On appeal from the Supreme Court.
For the plaintiff-appellant, McDermott & Finegold (Harold McDermott, of counsel; M. Raymond McGowan, on the brief).
For the defendant-respondent, Edward R. McGlynn (Joseph Weintraub, on the brief).
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The main question in this case is whether a wife may have an action for personal injuries against the employer of her husband where it appears that her hurt was caused by the husband's negligence done in the course of the performance of his duty to his employer. The trial court, on motion addressed to the complaint, struck it out, directed entry of judgment for the defendant, and this is the plaintiff's appeal from the judgment accordingly entered.
Mrs. Hudson, plaintiff, alleged that she was a passenger in an automobile then operated by her husband and that because of his negligence in handling the car she suffered serious injuries. She claims to have been "a passenger, guest or invitee" of the defendant employer. Defendant moved to strike out the complaint on the ground that the allegation that Mrs. Hudson was an invitee was sham and on the further ground that because she was in fact the wife of the servant, who was in charge of the car, she had no action against the husband or his employer.
The learned trial judge concluded that because of the unity of person of husband and wife due to the marriage bond, whereby either is immune from civil liability at the action of the other, such immunity also extended to the master in the performance of whose business the tort was committed. We are not in accord with this conclusion.
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.
Before determining the issues raised in this case, it is not amiss to trace the statutory changes in this state which alter the common law rule, so far as pertinent to this case. At common law, and in this state up to the year 1906, the rights of married women, under circumstances like these, were greatly restricted. At common law the husband must have joined with his wife in such action for the tort to the wife done before or after marriage. 1 Chit. Pl. *83 (16 th Am. Ed.). And the husband had the right to receive the money for damages; he could release the cause of action; and his contributory negligence would defeat such suit. See Pennsylvania Railroad v. Goodenough, 55 N.J.L. 577, 588. But in 1906 (chapter 248, page 525) the right of a married woman to sue in her own name, without joining her husband therein, for a tort to her person or property was established; and the non-joinder of her husband could not be pleaded to abate such action as theretofore. The statute was amended in 1909 (chapter 138, page 210) to permit the husband to join in such action his claim for any damages sustained in
connection with or growing out of the injury for which his wife brought her action, and further providing that his failure to join should not prevent his right to maintain a separate action therefor. A further statute respecting actions by or against married women was passed in 1912 (chapter 232, page 416), providing that a married woman might sue or be sued without joining her husband in any case whatsoever in which he would be an unnecessary party if he were not her husband. R.S. 37:2-6; 2-9.
The reason behind the rule that husband or wife may not hold the other civilly liable is that such actions would tend to destroy ...