For affirmance in part and reversal in part -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Schettino, J.
[36 NJ Page 237] The issues in this case involve the applicability of the doctrine of Koplik v. C.P. Trucking Corp., 27 N.J. 1 (1958). Appeal was taken to the Appellate Division from the trial court's order granting a motion to dismiss the third and fourth counts of the complaint. In the former count, Isabella Heulitt Orr seeks to recover damages from her husband, the respondent, Stanley W. Orr, for a pre-nuptial tort. In the latter count, Lester M. Heulitt, father of Isabella, seeks damages against the respondent for medical expenses and loss of services allegedly stemming from the injuries to Isabella. Before argument in the Appellate Division, we certified the appeal on our own motion. R.R. 1:10-1(a).
On May 31, 1959 Isabella, then an unemancipated minor, was injured when the automobile in which she was riding left the highway. The car was owned by defendant, Stanley M. Orr, and driven by the respondent. This suit was instituted subsequent to Isabella's marriage.
The motion was grounded on the argument that as to the female plaintiff there existed immunity from suit due to the marital relationship. As to her father, defendant argued that the marriage emancipated the daughter and therefore terminated any parental right of services. In ruling that defendant's motion should be granted, the trial court relied upon the Koplik doctrine of interspousal immunity regarding Isabella's claim. The court then reasoned that the father's cause of action was derivative and would therefore be barred because his daughter had no right to sue.
Koplik reaffirmed the prohibition against negligence actions between a husband and wife even though the accident occurred before marriage. A majority of the court adhering to Koplik, that portion of the judgment dismissing Isabella's action against her husband is therefore affirmed.
We next consider whether Koplik also bars the father's right to recover for medical expenses and loss of services for the period between the date of the accident, May 31, 1959, and the date of marriage, December 29, 1960. We hold it does not.
At the outset, a point is made that the complaint fails to allege Isabella's status as a minor during the above period. Another subordinate point argued is that the father requests recovery in the complaint for damages covering loss of future services. It is enough to note that
a request to correct these deficiencies in the complaint was orally made at the time of argument on the motion to dismiss. In both respects the father should be granted permission to amend the complaint. We therefore treat the basic issue as if these amendments were already made.
Respondent recognizes that the applicable law indicates a separate right in the father to maintain an action for consequential damages. Nevertheless, he argues that the right is at the same time derivative and dependent or incidental. He emphasizes this argument by contending that the right of a parent, "the holder of the consequential-damage," should rise no higher than the right of the holder of the primary claim, the infant; that unless the infant is entitled to recover, the parent cannot; and that as the infant's right is barred (in this case by marriage to respondent) the parent is also barred.
It has often been declared that a husband's or a parent's claim for consequential damages will succeed only if all of the elements of liability exist as to the wife or infant. Rossman v. Newbon, 112 N.J.L. 261 (E. & A. 1933); Vorrath v. Burke, 63 N.J.L. 188 (Sup. Ct. 1899); 3 Restatement of Torts § 703, comment a (1938). Parenthetically we note that this principle has come under attack by many authors. 1 Harper and James, The Law of Torts 633, 640 (1956); Prosser, The Law of Torts § 104, at p. 702, and authorities in n. 48 (2 d ed. 1955). But the full scope of that question need not now be reviewed. While ordinarily the facts establishing initial liability of the defendant to the child must be proved in a parent's cause of action for consequential damages, ...