Tharp v. Shannon

• Decision Date: 26 May 1967
• Docket Number: No. L--25433,L--25433
• Citation: 230 A.2d 902,95 N.J.Super. 298
• Parties: Margaret THARP, Administratrix ad Prosequendum of the Estate of Margaret M. Shannon, Plaintiff, v. Frank M. SHANNON and Mario C. Malatesta, Defendants.
• Court: New Jersey Superior Court

Page 298

95 N.J.Super. 298

230 A.2d 902

Margaret THARP, Administratrix ad Prosequendum of the Estate of Margaret M. Shannon, Plaintiff, v. Frank M. SHANNON and Mario C. Malatesta, Defendants.

No. L--25433.

Superior Court of New Jersey Law Division.

May 26, 1967.

Charles E. Starkey, Brick Town, for plaintiff (Starkey & Turnbach, Brick Town, attorneys).

Robert E. Combs, Toms River, for defendant Frank M. Shannon (Haines, Schuman & Butz, Toms River, attorneys).

MUCCIFORI, J.C.C. (temporarily assigned).

This litigation, presently before the court on defendant's motion for summary judgment, concerns the controversial problem of intrafamily tort actions as applied to suits commenced under the Survivor's Act, N.J.S. 2A:15--3, N.J.S.A., and the Wrongful Death Act, N.J.S. 2A:31--1, N.J.S.A. There is no recorded appellate decision in New Jersey which deals with the precise legal questions presented by the motion.

The factual allegations in the complaint pertinent to the decision of this motion are as follows:

On May 6, 1964 defendant Frank Shannon operated an automobile along Route 70 in Manchester Township, Ocean County, New Jersey. His wife Margaret was a passenger. The complaint alleges that as a result of defendant's negligence a collision occurred in which Mrs. Shannon sustained serious injuries from which she subsequently died. Margaret Tharp, decedent's daughter and administratrix ad prosequendum, instituted this suit for the benefit of herself and decedent's son Frank. At the time of the accident decedent was living with her husband and their 17-year-old son in Brick Town, New Jersey. Margaret Tharp did not live with her parents but resided with her husband and her two children. The papers on file indicate that in May 1964 Frank Shannon was an unemancipated minor depending upon his parents for his sole means of support. This fact was not refuted by plaintiff at the hearing and we must, therefore, accept it as an uncontroverted fact.

The complaint is also directed against one Mario E. Malatesta, driver of the vehicle which came into collision with defendant's vehicle, but we are not here concerned with that aspect of the litigation. There appears to be a technical deficiency in the complaint in that the general administrator has not sued under N.J.S. 2:15--3, N.J.S.A. The court, however, will deal with the case as if it had been properly instituted since the technical deficiency could be cured by a motion to amend.

In his brief and at oral argument, defendant contended that (1) the interspousal immunity doctrine precludes the maintenance of this suit under both the Survivor's Act and the Wrongful Death Act; (2) no suit could be maintained for the benefit of the decedent's son because of the intrafamily immunity doctrine, which precludes suits by an unemancipated child against a parent for a tort, and (3) the daughter's claim for dependency was so insignificant as to be incapable of supporting a claim. Reasoning beyond this point, defendant argued that since the statute, N.J.S. 2A:31--4, N.J.S.A., gives any recovery to a dependent to the exclusion of all others, the daughter could not recover since her brother was a dependent, even though he was incapable of recovering damages by reason of the intrafamily immunity doctrine. Because of the view taken by the court on the first two arguments presented, it is unnecessary to discuss the defendant's third point.

The recent cases of Long v. Landy, 35 N.J. 44, 171 A.2d 1 (1961), and Heyman v. Gordon, 40 N.J. 52, 190 A.2d 670 (1963), although not deciding the precise legal issues presented, have been instrumental in framing the court's disposition of the motion. Though there has been disagreement and voluminous academic treatment and discussion on the view presently taken by our courts with regard to intrafamily immunities, the court has followed the majority opinion as reflected in Hastings v. Hastings, 33 N.J. 247, 163 A.2d 147 (1960) and Heyman v. Gordon, supra, and the authorities cited therein, to dispose of the issues presented.

Plaintiff, in opposing the motion, suggested that the Supreme Court may change its majority view if a change in the personnel of the court is effected. However, it is not the prerogative of this court to speculate as to the effect of a change of attitude in that court or attempt to second guess in which direction the court might lean in the future. This court must adhere strictly to the principles of stare decisis and give the same degree of deference to the Supreme Court decisions as does our Appellate Division. 'Respondents' contentions run full-square into the decision of the Court of Errors and Appeals in Teets v. Hahn (supra, 104 N.J.L. 357, 140 A. 427), and we are bound by the opinion of our State's then highest court. As judges of the Appellate Division it is our conception that our duty is encompassed by the obligation to decide what is the law to be applied to a given case on appeal and not what we feel the law should be.' Nixon v. Lawhon, 32 N.J.Super. 351, 108 A.2d 480 (App.Div.1954) (citations omitted)

I

Defendant contends that the language of both the Survivor's Act and the Wrongful Death Act precludes a representative of decedent from suing under circumstances where decedent could not have sued the tortfeasor had she lived. The court is presently disposed to accept that view. The statutory language relied upon by defendant is italicized below:

N.J.S. 2A:15--3, N.J.S.A.

'Actions which survive, torts to decedent

Executors and administrators may have an action for any trespass done to the person or property, real or personal, of their testator or intestate against the trespasser, and Recover their damages as their testator or intestate would have had if he was living.'

N.J.S. 2A:31--1, N.J.S.A.

'When action lies

When the death of a person is caused by a wrongful act, neglect or default, Such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances amounting in law to a crime.'

N.J.S.A. 37:2--5.

'Right of husband and wife to contract with or sue each other

Nothing in this chapter contained shall enable a husband or wife to contract with or to sue each other, except as heretofore, and except as authorized by this chapter.'

The case of Long v. Landy, supra, relied upon by plaintiff, did not decide the precise question involved in this suit. Landy was decided under different statutory authority, namely, N.J.S. 2A:15--4, N.J.S.A., and was instituted by a surviving spouse against the deceased tortfeasor spouse. A similar factual situation between a child and a deceased parent was decided in Palcsey v. Tepper, 71 N.J.Super. 294, 176 A.2d 818 (Law Div.1962). Justice Hall in Heyman v. Gordon, supra, made particular note of the fact that the Landy case did not present the same issue as was decided by the court in Heyman. A careful reading of the opinion in Landy indicates that the court expressly intended to limit its rationale to particular instances, i.e., where suit was instituted against a Deceased tortfeasor spouse. 'It is self-evident that the ground for the special fear of collusion between spouses is eliminated upon the death of the tortfeasor.' Long v. Landy, supra, 34 N.J. at p. 53, 171 A.2d at p. 6. This view was originally expressed in Palcsey v. Tepper, supra, wherein the court gave recognition to the rationale adopted by our sister state of Pennsylvania in the case of Parks v. Parks, 390 Pa. 287, 135 A.2d 65 (Sup.Ct.1957):

'It is obvious that the Pennsylvania Supreme Court makes a sharp distinction between a suit against a living parent and one against the estate of a deceased parent, denying the first and permitting the latter.' (71 N.J.Super., at pp. 297--298, 176 A.2d p. 820).

In Heyman v. Gordon, supra, the Supreme Court undertook review of the propriety of the trial court's grant of a motion for summary judgment which decided that a suit brought under the Wrongful Death Act by an administrator against a surviving tortfeasor spouse could not be maintained because the spouse could not have maintained the action had she lived. The second ground upon which the trial court relied was that the substance of the action was a claim for damages on behalf of an unemancipated child. The Supreme Court, in affirming the trial court's action, chose to rely upon the latter ground. However, in discussing the first the majority of the Supreme Court clearly indicated their approval of the reasoning adopted by the trial court with respect thereto. The court referred to Damiano v. Damiano, 6 N.J.Misc. 849, 143 A. 3 (Cir.Ct.1928), which squarely met the issue presented here, finding in favor of defendant. Furthermore, the Heyman court cited with apparent approval the case of Levlock v. Spanos, 101 N.H. 22, 131 A.2d 319 (Sup.Ct.1957), which held that lifetime immunities bar the death action. This court is satisfied that Long v. Landy should be applied only in situations where the tortfeasor spouse is deceased.

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