Larocca v. American Chain & Cable Co.

• Decision Date: 24 November 1952
• Docket Number: No. A--330,A--330
• Citation: 92 A.2d 811,23 N.J.Super. 195
• Parties: LAROCCA et al. v. AMERICAN CHAIN & CABLE CO., Inc. et al.
• Court: New Jersey Superior Court — Appellate Division

Page 195

23 N.J.Super. 195

92 A.2d 811

LAROCCA et al. v. AMERICAN CHAIN & CABLE CO., Inc. et al.

No. A--330.

Superior Court of New Jersey Appellate Division.

Argued Oct. 27, 1952.

Decided Nov. 24, 1952.

Harry Chashin and Hyman W. Rosenthal, Paterson, for appellants (Marcus & Levy, Paterson, attorneys; Max D. Forrest, Paterson, of counsel).

Robert Shaw, Newark, for respondents (Shaw, Hughes & Pindar, Newark, attorneys).

Before Judges McGEEHAN, BIGELOW, and JAYNE.

The opinion of the court was delivered by

JAYNE, J.A.D.

A mishap occurred on January 11, 1949 in the City of Paterson in which the plaintiff Carmin Larocca sustained bodily injuries.

The associated circumstances may be concisely imparted. In the erection of an addition to a building of the American Textile Company at Oliver and Jersey Streets, Timber Structures, Inc., the employer of the plaintiff Carmin Larocca, was contractually obligated to fabricate certain trusses 67 feet in length and approximately four tons each in weight and to set each in place upon upright steel columns 15 feet in height. A motor-powered crane having the capacity to elevate and suitably locate the trusses on the columns would be an efficient hoisting instrument, but Timber Structures, Inc. did not own one of the required type.

In this exigency Timber Structures, Inc. procured from the defendant Ench the use of the latter's crane and the services of the operator DeWitt. Some of the details and legally significant features of that engagement will be subsequently discussed.

It was in the process of raising one of the trusses by means of the crane that the truss was noticed to be somewhat out of level and Schmidt, the foreman in the employ of Timber Structures, Inc., directed the plaintiff Carmin Larocca and one Marrino to seat themselves one one side of the suspended truss to equalize its desirable balance. There is testimony that when the truss was elevated to a height of about 15 feet, the operator of the crane permitted the load to drop slightly and its descent was arrested by a sudden jerk, whereupon a piece of cable supplied by Timber Structures, Inc., which encircled the truss, broke and Carmin Larocca fell to the ground.

The foregoing introductory disclosure of the general background of the ensuing litigation must be supplemented by the information that the present action was instituted by Carmin Larocca and his wife, Helen Larocca, as plaintiffs against Rae Construction Co., Inc., American Chain and Cable Company, Inc., Richard A. Ench, the owner of the crane, and Charles DeWitt, the operator, as defendants. The alleged causes of action against Rae Construction Co., Inc., and against American Chain and Cable Company, Inc., were voluntarily discontinued. The action on behalf of both plaintiffs was accordingly prosecuted at the trial against the defendants Ench and DeWitt.

The plaintiff Carmin Larocca sought the recovery from those defendants of compensatory damages for the bodily injuries and incidental losses which he sustained in the mishap. His wife, Helen, demanded damages for the consequential deprivation 'of her husband's aid, assistance, society and * * * consortium.'

The trial resulted in the entry of a final judgment of involuntary dismissal of the alleged cause of action Helen Larocca in favor of both defendants; an involuntary dismissal of the alleged cause of action of Carmin Larocca in favor of the defendant Ench and a Voluntary dismissal of His action against the defendant DeWitt. This appeal is of course addressed to the judgments of involuntary dismissal.

The appeal from the dismissal of the alleged cause of action of Mrs. Larocca is evidently intended to project anew the question whether in this jurisdiction a wife can now maintain an action at law against a third party for the recovery of damages for the deprivation of the comfort and society of her husband, commonly called consortium, in consequence of bodily injuries sustained by her husband through the negligent act or omission, free from malice and intentional wrongdoing of the third party. It was resolved by Justice Bergen in 1921 that such an action was not maintainable. Tobiassen v. Polley, 96 N.J.L. 66, 114 A. 153 (Sup.Ct.1921). Contrast, Sims v. Sims,79 N.J.L. 577, 76 A. 1063, 29 L.R.A.,N.S., 842 (E. & A.1910); Alfone v. Newark Umbrella Frame Co., 13 N.J.Super. 526, 80 A.2d 589 (Cty.Ct.1951); Danek v. Hommer, 14 N.J.Super. 607, 82 A.2d 659 (Cty.Ct.1951), affirmed 9 N.J. 56, 87 A.2d 5 (1952).

The denial to a wife of such a cause of action has been in the past almost universal throughout the several state jurisdictions. Consult annotations in 5 A.L.R. 1050; 13 A.L.R. 1333; 18 A.L.R. 882; 37 A.L.R. 897; 59 A.L.R. 681; 3 Restatement, Torts, sec. 695; 27 Am.Jur. 114, sec. 514.

The principal reasons expressed by the courts, succinctly stated, are: (1) for intentional injuries to the rights of the wife there can be no double recovery. Nash v. Mobile & Ohio R. Co., 149 Miss. 823, 116 So. 100, 59 A.L.R. 676 (Sup.Ct.1928); Feneff v. New York Cent. & H.R.R. Co., 203 Mass. 278, 89 N.E. 436, 24 L.R.A.,N.S., 1024 (Sup.Jud.Ct.1909); (2) the sole loss to the wife is the deprivation of consortium, which loss is too remote to be capable of measure and lies in a region into which the law does not enter. Marri v. Stamford St. R. Co., 84 Conn. 9, 78 A. 582, 33 L.R.A., N.S., 1042 (Sup.Ct.Err.1911); Goldman v. Cohen, 30 Misc. 336, 63 N.Y.S. 459 (Sup.Ct.1900); (3) the married women's acts did not create any new substantive right in the wife but affected only her procedural rights. Tobiassen v. Polley, supra; Boden v. Del-Mar Garage, 205 Ind. 59, 185 N.E. 860 (Sup.Ct.1933); (4) fear that liability for losses arising out of negligence would be expanded inordinately. Stevenson v. East Ohio Gas Co., 73 N.E.2d 200 (Ohio App.1946).

However, ever since the equally universal enactment of the so-called married women's acts designed to place the wife on a legal parity with the husband, the logic of the reasons given for denying the wife's right of action while continuing to grant a like right of action to the husband, has been vigorously questioned by some courts and by many text book authors and commentators. Harper, Law of Torts 566 (1941); Prosser, Torts 948 (1941); 64 Harvard L.Rev. 672 (1951); 36 Cornell L.Quart. 154 (1950); 26 N.Y.U.Law Rev. 205 (1951); 35 Ky.L.Rev. 220, 223 (1947); 30 Col.L.Rev. 651, 668 (1930); 22 Mich.L.Rev. 1, 8 (1923); Helmstetler v. Duke Power Co., 224 N.C. 821, 32 S.E.2d 611 (Sup.Ct.1945); McDade v. West, 80 Ga.App. 481, 56 S.E.2d 299 (Ct.App.1949), are a few examples. See modified view ament wife's recovery of expenses in McDaniel v. Trent Mills, 197 N.C. 342, 148 S.E. 440 (Sup.Ct.1929).

The effort to promote a reconsideration of the subject has been noticeably invigorated by the recent decision in Hitaffer v. Argonne Company, Inc., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366 (D.C.Cir.1950), certiorari denied 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624 (1950), from which the following pertinent quotations are borrowed 'There can be no doubt, therefore, that if a cause of action in the wife for the loss of Consortium from alienation of affections or criminal conversation is to be recognized it must be predicated on a legally protected interest. Now then, may we say that she has a legally protected and hence actionable interest in her Consortium when it is injured from one of these so-called intentional invasions, and yet, when the very same interest is injured by a negligent defendant, deny her a right of action? It does not seem so to us. Such a result would be neither legal nor logical. On the contrary, it has already been held in this jurisdiction that her interest in the marriage relation is co-extensive with that of her husband, and that any interference therewith is a violation of her legal rights. When a legally protected interest of a person has been injured by the wrongful act of another, it is no less actionable because the invasion was negligent rather than intentional or malicious. Some authorities seek to avoid the impact of such logic by holding that in the cases involving intentional invasions to the Consortium the injury to the wife is direct, because the husband having participated with the defendant, cannot join with her and benefit from his own wrong. The Wife therefore has a cause of action. But we are unable to see how the injury to the Consortium is any less direct when the invasion is by a negligent act. Certainly the directness or remoteness of the injury cannot be affected by the fact that in such cases the measure of the wife's damages may be less because of the husband's recovery of the diminished value of his obligation to support his wife. All that it could possibly do is remove from the arena of compensable injuries those already redressed.

'Furthermore, we can conceive of no reasons for denying the wife this right for the reason that in this enlightened day and age they simply do not exist. On the contrary it appears to us that logic, reason and right are in favor of the position we are now taking. The medieval concepts of the marriage relation to which other jurisdictions have reverted in order to reach the results which have been handed to us as evidence of the law have long since ceased to have any meaning. It can hardly be said that a wife has less of an interest in the marriage relation than does the husband or in these modern times that a husband renders services of such a different character to the family and household that they must be...