Wolfer v. Oehlers

• Decision Date: 19 April 1950
• Docket Number: No. L--7921,L--7921
• Citation: Wolfer v. Oehlers, 8 N.J.Super. 434, 73 A.2d 95 (N.J. Super. 1950)
• Parties: WOLFER v. OEHLERS et al.
• Court: New Jersey Superior Court

Page 434

8 N.J.Super. 434

73 A.2d 95

WOLFER v. OEHLERS et al.

No. L--7921.

Superior Court of New Jersey Law Division.

April 19, 1950.

Anthony M. Lario, Camden, for the plaintiff.

Boyle, Archer & Greiner, Camden, for the defendants Joseph A. Oehlers and Joseph R. Oehlers.

Carroll, Taylor & Bischoff, Camden, for the defendant, Loretta Carolina Gallagher.

WOODS, J.S.C.

Plaintiff, Rita Wolfer, on or about September 8, 1949, filed a complaint against Joseph A. Oehlers, Joseph R. Oehlers and Loretta Carolina Gallagher, for personal injuries sustained by her while riding in an automobile operated by Joseph R. Oehlers and owned by Joseph A. Oehlers, as a result of an accident between the Oehler's car and an automobile operated by the defendant, Loretta Carolina Gallagher.

Thereafter, on December 31, 1949, the plaintiff, Rita Wolfer, married the defendant, Joseph R. Oehlers, and she is presently his wife. Defendants, Joseph A. Oehlers and Joseph R. Oehlers now move to have the complaint of Rita Wolfer stricken and dismissed as to either or both of them, on the ground that relief cannot be granted upon plaintiff's claim inasmuch as she is now married to the defendant, Joseph R. Oehlers.

In support of the motion counsel for the defendants argues the common law principle and cites 41 C.J.S., Husband and Wife, § 396 p. 880 and other authorities. Among them is the case of Hudson v. Gas Consumers Association, 123 N.J.L. 252, 8 A.2d 337, 338 (E. & A.1939) in which Chief Justice Brogan held: 'It is of course a settled matter that a wife may not have a suit for damages against her husband for his tort. This is the common law rule and no statute has been enacted in this state that disturbs it.'

The question is, whether or not the 'Married Women's Act', R.S. 37:2--9, N.J.S.A., which provides as follows: 'Any married woman may maintain an action in her own name, without joining her husband therein, for all torts committed against her, of 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. * * *'

permits this suit to continue against Joseph A. Oehlers and Joseph R. Oehlers, jointly and severally. The law is very clear, that where a personal tort is committed against her during coverture, the wife cannot maintain an action against her husband. The doctrine of identification still bars a married woman from instituting suit against her husband.

In this instance, however, the tort was alleged to have been committed when Rita Wolfer was single and Joseph R. Oehlers was single and the suit for the recovery of damages as a result of the personal injuries sustained, was instituted prior to their marriage. We are now called upon to determine whether or not Rita Wolfer Oehlers can proceed with her action. As far as we are able to discover there is no case reported in the State of New Jersey covering the facts. In the case of Scales v. Scales, 168 Miss. 439, 151 So. 551, the plaintiff while riding in the defendant's car was injured as the result of a collision. Later she married the defendant and then brought suit for...