On appeal from Superior Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Wachenfeld, J.
[4 NJ Page 85] Josephine Blackman filed her complaint in a civil action in the court below alleging the defendants Iles, Cunliffe and Jadoun carnally knew and debauched her daughter, a child fourteen years of age, at diverse times and places and she was advised that by reason thereof she had separate causes of action against them for damages "for loss
of services, shame, humiliation and nervous shock occasioned by and as a result of the said defendants and each of them, having carnally known and debauched Lois J. Schaufler, the daughter and servant of said plaintiff * * *."
She further asserts doubt has arisen by reason of a statute of the State of New Jersey, i.e., R.S. 2:39A-1 to 2:39A-9, as to whether this enactment prohibits her from bringing such action in the courts of this State and that she cannot safely institute these causes without rendering herself liable to criminal prosecution under the terms thereof in the event the statute is ultimately construed to prohibit the institution of said claims. She therefore petitions the court to interpret the statute and to construe it as not forbidding her to file her complaint and issue process to recover damages for the loss of services of her daughter and servant.
The Attorney General of the State of New Jersey, although made a party to the action and served with process, filed no answer. The other defendants by their answers deny they are guilty of the charges alleged against them, challenge the right of the plaintiff to invoke the aid of the Declaratory Judgments Act and assert the "Heart Balm Act" is applicable and constitutional, having been so declared by the courts of this State. The plaintiff's motion for judgment on the pleadings was denied and the trial court dismissed the complaint, holding the action was barred by the provisions of the "Heart Balm Act." The appeal to the Appellate Division of the Superior Court was certified here on our own motion.
The inquiry is, first, whether the complaint is sufficient to sustain a declaratory judgment under R.S. 2:26-66 et seq. and, secondly, whether the so-called "Heart Balm Act," R.S. 2:39A-1 to 9, forbids the plaintiff from having and maintaining the action against the several defendants for the loss of services of her infant daughter as a result of the debauchment by said defendants. The constitutionality of the act is also questioned but this issue will not be encountered unless the second inquiry is resolved against the plaintiff.
The defendants' answers challenged the complaint as insufficient to sustain a declaratory judgment. The issue thus
raised must be decided here for the first time since the complaint was dismissed below on other grounds and the question of its sufficiency establishing a justiciable demand for judgment under the Declaratory Judgments Act was not passed upon.
The complaint is not predicated upon a moot or academic proposition but specifically sets forth the cause of action existing against the defendants for the loss of services of the plaintiff's minor daughter and alleges the hazards she may encounter by instituting such an action, which might subject her and her attorneys to indictment and the severe penalties provided in R.S. 2:39A-7:
"Any person who shall violate any of the provisions of this chapter shall be guilty of a misdemeanor which shall be punishable by a fine of not less than one thousand dollars nor more than five thousand dollars or by imprisonment for a term of not less than one year nor more than five years or by both such fine and imprisonment in the discretion of the court."
Each of the defendants by his answer denies guilt and the issue so framed admittedly presents a jury question which cannot be and is not intended to be adjudicated in this action; it can only be determined if and when the plaintiff institutes her contemplated action against the defendants to recover damages.
R.S. 2:26-69 provides as follows:
"A person interested * * * or whose rights, status or other legal relations are affected by a statute * * * may have determined any question of construction or validity arising under the * * * statute * * * and obtain a ...