Tobiassen v. Polley

• Citation: 114 A. 153
• Parties: TOBIASSEN v. POLLEY et al.
• Decision Date: 07 June 1921
• Court: United States State Supreme Court (New Jersey)

114 A. 153

TOBIASSEN

v. POLLEY et al.

Supreme Court of New Jersey.

June 7, 1921.

(Syllabus by the Court.)

Action by Maren Tobiassen against Henry W. Polley and others. Motion to strike out plaintiff's complaint granted.

Argued before Justice BERGEN, sitting alone pursuant to the statute.

Edward M. & Runyon Colie, of Newark, for the motion.

Francis A. Gordon, of Elizabeth, opposed.

BERGEN, J. The complaint in this cause avers that plaintiff is the wife of Thor Tobiassen; that the servant of the defendant, while operating an automobile in the business of the defendant, did not use due care, but recklessly and carelessly, without proper control, ran it against her husband, who was, without fault or negligence on his part, thereby permanently injured in body and also deprived of his reason and mind, because of which the plaintiff has lost the benefit of his earning capacity, support, care, protection, comfort, society, confidence, and aid. The complaint is similar in form to one applicable in a suit by a husband against a third party for an assault on his wife. The defendant moves to strike out the complaint upon the ground that a wife cannot maintain an action at law against a third party for injuries to her husband based alone upon a negligent act free from malice, to recover for loss of earning capacity, and deprivation of the comfort and society of her husband, commonly called the right of consortium.

No objection to the form of the complaint was raised on the argument, and it was assumed to be sufficient if the wife could maintain the action on the facts stated. It was conceded that no such action would lie at common law, and the plaintiff relies on our statute P. L. 1906, p. 525, entitled "An act for the protection and enforcement of the rights of married women," which as amended P. L. 1909, p. 210; C. S. p. 3236, enacts that—

"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; provided, however, that the husband of such married woman may join in such action his claim for any damages he may have sustained in connection with or growing out of the injury for which the wife brings her action, but his failure to join shall not prevent his right to maintain a separate action therefor."

The proviso in the act of 1909 is an amendment to the act of 1906, and its plain purpose is to reserve to the husband his right of action for damages he has suffered, which in the present case includes his loss of earning power, and his recovery would inure to the benefit of his wife in that particular, and consequently she could not be damaged in her separate property by loss resulting from the depreciation of his earning power. If the wife be allowed to recover on that part of the complaint rested on the loss of the earning capacity of her husband, he could bring his action and recover for the same element of damage, and thus there would be two separate recoveries for the loss of the earning power of the husband, and this could not...