.1934); Bendler v. Bendler, 3 N.J. 161, 173-174, 69 A.2d 302 (1949) (Ackerson, J., For more than a century, startin......
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