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Ekalo v. Constructive Service Corp.

Decided: December 6, 1965.


For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Jacobs, J.


[46 NJ Page 83] The trial court dismissed the plaintiff's complaint for failure to state a claim upon which relief could be granted. The plaintiff appealed to the Appellate Division and we certified before argument there.

The complaint alleged, inter alia, that the plaintiff's husband Michael, while on a public street in Perth Amboy, was seriously injured when an explosion occurred as a result of the defendants' negligent construction and maintenance of a gas line and that because of the defendants' negligence she suffered loss of her husband's "services, society and consortium" for which she seeks money damages. Since the complaint was dismissed prior to the taking of any testimony we know nothing about the nature of the husband's injuries except that which is set forth in the plaintiff's brief and in its accompanying excerpts from a deposition by the husband in a separate proceeding which he has instituted in the Law Division. The brief asserts that although Michael was "a normal man and had a normally happy marriage and home life," since the accident he merely sits around the house, refuses for the most part to see friends and relatives, engages in no social activities, and "is totally unable to have sexual relations" with his wife. Her claim is that as a proximate result of the defendants' negligence, she has been transformed "from a loving wife into a lonely nurse" and that her very real loss may not justly be permitted to go uncompensated.

In dismissing the complaint, the trial court considered itself bound by the Appellate Division's holding in Larocca v. American Chain & Cable Co., 23 N.J. Super. 195 (App. Div. 1952). There a husband and wife sued for injuries allegedly resulting from the defendant's negligent conduct. The husband sought damages for his physical injuries and the wife sought damages for the deprivation of her husband's aid, society and conjugal fellowship, commonly known as consortium. The trial court dismissed as to the wife on the ground that her claim was not cognizable in the law and dismissed as to the husband for lack of a sufficient showing of liability on the part of the defendant. The Appellate Division, while sustaining the dismissal as to the wife, reversed as to the husband on the finding that there was enough evidence to go to the jury with respect to his claim. In this court, we affirmed as to the husband, and since no review had been sought before us

by the wife, we stated that there was no occasion to consider the soundness of the Appellate Division's holding that a wife may not assert a claim for loss of consortium resulting from a defendant's negligence. See Larocca v. American Chain & Cable Co., 13 N.J. 1, 4 (1953). We now, for the first time, have that issue squarely presented for our determination; such earlier expressions as may be found in our State on the subject are inconclusive and not at all controlling. See Sims v. Sims, 79 N.J.L. 577 (E. & A. 1910); Tobiassen v. Polley, 96 N.J.L. 66 (Sup. Ct. 1921); Danek v. Hommer, 14 N.J. Super. 607, 615 (Essex Cty. Ct. 1951), affirmed 9 N.J. 56 (1952); Alfone v. The Newark Umbrella Frame Co., 13 N.J. Super. 526, 528-529 (Essex Cty. Ct. 1951).

It was well recognized at common law that a defendant who intentionally or negligently injured a married woman could be held liable to her husband for the loss of his wife's consortium. See 1 Harper & James, Torts § 8.9 (1956); Salmond, Torts § 179 (12 th ed. 1957). The husband's action admittedly originated at a time in history when the wife was wholly subservient and her loss was viewed by the law primarily in terms of the deprivation of her services; nevertheless the husband's action is widely accepted as a continuing one in these modern times of reciprocal spousal equality and is not dependent on an allegation of loss of services. See Guevin v. Manchester St. Ry., 78 N.H. 289, 99 A. 298 (1916); Shreve v. Faris, 144 W. Va. 819, 111 S.E. 2 d 169 (1959); Pound, "Individual Interests in the Domestic Relations," 14 Mich. L. Rev. 177, 188 (1916); see also Sims v. Sims, supra, 79 N.J.L., at p. 581. In New Jersey, the husband's cause of action per quod, for the loss of consortium attributable to injuries tortiously inflicted on his wife, has been long and firmly established and is not in serious question here. See Nuzzi v. United States Casualty Co., 121 N.J.L. 249, 254 (E. & A. 1938); Schuttler v. Reinhardt, 17 N.J. Super. 480, 486 (App. Div. 1952); Clark v. Chaisson, 7 N.J. Misc. 269, 145 A. 226 (Sup. Ct. 1929); Caswell v. North Jersey St. Ry. Co., 69 N.J.L. 226 (Sup. Ct. 1903);

cf. Blanken v. Braslow, 130 N.J.L. 475 (Sup. Ct. 1943); Bedell v. Mandel, 108 N.J.L. 22 (Sup. Ct. 1931); Redfield v. Hurff, 9 N.J. Misc. 15, 152 A. 451 (Sup. Ct. 1930); Annot., 133 A.L.R. 1156, 1157 (1941).

The common law did not recognize any consortium action in the wife but this was understandable in the light of its medieval concept that, during the marriage, the legal existence of the wife was suspended or incorporated into that of the husband. 1 Blackstone, Commentaries § 442. With the alteration of the status of women and the adoption of Married Women's acts, state courts quickly recognized the wife's consortium action where the defendant's wrong was an intentional one. See Prosser, Torts § 118, at pp. 903-904 (3 d ed. 1964). This was done in New Jersey in 1910 by our then court of last resort in Sims v. Sims, supra, 79 N.J.L. 577. See Alfone v. The Newark Umbrella Frame Co., supra, 13 N.J. Super., at p. 530.

In Sims the wife brought an action to recover damages from the defendants for having maliciously enticed away her husband and alienated his affections. Rejecting earlier holdings of lower courts, the Court of Errors and Appeals held that such an action could be maintained.*fn1 After referring to the antiquated common law notions which had enveloped the identity of the wife into that of the husband and had imposed gross procedural disabilities upon her, the court had this to say with respect to the sweep of our legislation relating to married women (see R.S. 37:2-1 et seq.):

"Keeping in mind the old law and the existing mischief, it becomes manifest that the legislative intent which inspired this remedial measure could have been only a desire to confer upon the married woman that equality of remedy as an independent suitor which would enable her to vindicate her right in personam for a tort committed against her, and thus remedy the inequality to which she was subjected by the common law." 79 N.J.L., at p. 582.

Despite the breadth of the court's language in Sims, a motion to strike a wife's complaint for loss of consortium resulting from the negligent infliction of bodily injury on her husband, was granted by a single Justice in Tobiassen v. Polley, supra, 96 N.J.L. 66, on the ground that Sims dealt only with an intentional wrong and was not to be extended to a negligent wrong. The Justice took the position that the injury to the wife was an indirect one rather than a direct one as in Sims and relied on an Ohio case and on similar out-of-state decisions which had held that, notwithstanding their Married Women's Acts, a wife could not maintain an action for loss of consortium resulting from personal injury caused to her husband "by the negligence of a stranger." ...

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