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Patusco v. Prince Macaroni Inc.

Decided: November 20, 1967.


On appeal from the Superior Court, Appellate Division.

For modification -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Weintraub, C.J.


This case arose out of a rear-end collision between moving vehicles in a 50-mile zone. Plaintiff husband, whose car was struck in the rear by defendants' truck, said he applied his brakes because traffic ahead slowed to about 30 miles per hour while defendants claimed plaintiff, after trying to enter another lane, returned suddenly to his original path and unnecessarily applied his brakes when another vehicle in that other lane sounded a warning horn. Plaintiff and his wife, a passenger, both claimed personal injuries. The jury found in favor of the wife but against the husband as to both his claim for injuries and his claim per quod arising out of the injuries to the wife.

The Appellate Division reversed the judgment as to the husband, finding it was error to leave the issue of contributory negligence to the jury, and ordered a retrial as to damages only. As to the wife, the court ordered the judgment increased by the amount of her medical bill if defendant consented thereto, she otherwise to have a new trial as to damages only. We granted defendants' petition for certification. 48 N.J. 136 (1966).


We granted certification primarily to consider the right of a married woman to recover the cost of her medical treatment and care. Noting that plaintiff was a "working" wife and that the medical bill was addressed to her, the Appellate Division held the jury should have been told she was entitled to recover for that item if she had "rendered herself liable" for it. Defendants say this was error because the law imposes upon a husband the duty to provide necessary medical care for his wife and hence the claim must be

deemed to be his. In any event, say the defendants, the record does not show affirmatively that the wife agreed to be liable, and therefore it must be found that the husband was the one responsible for the bill by reason of his marital duty of support.

We should stress we are speaking of medical treatment and care of a married woman and not of her husband's claim for loss of consortium. The law recognizes a man's relational interest in his wife and gives him a cause of action against one who negligently invades that interest. Although the husband's consortium claim is thus distinct from the wife's, it will fall if the wife was contributorily negligent. It will also fall if the husband himself was negligent. That the wife's carelessness should bar the husband's claim for loss of consortium is questioned academically, see Orr v. Orr, 36 N.J. 236, 239 (1961), but as to the husband's own negligence it is correct to say upon current notions of liability that the husband ought not to recover if he himself negligently contributed to that loss.

But, we repeat, we are here concerned, not with the husband's per quod claim respecting consortium, but rather with the claim for the wife's medical. Abstractly considered, the subject is not difficult. An injured person is entitled to be made whole. It should not concern the tortfeasor that someone else is obligated to aid his victim because of a duty assumed by contract or imposed by law. This is the premise of the so-called "collateral source" rule, which holds a wrongdoer cannot claim the benefit of the rights his victim may have against others by virtue of contract, employment, or other relation. See 22 Am. Jur. 2 d, Damages, § 206, p. 286 et seq.; 2 Harper and James, Torts, § 25.22, p. 1343 (1956); Rusk v. Jeffries, 110 N.J.L. 307 (E. & A. 1933). So here, a tortfeasor ought not to escape responsibility to the wife merely because her husband owes a marital duty to provide for her needs.

Nor should it matter that the husband contributed to her hurt. It must be kept in mind that under the existing

policy in our State a wife may not sue her husband as a tortfeasor, and this being so, the husband cannot protect her from his negligence through conventional liability insurance. To visit any part of the tort liability upon the husband is to run afoul of this policy.*fn1 More importantly, to do so would in practical effect leave the loss with the wife. That would be the result if the husband were impecunious, and, realistically, that would equally be the result if the husband could pay the bill since in most situations the wife's total economic experience is hinged firmly to his. Indeed, today, with the high cost of medical and hospital attention, the collectibility of those ...

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