For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Proctor and Schettino. For affirmance -- Justices Francis, Hall and Haneman. The opinion of the Court was delivered by Proctor, J. Francis, J. (dissenting). Justices Hall and Haneman join in this dissent.
This case deals with the question of responsibility for injuries to one's spouse caused by the negligent operation of a motor vehicle.
On April 7, 1968, an automobile operated by the defendant Henry P. Risko collided with another automobile driven by the defendant Thomas A. Simonsen. The plaintiff, the former Rosalyn Immer, was a passenger in Risko's automobile and she brought a negligence suit against both Risko and Simonsen. The latter then cross-claimed against Risko for contribution under the Joint Tortfeasors Contribution Law. N.J.S.A. 2A:53A-1 et seq. Sometime after the suit was instituted the plaintiff and Risko were married. Risko then moved for summary judgment against the plaintiff and against the co-defendant, Simonsen, on the ground that the action and the cross-claim were barred by the doctrine of interspousal immunity. The motion was granted. On plaintiff's appeal,*fn1 the Appellate Division affirmed in an unreported opinion. That court felt compelled to follow our decision in Koplik v. C.P. Trucking Corp., 27 N.J. 1 (1958). We granted plaintiff's petition for certification. 55 N.J. 451 (1970).
On this appeal plaintiff urges that the doctrine of interspousal immunity is "outmoded" and should be discarded.
She also argues that if we continue to apply the immunity doctrine we should at least reverse Koplik, supra, which held that the immunity doctrine applies to prenuptial torts. In view of our resolution of the first issue, we need not reach plaintiff's second contention.
At common law, a husband and wife were regarded as one, the legal existence of the wife being merged with that of the husband. Thus, one spouse was precluded from maintaining an action against the other at law or equity for wrongful conduct whether intentional or negligent. 1 Blackstone Commentaries 442. See Kennedy v. Camp, 14 N.J. 390, 396 (1958); Prosser, The Law of Torts 879-80 (3d ed. 1964). In accord with the majority of jurisdiction, the courts of this State have continued to apply this common law immunity in negligence actions. E.g., Kennedy v. Camp, 14 N.J. 390 (1954); Koplik v. C.P. Trucking Corp., supra. We have done so despite a mounting wave of criticism by all the leading commentators on the subject. E.g., Albertsworth, "Recognition of New Jersey in the Law of Torts," 10 Calif. L. Rev. 461 (1922); McCurdy, "Torts Between Persons in Domestic Relations," 43 Harv. L. Rev. 1030 (1930); McCurdy, "Personal Injury Torts Between Spouses," 4 Vill. L. Rev. 303 (1959); 1 Harper & James, Torts 645-46 (1956); Prosser supra at 879-890. The above authorities and numerous others have been cited in the dissenting opinions of Justice Jacobs in Koplik v. C.P. Trucking Corp., supra, 27 N.J. at 13-22 and Heyman v. Gordon, 40 N.J. 52, 55-60 (1963), and there is no purpose in repeating the list here. An increasing minority of courts in other jurisdictions have abandoned complete interspousal immunity. Dean Prosser lists 19 jurisdictions as having adopted the "minority rule." Prosser at 885. Since his list was compiled, Utah has reverted to its earlier position of denying such suits, Rubalcava v. Gisseman, 14 Utah 2 d 344, 384 P. 2 d 389 (1963), overruling Taylor v. Patten, 2 Utah 2 d 404, 275 P. 2 d 696 (1954), and Minnesota has adopted the minority rule, Beaudette v. Frana, 285 Minn. 366, 173 N.W. 2 d 416
(1969). Although the number of courts opposing the immunity doctrine appears to be growing, our own decision on this matter will not be predicated on a trend in one direction or the other, but on our own view of the policies involved. Since 1958 this Court has been closely divided on the issue. See Koplik v. C.P. Trucking Corp., supra; Orr v. Orr, 36 N.J. 236, 238 (1961). The writer of this opinion has joined with the majority in affirming the continuing validity of the immunity doctrine. For the reasons which follow, I have changed my mind and now believe that the immunity doctrine, at least so far as it applies to automobile negligence cases, has no place in our modern society.
The doctrine of interspousal immunity had its early roots in the common law unity concept mentioned above. This fictitious concept was largely dissipated by the widespread enactment of "Married Women's Acts" in the mid-nineteenth century. These acts were designed primarily to secure a married woman a separate legal identity and to grant her some of the rights theretofore denied her at common law. McCurdy, "Torts Between Persons in Domestic Relations," supra at 1036-50. New Jersey's Married Persons' Act accords generally with the legislation of other states. See N.J.S.A. 37:2-1 et seq. However, it contains the following provision:
"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." N.J.S.A. 37:2-5.
The meaning of this provision has been the subject of numerous decisions. See Koplik v. C.P. Trucking Corp., supra, 27 N.J. at 4-7, and cases cited therein. In Kennedy v. Camp, supra, this Court held that the above provision did not alter the common law unity of interests of the spouses and hence a husband would not be liable to his wife for injuries caused by his negligent driving of an automobile. Id., 14 N.J. at 397. Kennedy did not hold that the provision
required application of the immunity doctrine but merely that the common law continued unchanged.*fn2 This reasoning was in accord with earlier cases which held that that provision did not disturb the common law. Hudson v. Gas Consumers' Assn., 123 N.J.L. 252, 253 (E. & A. 1939); Freitag v. Bersano, 123 N.J. Eq. 515, 516 (Ch. 1938); Drum v. Drum, 69 N.J.L. 557, 558 (Sup. Ct. 1903). In Koplik, supra, however, this Court held in a four to three decision that "the common law interspousal negligence tort immunity has been perpetuated [by N.J.S.A. 37:2-5], and that it has been made a part of our statutory law as well." 27 N.J. at 6. Writing for the minority, Justice Jacobs strongly objected to this construction of the statute and expressed his opinion that there was nothing in the provision which either expressly or impliedly incorporated the common law immunity doctrine into the statutory law of the State. In his view the provision merely left the common law "intact with its inherent capacity for later judicial alteration." Id. at 18-19.
Three years later, in Long v. Landy, 35 N.J. 44 (1961), this Court was faced with the question of whether a wife could sue her husband's estate for injuries she received as a result of the decedent's negligent operation of an automobile. In a unanimous decision we held that recovery should not be barred by the immunity doctrine after the death of the tortfeasor spouse. Justice Haneman, writing for the Court, noted that although torts did not survive the tortfeasor at common law, such actions were now permitted by statute. N.J.S.A. 2A:15-1. Therefore, the provision in the Married Persons' Act which dealt with the common law did not contemplate such a suit. But more importantly,
the Court construed N.J.S.A. 37:2-5 not as freezing the common law immunity doctrine, but as serving "solely to incapacitate or disable a wife from suing her tortfeasor mate during the existence of the reasons which underlie the common law doctrine. (emphasis added). "Id. at 50-51. The Court also noted that "when the policy behind a rule no longer exists the rule should disappear." We would, of course, not have the option of examining the reasons behind the rule or even whether the reasons should apply to a particular case if the immunity were mandated by statute. Thus, we held that the common law immunity doctrine was not rigidly incorporated into our statutory law; immunity should apply only where the reasons for its existence continue. It seems clear that Long v. Landy undercuts Koplik's theory of incorporation. Long v. Landy tells us that when the reasons for the immunity are absent, a cause of action should be recognized and enforced by our courts. In other words, the statute did not incorporate immunity, but rather the common law with its inherent capacity for change. And the Court in Long recognized this capacity for change. In noting that the immunity rule "should disappear" when the policy behind it no longer exists, it quoted Chief Justice Vanderbilt's often repeated statement in State v. Culver, 23 N.J. 495, 505 (1957), cert. denied 354 U.S. 925, 77 S. Ct. 1387, 1 L. Ed. 2 d 1441 (1957) regarding the fluidity of the common law:
"The nature of the common law requires that each time a rule of law is applied it be carefully scrutinized to make sure that the conditions and needs of the times have not so changed as to make further ...