McGeehan, Bigelow and Jayne. The opinion of the court was delivered by Jayne, J.A.D. Bigelow, J.A.D. (concurring).
A mishap occurred on January 11, 1949 in the City of Paterson in which the plaintiff Carmin Larocca sustained bodily injuries.
The associated circumstances may be concisely imparted. In the erection of an addition to a building of the American Textile Company at Oliver and Jersey Streets, Timber Structures, Inc., the employer of the plaintiff Carmin Larocca, was contractually obligated to fabricate certain trusses 67
feet in length and approximately four tons each in weight and to set each in place upon upright steel columns 15 feet in height. A motor-powered crane having the capacity to elevate and suitably locate the trusses on the columns would be an efficient hoisting instrument, but Timber Structures, Inc. did not own one of the required type.
In this exigency Timber Structures, Inc. procured from the defendant Ench the use of the latter's crane and the services of the operator DeWitt. Some of the details and legally significant features of that engagement will be subsequently discussed.
It was in the process of raising one of the trusses by means of the crane that the truss was noticed to be somewhat out of level and Schmidt, the foreman in the employ of Timber Structures, Inc., directed the plaintiff Carmin Larocca and one Marrino to seat themselves on one side of the suspended truss to equalize its desirable balance. There is testimony that when the truss was elevated to a height of about 15 feet, the operator of the crane permitted the load to drop slightly and its descent was arrested by a sudden jerk, whereupon a piece of cable supplied by Timber Structures, Inc., which encircled the truss, broke and Carmin Larocca fell to the ground.
The foregoing introductory disclosure of the general background of the ensuing litigation must be supplemented by the information that the present action was instituted by Carmin Larocca and his wife, Helen Larocca, as plaintiffs against Rae Construction Co., Inc., American Chain and Cable Company, Inc., Richard A. Ench, the owner of the crane, and Charles DeWitt, the operator, as defendants. The alleged causes of action against Rae Construction Co., Inc., and against American Chain and Cable Company, Inc., were voluntarily discontinued. The action on behalf of both plaintiffs was accordingly prosecuted at the trial against the defendants Ench and DeWitt.
The plaintiff Carmin Larocca sought the recovery from those defendants of compensatory damages for the bodily injuries
and incidental losses which he sustained in the mishap. His wife, Helen, demanded damages for the consequential deprivation "of her husband's aid, assistance, society and * * * consortium."
The trial resulted in the entry of a final judgment of involuntary dismissal of the alleged cause of action of Helen Larocca in favor of both defendants; an involuntary dismissal of the alleged cause of action of Carmin Larocca in favor of the defendant Ench and a voluntary dismissal of his action against the defendant DeWitt. This appeal is of course addressed to the judgments of involuntary dismissal.
The appeal from the dismissal of the alleged cause of action of Mrs. Larocca is evidently intended to project anew the question whether in this jurisdiction a wife can now maintain an action at law against a third party for the recovery of damages for the deprivation of the comfort and society of her husband, commonly called consortium, in consequence of bodily injuries sustained by her husband through the negligent act or omission, free from malice and intentional wrongdoing of the third party. It was resolved by Justice Bergen in 1921 that such an action was not maintainable. Tobiassen v. Polley , 96 N.J.L. 66 (Sup. Ct. 1921). Contrast, Sims v. Sims , 79 N.J.L. 577 ...