Defendant moves to strike counts 1, 2, 4, 5, and 7 of the complaint filed by plaintiffs, husband and wife, against defendant for libel and slander.
In substance, count 1 charges the libel of plaintiff husband for "dishonesty," i.e. , a charge libelous per se. Count 2 charges the slander of plaintiff husband, for being "a thief," i.e. , actionable per se. Count 3 for malicious prosecution of the husband is not attacked. Count 4 is a suit by the wife because of the libel in count 1 against the husband, alleging special damage to her therefrom, in that thereby she was "brought into public scandal"; that her "former associates * * * have refused * * * to have any transactions" with her; that she has thereby been deprived "of the society and comfort of her husband," and has been "deprived of financial support from her said husband." Count 5 seeks for the wife the same damages as in count 4, because of the slander of her husband in count 2. Count 6 is to be amended by counsel. In count 7, the wife sues for a separate slander of herself as "a thief," i.e. , a charge actionable per se.
The bases for the attack on counts 1, 2, and 7 are insubstantial and will not be discussed.
The prime question is as to the validity of counts 4 and 5, where the wife sues for damages caused her by the libel and
slander of her husband. Defendant, relying on Tobiassen v. Polley , 96 N.J.L. 66 (Sup. Ct. 1921), claims the wife has no such right of action. Plaintiff relies to the contrary on Sims v. Sims , 79 N.J.L. 577 (E. & A. 1910); Commercial Carriers v. Small , 277 Ky. 189, 126 S.W. 2 d 143 (Court of Appeals , 1939); and McDade v. West , 80 Ga. App. 481, 56 S.E. 2 d 299 (Court of Appeals , 1949).
The Tobiassen case is not one of libel or slander, but a negligence case. The court there is at great care to distinguish the Sims case. The Sims case deals with alienation of affections, i.e. , an intentional act, as is libel and slander, as distinguished from a negligent act. The Sims decision, parenthetically, reversed a contrary decision of the old Supreme Court, which held the wife had no such cause of action, in line with the decision in the Tobiassen case. Indeed, the strong attack made by the court in Hitaffer v. Argonne Co. , 183 F.2d 811 (Court of Appeals , 1950) on the rationale of the Tobiassen case, makes interesting reading. See to the same effect Prosser, Torts, p. 948; Harper, Torts, p. 566; 36 Cornell Law Quarterly, pp. 148, 155.
In the Tobiassen case, the court says "a wife cannot maintain an action in her own name for the loss of her husband's services, including the right of consortium, resulting from personal injury to him caused by the negligence of a stranger, and not the result of a malicious interference with the society, companionship and right of consortium of her husband." (Italics ours.) The court there concludes that the Married Women's Property Act does not give the wife a cause of action for "a tort against her husband, devoid of any malice towards the wife."
This careful limitation of the holding in the Tobiassen case to a cause of action for negligence, and its inapplicability to a situation where there was "a malicious interference" with her consortium with her husband, was clearly made requisite by the holding the Sims case. For, in the Sims case our Court of Errors and Appeals considered the entire background, both at common law and under the Married Women's
Property Act, of the situation of husband and wife in regard to torts. The court called attention to the fact that "In its early stages the common law notoriously enveloped the identity of the wife and all her possessions in the personality of the husband." P. 579. The court found "that the right of consortium was recognized by the common law as an existing right in the married woman, however, but incapable of enforcement owing to the common law doctrine of identity of personality," quoting Blackstone to that effect. Thus, it was held that the "loss of consortium was an injury to the wife, and that its enforcement was her right * * * from which it follows that if at any time the legislature should remove the common law impediment as to remedy, (as by the Married Women's Property Act, L. 1906, c. 248, sec. 1, p. 525, as am. by L. 1909, c. 138, sec. 1, p. 210, R.S. 37:2-9), the right existing is thus made capable of enforcement under the remedial code." Further, referring to the Married Women's Property Act, our highest court says, "That this act was intended to confer the power upon a married woman to protect and enforce her rights, is the specific announcement contained in its title. * * * the legislative intent which ...