McLaughlin, Freedman*fn* and Van Dusen, Circuit Judges. McLaughlin, Van Dusen and Rosenn, Circuit Judges. Gerald McLaughlin, Circuit Judge (dissenting).
The question presented by this diversity action for personal injuries arising out of the collision of two automobiles is whether a wife who has obtained a divorce after the accident may sue her former husband for the tort.
The accident occurred on January 21, 1966, in Cherry Hill Township, New Jersey, when an automobile driven by Marion Stanley Kapelski, in which his wife, Elizabeth M. Kapelski, was a passenger, collided with a car driven by Kathleen M. Laphan, in which her sister, Kathryn L. Laphan, was a passenger. At the time Mr. and Mrs. Kapelski were citizens of Pennsylvania. They were divorced on September 28, 1967. On November 8, 1967, Mrs. Kapelski instituted this action in the United States District Court for the District of New Jersey against her former husband who had in the meantime become a citizen of California, and the Laphan sisters who were citizens of New Jersey. On April 3, 1969, a year-and-a-half after the suit was begun, plaintiff remarried and is now known as Elizabeth M. Purcell.
Plaintiff claimed that her former husband and Kathleen M. Laphan were negligent and that Kathryn L. Laphan was liable for Kathleen's negligence under the principle of respondeat superior. The Laphan sisters cross-claimed for contribution from Mr. Kapelski and he cross-claimed for contribution from them.
On motion for summary judgment the district court held that a prior New Jersey state court judgment obtained by a passenger in the Kapelski car, who had been injured in the same accident,*fn1 had adjudicated that Mr. Kapelski was negligent and the Laphan sisters were free of negligence. The district court therefore granted the motion of the Laphan sisters to dismiss Mr. Kapelski's cross-claim. For the same reason it held that Mr. Kapelski's negligence rendered him liable to Mrs. Kapelski (Purcell) and therefore granted summary judgment in her favor, adjudging Mr. Kapelski's liability but leaving Mrs. Kapelski's (Purcell's) damages to be assessed. The district court also denied Mr. Kapelski's motion to dismiss the plaintiff's action as barred by spousal immunity, and certified under 28 U.S.C. § 1292(b) that the order denying such motion involved a controlling question of law as to which there was substantial ground for difference of opinion and that an immediate appeal from the order might materially advance the ultimate termination of the litigation. We then entered an order under Rule 5 of the Federal Rules of Appellate Procedure granting Mr. Kapelski leave to appeal.
In this diversity action the district court sitting in New Jersey was required to apply the law which the New Jersey state courts would apply. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941).
The problem posed is, therefore, the determination of which state's law New Jersey would apply in these circumstances and a construction of that applicable law.
Inter-spousal immunity in New Jersey was entwined in the related sources of the common law and early statutes.*fn2 The immunity was read as a prohibition embedded within the fabric of the common law and hence subject to the capacity for development and change characteristic of the common law.*fn3 There came about a gradual loosening of this hybrid common-law-statutory restriction, and the right to sue was recognized in an expanded area. In 1961 the Supreme Court of New Jersey held that the disability only immunizes the spouse from suit and the immunity therefore ends with a spouse's death, and that accordingly a widow could maintain a suit against her deceased husband's estate for his negligence committed during coverture.*fn4 Later, in 1967, the New Jersey courts held that they would "accept the reality of the termination of marriage by divorce as being equivalent as termination by death," and that in "either case, termination of marriage removes the interdiction against interspousal litigation."*fn5
This gradually unfolding expansion of the right to sue has culminated in Immer v. Risko, 56 N.J. 482, 267 A.2d 481 (1970), in which the court substantially overruled Koplik v. C. P. Trucking Corp., 27 N.J. 1, 141 A.2d 34 (1958), and held that the marriage of a plaintiff and defendant did not bar the maintenance of the suit already pending between them for a tort committed prior to the marriage. The facts in Immer, of course, differ from those of the present case. But there, and in the companion case of France v. A. P. A. Transport Corp., 56 N.J. 500, 267 A.2d 490 (1970), which dealt with the common law immunity of parent and child from suits against each other, the Supreme Court of New Jersey undertook to declare the law of the future in that state in regard to automobile torts involving inter-spousal and parent-child immunity on the basis of its public policy. The Immer court was not content with the prior limited exceptions on immunity which had been created by the New Jersey decisions where the circumstances were such that the relationship giving rise to the immunity no longer existed, as in the case of the death of a spouse or child. Going beyond the facts of the case before it, the court announced that in all automobile negligence actions inter-spousal immunity no longer existed. The court reasoned that automobile liability insurance made it artificial to maintain inter-spousal immunity on the theory of disruption of the domestic felicity, and that the other justification advanced in more recent times, that the rule was required to protect insurance carriers against fraud and collusion, would not withstand New Jersey's successful experience in permitting actions by guests against their hosts, an area where equal danger of collusion existed.*fn6
After carefully considering the history of the rationale underlying interspousal immunity, and its gradual erosion in the New Jersey courts, the highest court of New Jersey made it clear that as a matter of public policy it would not permit one who has been injured by the negligence of another in the operation of an automobile to be barred from obtaining redress on the ground that, when recovery in tort is sought, the parties are married or had been previously married.
As noted above, prior to Immer and France, the New Jersey courts in Sanchez v. Olivarez, 94 N.J.Super. 61, 226 A.2d 752 (1967), had recognized the right of spouses to sue each other after divorce, which is the situation presented by this record. That decision would go far in establishing the law of New Jersey that would govern in this case, assuming that New Jersey state courts would apply New Jersey law. But Immer and France represent far more fundamental changes in the view of the New Jersey courts toward inter-spousal immunity, and reveal far more clearly than Sanchez the public policy of New Jersey in this area. The broad scope of the new rules announced in Immer and France also reflects the strength of the New Jersey public policy in this area, which strength indicates that the New Jersey courts would be likely to apply this policy to any actions brought in the courts of that state in situations similar to those presented by this record.
We need not, however, rest our conclusion exclusively on our view of the strength of the New Jersey policy, and our resulting view that the New Jersey courts would likely apply their own policy in an action brought in New Jersey by foreign domiciliaries, for New Jersey has a variety of other interests at stake in cases like this. New Jersey has an interest as the situs of the accident in whatever restraining effect upon potentially negligent drivers it may attribute to an unrestricted right of action by persons injured, even though they be spouses, by the negligence of others on New Jersey's highways. Also, New Jersey has an interest in protecting any New Jersey doctors and hospitals who may have extended treatment to the plaintiff following the accident, and who may have to look to plaintiff's recovery for their remuneration. In addition, had the Laphan sisters not already been adjudicated free from negligence, New Jersey would have an interest in protecting their right of contribution since they are its citizens, a right which would be jeopardized if the defendant spouse's motion to dismiss the main action were granted.
We believe that a New Jersey state court would apply the law of New Jersey in this case on the ...