Muccifori, J.c.c. (temporarily assigned).
This litigation, presently before the court on defendant's motion for summary judgment, concerns the controversial problem of intrafamily tort actions as applied to suits commenced under the Survivor's Act, N.J.S. 2A:15-3 and the Wrongful Death Act, N.J.S. 2A:31-1. There is no recorded appellate decision in New Jersey which deals with the precise legal questions presented by the motion.
The factual allegations in the complaint pertinent to the decision of this motion are as follows:
On May 6, 1964 defendant Frank Shannon operated an automobile along Route 70 in Manchester Township, Ocean County, New Jersey. His wife Margaret was a passenger. The complaint alleges that as a result of defendant's negligence a collision occurred in which Mrs. Shannon sustained serious injuries from which she subsequently died. Margaret Tharp, decedent's daughter and administratrix ad prosequendum, instituted this suit for the benefit of herself and decedent's son Frank. At the time of the accident decedent was living with her husband and their 17-year-old son in Brick Town, New Jersey. Margaret Tharp did not live with her parents but resided with her husband and her two children. The papers on file indicate that in May 1964 Frank Shannon was an unemancipated minor depending upon his parents for his sole means of support. This fact was not refuted by plaintiff at the hearing and we must, therefore, accept it as an uncontroverted fact.
The complaint is also directed against one Mario E. Malatesta, driver of the vehicle which came into collision with defendant's vehicle, but we are not here concerned with that aspect of the litigation. There appears to be a technical deficiency in the complaint in that the general administrator has not sued under N.J.S. 2A:15-3. The court, however, will deal with the case as if it had been properly instituted since the technical deficiency could be cured by a motion to amend.
In his brief and at oral argument, defendant contended that (1) the interspousal immunity doctrine precludes the
maintenance of this suit under both the Survivor's Act and the Wrongful Death Act; (2) no suit could be maintained for the benefit of the decedent's son because of the intrafamily immunity doctrine, which precludes suits by an unemancipated child against a parent for a tort, and (3) the daughter's claim for dependency was so insignificant as to be incapable of supporting a claim. Reasoning beyond this point, the defendant argued that since the statute, N.J.S. 2A:31-4, gives any recovery to a dependent to the exclusion of all others, the daughter could not recover since her brother was a dependent, even though he was incapable of recovering damages by reason of the intrafamily immunity doctrine. Because of the view taken by the court on the first two arguments presented, it is unnecessary to discuss the defendant's third point.
The recent cases of Long v. Landy, 35 N.J. 44 (1961), and Heyman v. Gordon, 40 N.J. 52 (1963), although not deciding the precise legal issues presented, have been instrumental in framing the court's disposition of the motion. Though there has been disagreement and voluminous academic treatment and discussion on the view presently taken by our courts with regard to intrafamily immunities, the court has followed the majority opinion as reflected in Hastings v. Hastings, 33 N.J. 247 (1960), and Heyman v. Gordon, supra, and the authorities cited therein, to dispose of the issues presented.
Plaintiff, in opposing the motion, suggested that the Supreme Court may change its majority view if a change in the personnel of the court is effected. However, it is not the prerogative of this court to speculate as to the effect of a change of attitude in that court or attempt to second guess in which direction the court might lean in the future. This court must adhere strictly to the principles of stare decisis and give the same degree of deference to the Supreme Court decisions as does our Appellate Division.
"Respondents' contentions run full-square into the decision of the Court of Errors and Appeals in Teets v. Hahn (supra, 104 N.J.L. 357), and we are bound by the opinion of our State's then highest court. As judges of the Appellate Division it is our conception that our duty is encompassed by the obligation to decide what is the law to be applied to a given case on appeal and not what ...