Weinberg v. Underwood

• Citation: 101 N.J.Super. 448,244 A.2d 538
• Decision Date: 17 June 1968
• Docket Number: No. A--10790,A--10790
• Parties: Louis WEINBERG, Sylvia Weinberg, and Barbara A. Weinberg, Plaintiffs, v. Thomas J. UNDERWOOD and Kenneth T. Underwood, an infant by his Guardian ad Litem, Defendants.
• Court: New Jersey County Court

Page 448

101 N.J.Super. 448

244 A.2d 538

Louis WEINBERG, Sylvia Weinberg, and Barbara A. Weinberg, Plaintiffs, v. Thomas J. UNDERWOOD and Kenneth T. Underwood, an infant by

his Guardian ad Litem, Defendants.

No. A--10790.

Essex County Court, Law Division, New Jersey.

June 17, 1968.

Alan Kraut, Jersey City, for plaintiffs.

Arnold G. Shurkin, Newark, for defendants.

YANCEY, J.C.C.

On May 13, 1967 a car was allegedly at a standstill behind a double-parked car on Chancellor Avenue, Irvington, when it was struck from behind by a second car. Louis and Sylvia Weinberg, passengers in the first car, and their daughter Barbara Weinberg, driver and owner of the first car, instituted suit to recover damages from defendant brothers, one of whom drove the second car and the other of whom owned it. Defendants in their answer denied liability, claimed contributory negligence by plaintiffs and counterclaimed against plaintiff Barbara Weinberg for contribution for a pro rata share of any judgment recovered by her parents, Louis and Sylvia Weinberg. Plaintiffs bring this motion to strike the counterclaim for contribution.

I

Plaintiffs point out in their brief that 'even though the plaintiff owner and operator is over 21 years of age and self-supporting, she is still a member of the same household with her parents and is subject to some extent to discipline of her parents and is living in harmony with them.' Thus they contend that the case law which bars tort actions between unemancipated children and their parents should apply to the counterclaim. Hastings v. Hastings, 33 N.J. 247, 163 A.2d 147 (1960); Franco v. Davis, 51 N.J. 237, 239 A.2d 1 (1968).

However, the fundamental rationale underpinning those decisions was the promotion of family unity. New Jersey, like the rest of our nation, fosters the raising of its young in family units. Thus a bar to tort actions between unemancipated children and their parents is in direct support of this public policy because it protects the respect and discipline, and thus the harmony, of the family until the child is legally capable of, or is in fact, fending for itself.

However, once the child is legally emancipated the State has no strong interest in maintaining the harmony of the family unit. It is commendable that plaintiffs are still a close-knit family, but it is not necessary for the public welfare. This is especially so where, as here, the child is 30 years old.

As did Judge Pindar in Bush v. Bush, 95 N.J.Super. 368, 375, 231 A.2d 245 (Law Div. 1967), this Court recognizes the common-law right of an injured party, where such injury is compensable, to maintain an action to recover damages. Immunity from suit is in derogation of this common-law principle and must therefore be strictly construed. In addition, as Justice Jacobs noted in his dissent in the 4--3 decision of Franco v. Davis, supra 51 N.J. at p. 243, 239 A.2d 1, 'even in states where the immunity is purportedly still in force, the courts have, as Prosser puts it, 'whittled it down' so as to restrict the hardships which inevitably accompany it. See Prosser, Torts, § 116, at p. 887 (3d ed. 1964).'

In view of such circumstances, and in the absence of any compelling reason from the facts of this case, this Court declines to extend immunity from tort liability to actions between parents and emancipated children.

II

Plaintiffs do indicate in their brief why, besides protection of the family unit, they ask this Court to take such action. They state:

'This Motion to strike the Counterclaim for Contribution is made necessary by reason of the recent directive of the Supreme Court forbidding an attorney to represent the owner and operator of a vehicle and the passengers therein where a Counterclaim for Contribution has been filed by the defendant against the owner and operator. A hardship will result to the plaintiffs and to their attorney in the event this directive is obeyed as it necessitates the engagement of two other attorneys, one to represent the plaintiff owner and operator, and the other to represent her parent passengers. The work of the attorney and the expense of investigation, discovery and institution of suit would all be lost upon compliance with this unnecessary directive.'

First of all, it should be pointed out that hardships also will result to plaintiffs and their attorney in the event this directive ¹ is not obeyed.

Secondly, it is this Court's opinion--although admittedly not relevant to the promulgation of the directive--that the directive is both necessary and fair. It merely recognizes the old adage that one man cannot serve two masters at the same time, especially when they are moving in opposite directions. However, if he did serve both before they began seeking polarized objectives, he cannot go with one if he has knowledge gained through his position as agent to the other that may be detrimental to the other.

As the Supreme Court noted in In re Braun, 49 N.J. 16, 18, 227 A.2d 506 (1967), the intent of Canons 6 and 37 of the American Bar Association Canons of Professional Ethics is violated whenever the conduct of an attorney raises the Possibility that he has or may use the confidences of one client for the benefit of another. In In re Blatt, 42 N.J. 522, 201 A.2d 715 (1964), the court stated:

'It is self-evident that where a member of the bar represents a litigant in a cause, he should not thereafter represent the opposing party in any step in the proceedings in or...