[94 NJSuper Page 62] This is a motion for summary judgment by defendant Louis Olivarez for dismissal of the complaint in an action grounded in negligence brought by plaintiff Rose Sanchez.
The facts succinctly stated are as follows: Plaintiff was married to defendant on September 23, 1958; on January 17, 1965 plaintiff was a passenger in an automobile which defendant was operating when it was caused to strike a pole, from which consequence plaintiff was injured.
Thereafter, plaintiff instituted divorce proceedings against the defendant whereupon it is said a judgment was granted October 29, 1965. Subsequently, on September 13, 1966 the present action against her former husband was commenced.
The issue here is simply whether the disclosed divorce judgment revives and warrants a created right in the former wife to prosecute an action in negligence for a tort which occurred during coverture. While under the related circumstances this case appears to be one of first impression in this State, there is sufficient law to resolve the issue.
It is well established in our State that there can be no action in tort as between husband and wife. N.J.S.A. 37:2-5 provides:
"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."
In view of this statute, our courts have had no choice but to apply the common-law bar to interspousal litigation. Lang v. Lang, 24 N.J. Misc. 26, 45 A. 2 d 822 (Cir. Ct. 1946); Bendler v. Bendler, 3 N.J. 161 (1949); Kennedy v. Camp, 14 N.J. 390 (1954); Pennsylvania Greyhound Lines Inc., v. Rosenthal, 14 N.J. 372 (1954); Koplik v. C.P. Trucking Corp., 27 N.J. 1 (1958). The rule has been soundly criticized. See dissent by Justice Jacobs in Koplik, at p. 13. The Legislature has long been aware of the criticism, but in its wisdom has seen fit to remain mute on the question. That being so, this court iterates the language of Justice Francis in Koplik:
"The policy issue is clear and if a legislature wishes to abrogate the immunity, it ought to say so clearly and unequivocally." (at p. 12)
One spouse may not sue another in tort. However, the facts of the case at bar are such that the court must concern itself with the common-law bar to interspousal immunity as related to the actual marital status of the parties at the time of this motion. This court, upon the record before it, must logically conclude in light of the holdings of Long v. Landy, 35 N.J. 44; Koplik v. C.P. Trucking Corp., supra, and Taibi v. DeGennaro, 65 N.J. Super. 294 (Law Div. 1961), that interspousal immunity does not exist between the parties in this action.
In Long v. Landy, supra, a wife who was injured in an auto accident while a passenger in an auto driven by her husband, he being killed as result of the same accident, was allowed to bring an action against the administrator of her husband's estate. The court held:
"The concept of the unity of husband and wife is terminated upon the death of either spouse and the common law reason for the interdiction against interspousal suits based upon such unity no longer exists when the marriage has been so ...