On certification from the Superior Court, Appellate Division.
For reversal -- Justices Heher, Burling, Francis and Proctor. For affirmance -- Chief Justice Weintraub, and Justices Wachenfeld and Jacobs. The opinion of the court was delivered by Francis, J. Jacobs, J. (joined by Weintraub, C.J. and Wachenfeld, J.) (dissenting).
Plaintiff Rosemarie Koplik was injured in a motor vehicle collision on June 17, 1955, in the State of New York. The defendant Frederick Patrizio was the driver of one of the vehicles involved and plaintiff was riding in it as an invited passenger. At that time both parties resided in New Jersey and they have continued to do so. On January 11, 1956, Miss Koplik instituted this action against Patrizio to recover damages on account of her injuries. Thereafter, on June 2, 1956, she married him. On motion predicated upon the ground that the marriage removed her right to prosecute the suit, the trial court entered summary judgment for the defendant. The Appellate Division reversed, holding that the Married Persons Act, N.J.S.A. 37:2-1 et seq., does not stand in the way of prosecution of a cause of action by a wife against her husband for an antenuptial tort. Koplik v. C.P. Trucking Corp., 47 N.J. Super. 196 (App. Div. 1957). We granted certification to review the matter.
Since the parties were not husband and wife when the mishap occurred, manifestly the female plaintiff acquired a cause of action against Patrizio at that time. No conflict of laws problem is presented with respect to it, for both New York and New Jersey recognize her right to sue in such a situation. The issue here is simply whether the subsequent marriage before judgment extinguishes the right to prosecute the action.
It is universally acknowledged that at common law a tort such as this one could not be redressed between wife and husband by action at law or in equity. Kennedy v. Camp, 14 N.J. 390 (1954). This immunity has been diluted in the various states and in England by "married
persons" statutes. The extent of the refinement brought about by these acts has been the source of much conflict among the courts throughout the country. But, as is recognized in the Appellate Division opinion, the majority have decided that such legislation does not sanction suits between spouses for personal torts. 47 N.J. Super., at page 200; Annotation 43 A.L.R. 2 d 632, 636 (1955). One conclusion is inescapable from a review of the divergent viewpoints. The particular statute is controlling and the immunity persists except as the language employed by the Legislature appears to direct its modification or relaxation. 43 A.L.R. 2 d, at page 651; McCurdy, "Torts Between Persons in Domestic Relation," 43 Harv. L. Rev. 1030, 1081 (1930). If the enactment expressly or by clear implication preserves the interspousal exemption and the ancient barrier against actions between husband and wife for injuries negligently inflicted by one on the other, whatever may be the personal predilections of the particular court in such matters, they must give way to the legislative will. Thus, we are brought to an examination of the Married Persons Act of this State.
Over a period of more than 100 years, a succession of New Jersey Legislatures have narrowed the scope of the disability of the husband and wife in their jural relations with each other and with third persons. Out of the numerous enactments has evolved the body of law appearing in N.J.S.A. 37:2-1 et seq. The specific respects in which the immunities and disabilities have been removed appear in Justice Ackerson's dissent in Bendler v. Bendler, 3 N.J. 161, 174-175 (1949), and need not be repeated here. The important factor to be noted is that despite the changes thus made in the common law, and the decisions construing the statutory language by which they were accomplished, N.J.S.A. 37:2-5 still contains the following wordage which is comparatively more pervasive than that of the original enactment in the Revision of 1877, p. 639, § 14:
"Nothing in this chapter contained shall enable a husband or wife to contract with or to sue each other, except as heretofore, and except as authorized by this chapter."
It is not suggested that personal injury tort actions between husband and wife based upon negligence were maintainable prior to 1877, or that this enactment authorized them.
As far back as 1880, the clarity of that language was the subject of judicial comment. In Woodruff v. Clark & Apgar, 42 N.J.L. 198 (Sup. Ct. 1880), Chief Justice Beasley, speaking of the disability to contract, said:
"This language is not uncertain, and the provision is perspicuous with respect to its policy. The object was to leave the husband and wife, touching their capacity to bargain together, on the ancient footing of the common law. The clause is virtually a legislative declaration that, as heretofore, they may enter, inter sese, into equitable agreements, but not into legal agreements.
At all events, the will of the legislature is expressed in an unequivocal manner, to leave unaltered the status of married persons in relation to this subject, and the consequence is the contract in question cannot be carried into effect in a court of law."
And as late as 1949, this court adopted Chief Justice Beasley's view of the unambiguous character of the provision and applied it with unabated vigor as a bar to enforcement of alleged workmen's compensation rights arising out of interspousal employment contracts. Bendler v. Bendler, supra. Continuance of the "disablement of husband and wife * * * to sue each other * * * 'except as heretofore, and except as authorized'" by the Legislature, was recognized and the acceptance of the rule was accompanied by the statement:
"* * * The integrity of the marriage relation is of primary concern to society. That is the principle of the statutory provision that continues the common-law mutual disability of a husband and wife to contract inter se and to sue each other. * * *"
An effort was made in 1926 to establish that a cause of action for personal injuries suffered by a wife through the negligence of her husband could be prosecuted in equity. But on motion the complaint was stricken. Von Laszewski v. Von Laszewski, 99 N.J. Eq. 25 (Ch. 1926). Vice-Chancellor Leaming said:
"Neither at law nor in equity can an action be maintained by a wife against her husband for personal injuries.
As to our Married Woman's Act * * *, it is sufficient to say that, in the absence of a clear manifestation of legislative intent to effect so radical a change in our long-established rules in this respect, legislative purpose should not be declared by implication."
The rule was reiterated in 1939 in Hudson v. Gas Consumers' Association, 123 N.J.L. 252 (E. & A. 1939), where the court declared:
"It is of course a settled matter that a wife may not have a suit for damages against her husband for his tort. This is the common law rule and no statute has been enacted in this state that disturbs it."
It was recognized again by this court in Clement v. Atlantic Casualty Ins. Co., 13 N.J. 439, 445 (1953), and repeated as a settled doctrine in Kennedy v. Camp, supra, 14 N.J. at page 397. And see also Drum v. Drum, 69 N.J.L. 557 (Sup. Ct. 1903); Metzler v. Metzler, 8 N.J. Misc. 821 (Cir. Ct 1930); Lang v. Lang, 24 N.J. Misc. 26 (Cir. Ct. 1946). In spite of the many years that have gone by since the proscription against such interspousal suits was first enacted, during which the courts have been applying it in the situations described, it has never been changed. On the contrary it was included in the General Statutes of 1895, p. 2015, § 14, and in the Compiled Statutes of 1910, p. 3237, § 14. And in the Revised Statutes of 1937 the language was made more comprehensive and more emphasis was given to it by specifically relating it to the various legislative enactments which were then gathered into chapter 2 of Title 37. At that time, as has been indicated, the prohibition took on its present form: "Nothing in this chapter contained shall ...