Scott v. Richstein

• Decision Date: 03 July 1974
• Citation: 129 N.J.Super. 516,324 A.2d 106
• Parties: Marie B. SCOTT, Plaintiff, v. Abe RICHSTEIN, Defendant.
• Court: New Jersey Superior Court

Page 516

129 N.J.Super. 516

324 A.2d 106

Marie B. SCOTT, Plaintiff, v. Abe RICHSTEIN, Defendant.

Superior Court of New Jersey,

Law Division.

July 3, 1974.

Barry A. Knopf, Saddle Brook, for plaintiff (Cohn & Lifland, Saddle Brook, attorneys; Peter S. Pearlman, Saddle Brook, on the brief).

Edward M. Gurry, South Orange, for defendant (Gurry & Conlan, South Orange, attorneys; Thomas P. McHugh, South Orange, on the brief).

JOELSON, A.J.S.C.

This is a motion brought by defendant to dismiss a complaint by reason of R. 4:28--3(b).

Plaintiff and her husband were involved in an automobile accident with defendant. The husband, who was a passenger in a care driven by his wife, brought suit for personal injuries against defendant. During the pendency of that action he died, and his wife ultimately settled the case as executrix of her husband's estate. Thereafter, she brought this action seeking damages for her own personal injuries allegedly resulting from the accident.

Defendant contends that plaintiff's action is barred by R. 4:28--3(b) which provides:

All claims by spouses for physical injury and consortium losses resulting from the same course of negligent conduct of others shall be joined in a single action and shall be deemed to have been waived if not so joined unless the court, for good cause shown, otherwise orders.

A cursory reading of R. 4:28--3(b) without reference to its judicial history would justify the construction placed upon it by defendant. However, it is the opinion of the court that the rule does not bar this cause of action.

Central to a discussion of this issue is Ekalo v. Constructive Service Corp. of America, 46 N.J. 82, 215 A.2d 1 (1965). That case established the right of a wife to sue for loss of consortium, and the opinion states:

In recognizing a wife's claim for loss of consortium, we may, of course, condition it upon joinder with her husband's claim; in any event, our rule-making powers are clearly comprehensive enough to support a new rule requirement that all claims by husbands and wives for physical injuries and consortium losses resulting from negligent conduct by others must be joined so that they may be tried before a single jury or before a single judge if a jury be waived.

Subsequent to the decision in Ekalo, R. 4:28--3(b) was adopted. Echoing as it does the very language of Ekalo quoted above, the rule must be regarded as an implementation of the decision, which was limited to the desirability of joining an...