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Franco v. Davis

Decided: February 20, 1968.

MELODY DALE FRANCO, PLAINTIFF-APPELLANT,
v.
JAMES GLYNN DAVIS, DEFENDANT-RESPONDENT



For affirmance -- Justices Francis, Proctor, Hall and Haneman. For reversal -- Chief Justice Weintraub and Justices Jacobs and Schettino. Jacobs, J., dissenting. Weintraub, C.J. and Schettino, J., agree with this dissent and join me in voting to reverse.

Per Curiam

This is an intra-family negligence case. The plaintiff made two basic contentions at the trial level, which she reasserts here. One is that this case is different enough factually from Hastings v. Hastings, 33 N.J. 247 (1960), in which we held that a negligence action could not be maintained by an unemancipated child against her parent, so that the principles of that decision should not bar this suit. The second is that, in any event, Hastings ought to be reconsidered in view of subsequent developments in this field of the law in this and other jurisdictions. Judge Halpern found no sufficient factual distinction from Hastings and, as a trial judge, quite properly ruled that reconsideration of the doctrine was a matter for this court alone. He therefore granted defendant's motion for summary judgment. We allowed plaintiff's application to certify her appeal before argument in the Appellate Division. R.R. 1:10-1A.

The facts are undisputed insofar as they relate to the legal questions before us. The plaintiff was born in 1948. Her parents were divorced while she was very young. In 1956 her mother married the defendant and the plaintiff became part of the family household in New Jersey thereby created. The defendant formally adopted her in January 1964. In June of that year the three undertook a week-end motor trip

to North Carolina, with defendant driving. An accident occurred in that state before they reached their destination. The car left the road in the early morning hours and crashed into a pole, killing the mother and injuring the plaintiff.

Thereafter plaintiff continued to live in her adopting father's household in this state until her marriage in August, 1965, by which event she became emancipated. This suit, charging the father with negligence in the operation of the vehicle, was commenced some time subsequent to the marriage.

The defendant was covered by a liability insurance policy and so the carrier is, realistically, the true party in interest. The policy also provided for medical payments to injured persons regardless of the insured's fault. That element of the coverage is not involved in the case.

Both sides agree that, under modern conflict of laws principles, the law of New Jersey controls on the issue involved although the alleged tort occurred in North Carolina. Mellk v. Sarahson, 49 N.J. 226 (1967).

We agree with the trial court that the facts do not differ significantly from those in Hastings and we see no convincing reason why the fundamental rationale undergirding that opinion, which need not be fully repeated, does not dictate the same result in this case. That plaintiff was an adopted rather than a natural child of defendant's is of no consequence, since a judgment of adoption in this state establishes "* * * the same relationships, rights, duties and obligations between the child and the adopting parent as if such child were born to such adopting parent in lawful wedlock." N.J.S.A. 9:3-30B. Nor do we think it should make any difference that one of plaintiff's parents -- her natural mother -- was killed in the accident. She was not the alleged tort-feasor and the family unit still remained, though diminished in size, with all of the important aspects which we mentioned in Hastings. Cf. Long v. Landy, 35 N.J. 44 (1961); Palcsey v. Tepper, 71 N.J. Super. 294 (Law Div. 1962).

We also are convinced that the fact the plaintiff was emancipated by marriage (at the age of 17) some 14 months after the accident and this suit was not commenced until some time after that event does not indicate the thesis of Hastings should be found inapplicable. The time when the suit is to be commenced in relation to other events is wholly within the control of a plaintiff, subject only to the statute of limitations. Emancipation by marriage, while a physical break-up of the former household, is neither a complete destruction nor ordinarily a hostile occurrence disruptive of the family unit in the sense of making a parent, who was allegedly merely negligent toward a child before emancipation, a changed person and a true adversary thereafter. Cf. Sanchez v. Olivarez, 94 N.J. Super. 61 (Law Div. 1967). The possibility of the breakdown of individual integrity within the family at the expense of a liability insurance carrier, spelled out and stressed in Hastings, still remains.

There has been no erosion of Hastings by subsequent decisions of this court, although we remain sharply divided in the whole field of intra-family tort immunity. Suit has been allowed where the defendant is in fact a separate entity and a stranger to the family will realistically share any liability with the family member claimed to have been negligent. Eule v. Eule Motor Sales, 34 N.J. 537 (1961). In Long v. Landy, supra (35 N.J. 44), no bar to action was found where an allegedly negligent husband was killed in the accident and the suit was against his estate by his wife who was rendered incompetent by the occurrence. All policy reasons for immunity were thus permanently rendered nugatory. Orr v. Orr, 36 N.J. 236, 238 (1961) reiterated the inter-spousal bar spelled out in Koplik v. C.P. Trucking Corp., 27 N.J. 1 (1958). See also Patusco v. Prince Macaroni, Inc., 50 N.J. 365, 369 (1967). And Heyman v. Gordon, 40 ...


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