For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Haneman, J.
[35 NJ Page 46] A. Parker Long, guardian ad litem of Dorothy Pope Long, an incompetent and widow of John
Russell Long, brought suit against Morris and Celia Landy, alleging that Mrs. Long sustained injuries as a result of a collision of a motor vehicle operated by her husband with a vehicle operated by Morris Landy and owned by Celia Landy. The Landys, in turn, joined A. Parker Long, administrator of the estate of John Russell Long, as a third-party defendant, alleging that Long was liable in whole or in part for Mrs. Long's alleged injuries as a sole or joint tortfeasor. Since the guardian and administrator were the same person, Edward J. MacDonald was appointed guardian ad litem for Mrs. Long and substituted as a party plaintiff. The complaint was amended by adding a count seeking direct recovery by the wife against her husband's estate. Prior to trial the administrator moved for a summary judgment as against both the plaintiff and the third-party plaintiff on the ground of interspousal immunity. The motion was denied Long v. Landy, 60 N.J. Super. 362 (1960). At the close of defendants' cases the trial court granted the Landys' motion to dismiss for lack of proof of negligence and denied a motion by the administrator for dismissal as to both plaintiff and the Landys, again based on interspousal immunity. The jury rendered a verdict against the administrator. Subsequently the administrator moved to set off against the judgment the value of various items of personalty, title to which was jointly held by the Longs during the husband's lifetime and which devolved upon Mrs. Long at her husband's death, the proceeds of several insurance policies, and money received from the John Russell Long estate. The trial court denied this motion. Both plaintiff and the administrator appealed to the Appellate Division. The administrator appealed from the final judgment and denial of his motion for set-off and plaintiff appealed from the judgment of dismissal as to the Landys. We certified the appeal on our own motion, R.R. 1:10-1(a).
The facts giving rise to the suit are as follows: On February 15, 1958 at around six o'clock in the evening, Mr. and Mrs. Long were proceeding by automobile in a westerly
direction on Route 70 toward Camden. Mr. Long was operating the automobile and his wife sat beside him on the front seat. At the same time and place Mr. and Mrs. Landy were proceeding by automobile in an easterly direction. Mr. Landy was operating the automobile and his wife sat beside him in the front seat. A collision occurred between the two cars in Manchester. As a result of injuries sustained, Mr. Long died two days later and Mrs. Long, who received a head injury, was rendered mentally incompetent. The Landys received less grievous injuries.
At the site of the accident, Route 70 is a two-lane concrete highway, one heading in each direction, with a slightly sloping gravel shoulder adjacent to each concrete strip. It was near dusk and snowing, the highway being covered with an inch or two of snow.
The sole eyewitnesses to the accident capable of testifying were the Landys. Mr. Landy's testimony is to the effect that shortly before the accident he was driving at about 20 miles per hour with his right wheels on the gravel shoulder to obtain greater traction. He first saw the Long car when it was about 150 feet away and approaching at a speed of approximately 40 miles per hour. Some six seconds or less thereafter the front of the Long car swung in his direction. He removed his foot from the accelerator in order to reduce the speed of his car. The Long car straightened out but when 25 or 50 feet from the Landy car it suddenly swung over into the Landy lane and struck the Landy car on the left front fender with the portion of the Long car where the driver would ordinarily be sitting. The impact caused both cars to spin. The Long car again struck the Landy car, the right side of the Long car hitting the left side of the Landy car approximately where Landy was sitting. Both cars came to rest in positions almost perpendicular to their original line of travel. The Long car was across the center line of the highway and the Landy car, for a considerable portion of its length, was off the lane and shoulder in which it had been travelling.
A state trooper testified that he had discovered debris from both cars in the middle of the lane in which the Landys had been travelling.
Doris Gore, proprietress of a store located on Route 70 at a point slightly to the east of the site of the collision, testified that she heard the crash of the cars but did not see the accident. After putting on boots she assisted the Landys into her store. She went to the site of the accident and, although she could not tell exactly where the skid marks began, she described such marks as commencing somewhere in the lane in which the Longs had been travelling and ending at the rear wheels of that vehicle.
Defendant administrator argues three grounds for reversal, (1) the disability of one spouse to sue the other continues after the dissolution of the marriage by death, (2) the court erred in granting the Landy motion for a judgment of involuntary dismissal, (3) if the defendant administrator is liable, the benefits received by Mrs. Long by way of insurance and the devolution of property through the death of her husband should be set off against any judgment. Plaintiff joins in the administrator's argument that the court erred in granting the Landy motion for an involuntary dismissal.
At the outset it must be recognized that the rule followed in this State is that one spouse may not sue the other in tort. Koplik v. C.P. Trucking Corp., 27 N.J. 1 (1958); Kennedy v. Camp, 14 N.J. 390 (1954); Pennsylvania Greyhound Lines, Inc. v. Rosenthal, 14 N.J. 372 (1954); Tomkovich v. Public Service Coordinated Transp., 61 N.J. Super. 270 (App. Div. 1960). The rule has been widely criticized, see dissent in Koplik v. C.P. Trucking Corp., supra, 27 N.J., at p. 13. Primarily this rule is bottomed upon the reasoning ...