On cross-motions for summary judgment under Rule 3:56.
[25 NJSuper Page 98] Plaintiff, having obtained a judgment in the New York Supreme Court against Joseph Clement, assured of the defendant insurance company, for damages for personal injuries sustained in an accident within the policy coverage, sues the defendant here under a provision of the policy purportedly accommodating such direct suit.*fn1 The
amount of that judgment was well within the policy limits. Defendant moved to attack the complaint under Rule 3:12-2(5), and by stipulation answer has been filed and its validity questioned by an appropriate motion, with the result that the whole issue as to the effect of the pleaded case is submitted summarily to the court as on cross-motions under Rule 3:56.
Thus settled, the pleaded case establishes that plaintiff is now the wife of Joseph Clement, the defendant's assured; that on March 19, 1949, while she was a resident of New York State and before she was his wife, she was riding in New York as a passenger in his automobile and was injured in an accident; that she duly sued and served Clement, who was then and is now a resident of New Jersey, in an action in the Supreme Court of New York, County of New York; that during the pendency of such action and before it came to trial, she married Clement; that defendant had insured Clement for public liability, including claims generally equivalent to the one reflected in the New York Supreme Court action; that defendant, by its attorney, defended Clement in the New York action, but foreseeing the availability of defenses arising from the newly created marital status, it offered and Clement accepted such defense under a sufficient "reservation of rights."*fn2 The pleadings further
evidence that judgment was duly entered after trial in favor of plaintiff and against Clement in the New York action on May 6, 1952; that no appeal was taken from such judgment and none is now possible; that such New York court had jurisdiction of the subject matter and of the person of Clement, the defendant therein, and no fraud was involved in its acquiring same; that in New York, a litigation between husband and wife in a law action such as involved in that judgment was proper, no rule of law there preventing such adversary litigant conflict between husband and wife; that the judgment, which, as stated, is within the policy limits, remains unpaid; that plaintiff now resides with her husband, Clement, in New Jersey; that no execution was issued in New York on the judgment obtained there; that no separate action on the judgment was undertaken against Clement in New Jersey, and that Clement is neither bankrupt nor insolvent.
A principal ground of defendant's motion to dismiss the action is the New Jersey rule of public policy preventing an action at law by wife against husband, it being suggested that the instant suit violates that principle by indirection and thus strikes at the public policy which for very many years has frowned in this State upon such litigation. On this ground, I determine that the established New Jersey rule does not prevent the instant suit. That rule, although based upon public policy, is utilitarian in nature. It exists in protection of the solidarity of the marital relationship. It thus extinguishes an antenuptial cause of action for damages for tortious injury to the person. Wolfer v. Oehlers , 8 N.J. Super. 434 (Law Div. 1950). Its utility in the securing of domestic peace outweighs, in modern concept, its equivalent basis in former times in the fiction of joinder of legal identity incident to the marriage bond. 1 Blackstone's Commentaries 442;*fn3 Lombard v. Morse , 155 Mass. 136, 29
N.E. 205, 14 L.R.A. 273 (Sup. Jud. Ct. 1891). Although it has been held recently that such fictional unity has not dissipated, through statutory or other changes, to the extent of validating contracts of spouses inter se at law, it is to be noted that such deference to the common law rule finds its real basis in the utilitarian necessity of the rule itself. Bendler v. Bendler , 3 N.J. 161 (1949). In other words, the disability is more than an incapacity to sue; it is a mutual disability to contract with each other, the law perceiving the incompatibility of such bargaining with the unique implications of the marriage relationship. In this respect the issue considered here is readily distinguishable from that dealt with in Bendler v. Bendler, supra , where the asserted liability (under the Workmen's Compensation Act) depended upon a contractual relationship of employment, impossible of legal existence under the mutual disability at the common law of husband and wife to contract inter se and to sue each other. And so, while that opinion recognized the ground of the mutual disability in the fictional unity of person and interest in married persons, it did not fail to emphasize the primary concern of society in the integrity of the marriage relation as the key and basis of that mutual disability. Bendler v. Bendler, supra , at p. 172.
Indeed, our former Court of Errors and Appeals has held that "The reason behind the rule that husband or wife may not hold the other civilly liable is that such actions would tend to destroy peace in the family relationship." Hudson v. Gas Consumers' Association , 123 N.J.L. 252 (E. & A. 1939). But in the extinguishing by marriage of an antenuptial cause of action for tort, we have no concern with any primary mutual disability to contract inter se , but rather inquire into the scope of the very disability to sue. In cases of immunity from suit springing from this or kindred rules of public policy, the fact of insurance coverage is not of significance, Bendler v. Bendler, supra; Woods v. Overlook Hospital Association , 6 N.J. Super. 47 (App. Div. 1949), and thus such rule of immunity must be understood to extend, in necessary implication, not only to the prevention of actual
financial harm to the spouse, potentially disruptive of marital harmony, but as well to a mere public appearance of such risk, all within the theory of the public policy of the State. Nor is the origin of the liability of significance, for even if the claim is reduced to foreign judgment and then sued upon here, the action is abortive as to the defending spouse despite the lack of jurisdictional defect or ...