Patusco v. Prince Macaroni, Inc.

• Decision Date: 20 November 1967
• Docket Number: No. A--4,A--4
• Citation: 50 N.J. 365,235 A.2d 465
• Parties: Jose L. PATUSCO and Marie Patusco, his wife, Plaintiffs-Respondents, v. PRINCE MACARONI, INC., a corporation, and William Walker, Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 365

50 N.J. 365

235 A.2d 465

Jose L. PATUSCO and Marie Patusco, his wife, Plaintiffs-Respondents, v. PRINCE MACARONI, INC., a corporation, and William Walker Defendants-Appellants.

No. A--4.

Supreme Court of New Jersey.

Argued Sept. 11, 1967.

Decided Nov. 20, 1967.

George L. Sachs, Newark, for appellants.

Sherwin Drobner, Newark, for respondents (Zemel & Kaufman, Newark, attorneys).

The opinion of the court was delivered by

WEINTRAUB, C.J.

This case arose out of a rear-end collision between moving vehicles in a 50-mile zone. Plaintiff husband, whose car was struck in the rear by defendants' truck, said he applied his brakes because traffic ahead slowed to about 30 miles per hour while defendants claimed plaintiff, after trying to enter another lane, returned suddenly to his original path and unnecessarily applied his brakes when another vehicle in that other lane sounded a warning horn. Plaintiff and his wife, a passenger, both claimed personal injuries. The jury found in favor of the wife but against the husband as to both his claim for injuries and his claim Per quod arising out of the injuries to the wife.

The Appellate Division reversed the judgment as to the husband, finding it was error to leave the issue of contributory negligence to the jury, and ordered a retrial as to damages only. As to the wife, the court ordered the judgment increased by the amount of her medical bill if defendant consented thereto, she otherwise to have a new trial as to damages only. We granted defendants' petition for certification. 48 N.J. 136, 224 A.2d 322 (1966).

I.

We granted certification primarily to consider the right of a married woman to recover the cost of her medical treatment and care. Noting that plaintiff was a 'working' wife and that the medical bill was addressed to her, the Appellate Division held the jury should have been told she was entitled to recover for that item if she had 'rendered herself liable' for it. Defendants say this was error because the law imposes upon a husband the duty to provide necessary medical care for his wife and hence the claim must be deemed to be his. In any event, say the defendants, the record does not show affirmatively that the wife agreed to be liable, and therefore it must be found that the husband was the one responsible for the bill by reason of his marital duty of support.

We should stress we are speaking of medical treatment and care of a married woman and not of her husband's claim for loss of consortium. The law recognizes a man's relational interest in his wife and gives him a cause of action against one who negligently invades that interest. Although the husband's consortium claim is thus distinct from the wife's, it will fall if the wife was contributorily negligent. It will also fall if the husband himself was negligent. That the wife's carelessness should bar the husband's claim for loss of consortium is questioned academically, see Orr v. Orr, 36 N.J. 236, 239, 176 A.2d 241, 91 A.L.R.2d 906 (1961), but as to the husband's own negligence it is correct to say upon current notions of liability that the husband ought not to recover if he himself negligently contributed to that loss.

But, we repeat, we are here concerned, not with the husband's Per quod claim respecting consortium, but rather with the claim for the wife's medical. Abstractly considered, the subject is not difficult. An injured person is entitled to be made whole. It should not concern the tortfeasor that someone else is obligated to aid his victim because of a duty assumed by contract or imposed by law. This is the premise of the so-called 'collateral source' rule, which holds a wrongdoer cannot claim the benefit of the rights his victim may have against others by virtue of contract, employment, or other relation. See 22 Am.Jur.2d, Damages, § 206, p. 286 et seq.; 2 Harper and James, Torts, § 25.22, p. 1343 (1956); Rusk v. Jeffries, 110 N.J.L. 307, 164 A. 313 (E. & A. 1933). So here, a tortfeasor ought not to escape responsibility to the wife merely because her husband owes a marital duty to provide for her needs.

Nor should it matter that the husband contributed to her hurt. It must be kept in mind that under the existing policy in our State a wife may not sue her husband as a tortfeasor, and this being so, the husband cannot protect her from his negligence through conventional liability insurance. To visit any part of the tort liability upon the husband is to run afoul of this policy. ¹ More importantly, to do so would in practical effect leave the loss with the wife. That would be the result if the husband were impecunious, and, realistically, that would equally be the result if the husband could pay the bill since in most situations the wife's total economic experience is hinged firmly to his. Indeed, today, with the high cost of medical and hospital attention, the collectibility of those items frequently depends upon the outcome of the tort case itself, so that, if the husband's contributory negligence stands in the way, the wife's bill may well remain unpaid.

The difficulty is essentially historical. At the common law the husband controlled his wife's claim for injuries in its entirety and was entitled to receive payment. It was therefore thought just that his contributory negligence should bar her claim in all its aspects. Pennsylvania R.R. Co. v. Goodenough, 55 N.J.L. 577, 28 A. 3 (E. & A. 1893). The married women's acts were adopted to relieve women of the disabilities of coverture. With respect to tort claims, our Married Women's Act provides, N.J.S.A. 37:2--9:

'Any married woman may maintain an action in her own name, without joining her husband therein, for all torts committed against her, or her separate property, in the same manner as she lawfully might if a feme sole, and the nonjoinder of the husband shall not be pleaded in any such action. In any such action the husband may join his claim for any damages he may have sustained in connection with or growing out of the injury for which his wife brings her action; but his failure to join shall not prevent him from maintaining a separate action for such damages.'

The first sentence expresses a purpose to give a married woman the same protection the law accords a feme sole. The second sentence no doubt was intended to preserve the husband's claim for injury to his relational interest (his claim for loss of consortium), thus avoiding the inference drawn in some States that the married women's act was intended to destroy that claim. See annotations, 21 A.L.R. 1517, 1527 (1922); 133 A.L.R. 1156, 1162 (1941).

The objective of the statute to give equality to the married woman was stated soon after its enactment. In Sims v. Sims, 79 N.J.L. 577, 582, 76 A. 1063, 1065 (E. & A. 1910), a wife was permitted to sue for alienation of affections, the court saying:

'* * * Keeping in mind the old law and the existing mischief, it becomes manifest that the legislative intent which inspired this remedial measure could have been only a desire to confer upon the married woman that equality of remedy as an independent suitor, which would enable her to vindicate her right In personam for a tort committed against her, and thus remedy the inequality to which she was subjected by the common law.'

Upon this view of the statute we recently held the wife's consortium interest in her husband is entitled to the same protection from negligent injury which the common law accorded the husband's like interest in the wife. Ekalo v. Constructive Service Corp. of America, 46 N.J. 82, 215 A.2d 1 (1965).

Upon the more immediate question whether the husband's negligence should bar the wife's claim against a third party, Peskowitz v. Lawrence F. Kramer, Inc., 105 N.J.L. 415, 418, 144 A. 604, 605 (E. & A. 1929), found our Married Women's Act relieved the wife of his negligence:

'In other words, so far as the enforcement of her right is concerned against third persons to redress wrong committed against her, she stands in the same relation to her husband as to a stranger.'

Despite this language, Peskowitz did not settle the issue before us, for it appears the husband sued for the sums he expended for the wife's medical care, and presumably he was defeated in that respect at the trial by his contributory fault. Neither, however, appealed, and hence there was no discussion of the question whether the wife or the husband should recover notwithstanding his negligence.

Thereafter in Kimpel v. Moon, 113 N.J.L. 220, 222, 174 A. 209, 210 (Sup.Ct. 1934), the former Supreme Court expressly held a husband's contributory negligence barred his claim for reimbursement for medical expenses he incurred for his wife, saying:

,'* * * A husband who sues for loss of consortium sues, not in his wife's right, but in his own; likewise as to money disbursements incurred by him. His wife never had the right to those recoveries.'

Apart from community-property jurisdictions where other considerations cut across the subject, there are surprisingly few States which have dealt expressly with the question whether a negligent husband may recover for medical expenditures made by him on behalf of his wife. In those States, as in Kimpel v. Moon, it was held the negligent husband could not recover. Kimball v. Bauckman, 131 Me. 14, 158 A. 694 (Sup.Jud.Ct.1932); Miller v. Rankin, 10 A.D.2d 695, 198 N.Y.S.2d 1 (1st Dept. 1960); Marton v. McCasland, 16 A.D.2d 781, 228 N.Y.S.2d 756 (1st Dept. 1962).

We emphasize that Kimpel v. Moon did not say a wife has no claim against a tortfeasor for medical treatment and care. It dealt only with a recovery as to expenditures made by the husband. Elsewhere many courts have held a wife may recover for medical if she made the expenditure or pledged her credit. Annotation, 66 A.L.R. 1189, 1194 (1930); McCormick, Damages, § 92(2), p. 330 (1935); see the survey in Boland v. Morrill, 275 Minn. 496, 148 N.W.2d 143 (Sup.Ct. 1967). At least one court has held...