This matter comes before the court on the defendants' motion to bring in the husband of the plaintiff as a third-party defendant for purposes of establishing liability over to the defendant under the new Joint Tortfeasors Contribution Law (L. 1952, c. 335, p. 1075; N.J.S.A. 2 A:53 A -1 to 5):
"An Act establishing the right of contribution among joint tortfeasors
Be it enacted by the Senate and General Assembly of the State of New Jersey
1. For the purpose of this act the term 'joint tortfeasors' means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them. A master and servant or principal and agent shall be considered a single tortfeasor.
2. The right of contribution exists among joint tortfeasors.
3. Where injury or damage suffered by any person as a result of the wrongful act, neglect or default of joint tortfeasors, and the person so suffering injury or damage recovers a money judgment or judgments for such injury or damage against one or more of the joint tortfeasors, either in one action or in separate actions, and any one of the joint tortfeasors pays such judgment in whole or in part, he shall be entitled to recover contribution from the other joint tortfeasor or joint tortfeasors for the excess so paid over his pro rata share; but no person shall be entitled to recover contribution under this act from any person entitled to be indemnified by him in respect to the liability for which the contribution is sought.
4. This act shall apply to all actions for contribution commenced, and to all judgments recovered, after the effective date hereof irrespective of the time of the commission of the wrongful act or acts by the joint tortfeasors; provided, that it shall not apply with respect to payments made prior to the effective date hereof.
5. This act shall be known and may be cited as the 'Joint Tortfeasors Contribution Law.'
6. This act shall take effect immediately.
Approved and effective June 18, 1952."
This is a suit by the plaintiff wife for personal injuries arising out of an automobile accident, wherein she was a passenger in her husband's car which he was operating when the same was in collision with a vehicle owned and operated by the defendants.
The husband did not join per quod and for incidental expenses.
Plaintiff does not question the procedure being employed by the defendants under the rules of court (Rule 3:14-1) to bring in as a third-party defendant -- a joint tortfeasor -- except where a husband and wife relationship as such exists.
The very serious question on this motion is one of substantive law, not procedure. It goes to the fundamental question whether under the joint tortfeasors statute the husband is in fact a "joint tortfeasor," and then if he is, can
he still be made a party without violating fundamental concepts as to the unity of husband and wife in matters of litigation, as well as the preservation of peace and felicity between them.
As to the common law in the State existing before the enactment of the Joint Tortfeasor Contribution Law:
"Under well settled principles, where there are two or more joint tort-feasors, an action may be instituted against any one or more of them and, if against several, one defendant alone may be held liable if the proofs justify it regardless of the finding as to the others, and if several are found liable there is no right of contribution and the jury may not apportion the damages among them." Citing many cases therein set forth -- Malinauskas v. Public Service Interstate Transportation Company , 6 N.J. 269, at p. 274 (1951).
This was the law up to the time of passage of L. 1952, c. 335, approved and effective June 18, 1952, establishing the right of contribution among joint tortfeasors.
A HUSBAND IS NOT A JOINT TORTFEASOR WITHIN THE MEANING OF THE STATUTE.
The statute in question, in particular section 1 which has to do with definitions reads as follows:
"the term 'joint tortfeasors' means two or more persons jointly or severally liable in tort for the same injury to person or property, * * *."
The statute by its terms makes the first requirement for joinder that the person sought to be joined is one " liable in tort " for the injury or damage to the plaintiff. This statute, of course, has only been effective in New Jersey since June 18, 1952, and apparently there has been no reported opinion on the same at this time. Nonetheless, the Legislature by this statute imposed a strict test -- that there must be liability in tort , before the statute can become operative. This, of course, depends upon substantive law as it exists. In other words,
this new statute does not create causes of action, that is, liability in tort, where it did not exist before. It merely creates a right to contribution among those who were liable in tort before.
The case of Hudson v. Gas Consumers' Association , 123 N.J.L. 252 (E. & A. 1939), is instructive in a somewhat similar situation, to the effect that even under the Married Woman's Act the wife does not have a cause of action in tort against her husband. In the cited case the wife was injured while a passenger in an automobile operated by her husband who was the agent of the defendant company which owned the car, and he was driving at the time of the accident on the company's business. She sued her husband's employer for the injuries received, predicated on her husband's negligence as the agent of the employer. The trial court dismissed the action on the ground that the immunity of the husband extended to his employer. On this ...