Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
As we see the issues in this case, the determinative inquiry is whether a negligence action is barred by the law of this state where the female plaintiff marries the defendant pendente lite.
The plaintiff was a passenger in an automobile being operated by the defendant Frederick Patrizio in New York State on June 17, 1955, when she was injured as a result of a collision between that car and a vehicle owned by the defendant C.P. Trucking Corporation, and operated by its employee, the defendant Angelo Nuzzo. This action, in which Patrizio was joined as a defendant on the basis of his alleged negligence in the operation of the car in which plaintiff was riding, was instituted January 11, 1956. Plaintiff and Patrizio, both residents of New Jersey, were married on June 6, 1956. Thereupon Patrizio moved for summary judgment on the ground that the marriage barred the continued prosecution of the action. The motion was denied November 9, 1956. Thereafter the case came on for trial January 28, 1957, and the motion for judgment was renewed on the same ground and again denied. The trial resulted in a mistrial. Thereafter a new motion for summary judgment was brought on before the same trial judge who had heard the original motion, and the court ruled it had been
in error in denying the motion previously and that the public policy and reported decisions of our courts precluded the maintenance of the action in this state after the marriage of the parties. Judgment was consequently entered against the plaintiff as to the defendant Patrizio. Leave to appeal was heretofore granted by this Division.
Under the statute law of the State of New York a wife is under no disability to sue her husband for damages in tort. Domestic Relations Law , § 57. But our own decisions enforce the common law immunity in that regard, and it is held that the so-called Married Women's Act (R.S. 37:2-1 et seq.) has not abrogated it. Kennedy v. Camp , 14 N.J. 390 (1954). In Wolfer v. Oehlers , 8 N.J. Super. 434 (Law Div. 1950), moreover, it was held that the principle of immunity applied notwithstanding the fact that the accident and the institution of the action both antedated the marriage. Consequently most of the argument before us has pertained to the question of the correct choice of law on the assumption that the law of the forum precludes, while the lex loci delictus permits recovery. The conflict of laws issue need not detain us, however, as we have decided, for reasons to be stated hereinafter, that the law of New Jersey does not bar recovery in the precise factual setting here presented. As an aside, we suggest that if this were an action instituted after marriage, and thus squarely implicating different substantive law in the state of forum and domicile, on the one hand, and of the accident, on the other, a respectable argument could be made for the proposition that the substantive law problem is more appropriately to be characterized as belonging in the field of family relations than that of tort and therefore properly to be resolved by the law of the domicile of the parties rather than that of the place of accident. See the treatment of the characterization problem in relation to choice of law in Wilson v. Faull , 45 N.J. Super. 555, 560, et seq. (App. Div. 1957), certification granted 25 N.J. 53 (1957); Lorenzen, "Characterization in Conflict of Laws," 50 Yale L.J. 743, 748 (1941). In support of the particular conclusion
suggested above see Morris, "The Proper Law of a Tort," 64 Harv. L. Rev. 881, 885, 886 (1951); Stumberg, Conflict of Laws (2 d ed. 1951), 206; Ford, "Interspousal Liability for Automobile Accidents," 15 U. Pitt. L. Rev. 397, 424 (1954); Cook, Logical and Legal Bases of Conflict of Laws (1949), 346; Rheinstein, "Michigan Legal Studies: A Review," 41 Mich. L. Rev. 83, 97 (1942); Cheatham and Reese, "Choice of the Applicable Law," 52 Col. L. Rev. 959, 975 (1952). But, as indicated, this problem is not reached if it is concluded that the correct substantive law determination for New Jersey matches that admittedly dictated by the New York statute.
The development of the reasons for our conclusion will be facilitated by outlining the thesis at the outset. Of the various philosophies advanced for the survival of the common law interspousal immunity from an action in tort, the public policy for prevention of marital disharmony is the only one having any remaining claim for rational justification. The Married Women's Act in this State, while not itself abrogating this immunity, has not legislated its continuance intact as at common law. A common law rule is subject to change or modification at the hands of a court of general original jurisdiction when it becomes apparent that it no longer serves, if it ever did, the public policy which gave it birth. No purpose or objective significantly grounded in prevention of marital discord can be found to be served by the involuntary abatement of an action in negligence brought by a passenger in an automobile against its operator by mere reason of the intermarriage of the parties pending the action. No tribunal in this State of higher authority than this court having heretofore held to the contrary, we are free to so adjudicate.
In the common law the general immunity of a husband from suit at the hands of his wife was doctrinally rooted in the theoretical identity of husband and wife. Kennedy v. Camp, supra (14 N.J. at page 395); Prosser, Law of Torts (2 d ed. 1955), § 101, p. 670; 1 Harper & James, Law of Torts (1956), § 8.10, p. 643. As far as personal
and property rights were concerned, the legal existence of the wife was merged into that of her husband, the latter acquiring the right to possession and use of all of his wife's property, including choses in action. Ibid. The manifold respects in which the marriage relation at common law affected rights, privileges and immunities between husband and wife, and as to third persons, growing out of torts by and against a married woman, are well summarized in McCurdy, "Torts Between Persons in Domestic Relation," 43 Harv. L. Rev., pp. 1030, 1031-1033 (1930). As there stated (at p. 1033), "A combination of all these incidents made it impossible at common law for one spouse ever to be civilly liable to the other for an act which would be a tort if the relation did not exist."
The advent of the married women's acts throughout the states and in England, however, resulted in the recognition of the wife's separate legal identity and consequent separate legal estate in her own property. Prosser, op. cit., supra , at 672. Generally these acts have been interpreted as conferring upon the wife the separate ownership of her own property, including choses in action, the capacity to maintain and defend suits in her own name and without the joinder of her husband, and the capacity to contract in her own right. Ibid. However, a majority of the courts have refused to construe the ...