For affirmance -- Justices Francis, Proctor, Hall and Haneman. For reversal -- Chief Justice Weintraub and Justices Jacobs and Schettino. The opinion of the court was delivered by Hall, J. Jacobs, J. (dissenting). The Chief Justice and Justice Schettino join this dissent.
This litigation involves another aspect of intrafamily tort actions. May a wrongful death action for the sole benefit of an unemancipated minor child be maintained against the father grounded on the latter's alleged negligence which resulted in the death of the wife and mother?
The death occurred from an automobile collision between cars driven by defendants Gordon and Schneber. Mrs. Gordon, the decedent was a passenger in her husband's car along with their son Stanley. The son was 13 years of age at the time, unemancipated and solely dependent upon his father for his support. The plaintiff, a stranger, was appointed general administrator and administrator ad prosequendum of the wife's estate. He instituted this action against Gordon and Schneber, which included a claim against Gordon for damages resulting from wrongful death. N.J.S. 2A:31-1, et seq. The complaint alleged that Mr. Gordon was not dependent on his wife at the time of her death and that the death claim was asserted solely for the benefit of the son. Gordon carried liability insurance; Schneber was an uninsured motorist.
Gordon, through his insurance carrier of course, moved for summary judgment as to the death claim against him. The Law Division granted the motion and plaintiff's appeal to the Appellate Division was certified on our own motion.*fn1
The trial court gave two reasons for its decision. First, it said that the wrongful death statute permits an action thereunder only "[w]hen the death of a person is caused
by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury * * *," N.J.S. 2A:31-1, and that, under the law in New Jersey, Mrs. Gordon could not have sued her husband if she had survived. Second, the substance of the action is a claim for damages for the benefit of an unemancipated child against his parent, likewise barred by the decisional law of this State.
While our wrongful death statute creates a cause of action which did not exist at common law because a tort claim did not survive the death of the injured party, the statutory claim still has to rest upon the same sine qua non as if death had not resulted, i.e., "a wrongful act, neglect or default" of the defendant. The theory and measure of damages, and so the beneficiaries, constitute the fundamental distinction. Our law is settled that one spouse may not sue the other for injuries negligently inflicted, at law or in equity, for reasons of policy primarily based on the family relationship. Koplik v. C.P. Trucking Corp., 27 N.J. 1 (1958). Where the policy reason has disappeared, as for example because of the death of the defendant spouse, the reason for the bar is gone and the action is permitted against the latter's estate. Long v. Landy, 35 N.J. 44 (1961). In the instant case, however, this basic consideration still exists despite the death of the injured spouse, since the only beneficiary is still within the family relationship giving rise to this reason for the bar. Stripping the situation of formalities, which should not be allowed to disguise it, the real and only party in interest is the son. He seeks to collect money from his father on the ground that the latter negligently caused the death of his mother. We see no essential difference between this state of fact and that where an unemancipated child sues his parent for his own injuries, negligently caused. That such a cause of action may not be prosecuted in New Jersey even where the parent is insured, was decided by Hastings v. Hastings, 33 N.J. 247 (1960). The policy reasons there relied upon are equally controlling here.
We need not pass upon the first ground relied upon by the trial court, i.e., by reason of the requirement of N.J.S. 2A:31-1, no action for wrongful death will lie because the decedent could not have maintained a suit against her husband if death had not ensued. In states like New Jersey where the statute creates a new cause of action rather than having the effect of survival, the authorities are divided as to whether this requisite pertains only to elements inhering in the tort itself or extends to personal disabilities and immunities as well. See cases collected in Annot. 28 A.L.R. 2 d 662 (1953); Prosser, Torts, § 105, pp. 716-717 (2 d ed. 1955); 2 Harper and James, The Law of Torts, § 24.5 (1956). As the New Hampshire court said in Levlock v. Spanos, 101 N.H. 22, 131 A. 2 d 319, 321 (Sup. Ct. 1957), most courts have held that immunities during life do bar a death action. The point apparently has never been decided by an appellate court in this State. A trial court decision some years ago squarely held as did the Law Division here. Damiano v. Damiano, 6 N.J. Misc. 849, 143 A. 3 (Cir. Ct. 1928). Long v. Landy, supra (35 N.J. 44) did not present the issue since there the action was not under the death act but by the surviving spouse against the estate of her deceased husband.
We have carefully considered all the arguments for reversal urged by plaintiff but find none of them persuasive in view of the policy reasons set forth above. We appreciate, of course, that some other jurisdictions have reached an opposite result, but we are convinced they have done so by reason of different approaches to their death acts or a dissimilar point of view with regard to intra-family negligence actions.