Speakman, J.c.c. (temporarily assigned).
Plaintiff Eleanor M. Douglas, an infant, was riding in a car owned by defendant Ellen C. Sheridan and operated by defendant Robert W. Sheridan, an infant, on January 11, 1953 on Grafton Avenue near Oraton Street in Newark, New Jersey. The defendants' car collided with a car owned by Mary Davis and operated by Robert Davis resulting in injury to the plaintiff. On March 4, 1953 the plaintiffs instituted this action against the defendants alleging that as a result of their negligence the plaintiff was injured. In their answer defendants deny the allegations of negligence and allege that the collision was caused by the negligence of Robert Davis. The defendants then filed this motion wherein they seek as third-party plaintiffs to join Robert and Mary Davis as third-party defendants under Rule 3:14-1 by virtue of the provisions of the Joint Tortfeasors Contribution Law.
Prior to June 18, 1952, the effective date of the Joint Tortfeasors Contribution Law, L. 1952, c. 335, p. 1075, N.J.S. 2 A:53 A -1 et seq. , our courts adopted the rule generally applied elsewhere that there could be no contribution or indemnification between joint tortfeasors. Malinauskas v. Public Service Interstate Transp. Co. , 6 N.J. 269 (1951); Frank Martz Coach Co., Inc., v. Hudson Bus, &c., Co. , 23 N.J. Misc. 342 (Sup. Ct. 1945); Cosgrove v. Ellenstein , 114 N.J.L. 155 (E. & A. 1935); Universal, &c., Ins. Co. v. Caltagirone , 119 N.J. Eq. 491 (E. & A. 1936); Price v. Greenway , 167 F.2d 196 (3 Cir. , 1948). See 13 Am. Jur.,
Contribution, sec. 37. It was accordingly held that a joint tortfeasor could not be a person "who is or may be" liable to the defendants and consequently could not be joined as a third party under Rule 3:14-1. Malkin v. Parsons , 7 N.J. Super. 318 (Cty. Ct. 1949). See Smith, Pleadings and Motions , in Schnitzer, The New Practice , 57 (1949).
Section 3 of the Contribution Law provides:
"Where injury or damage is 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."
and section 1 provides that "'joint tortfeasors' means two or more persons jointly or severally liable * * *, whether or not judgment has been recovered against all or some of them." Obviously, under our act, there need not be a joint judgment before the right to contribution arises. See Commissioners' Note, section 1, Uniform Contribution Among Tortfeasors Act , 9 U.L.A. 156.
"A defendant may move, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." (Italics supplied.)
Since "may be" is equivalent to "possibly" or "probably" as distinguished from "certainty" (Webster's New International Dictionary (2 d ed. 1949), 1517), it would appear that the defendants are only required to show that there is a probability or possibility of liability to them from the third party in order to join the alleged joint tortfeasors as third-party defendants. See Buckner v. Foster , 105 F. Supp. 279 (D.C. Mich. 1952). Compare Brown v. Cranston , 132 F.2d 631, 148 A.L.R. 1178 (2 Cir. , 1942), certiorari denied, Cranston v. Thompson , 319 U.S. 741, 63 S. Ct.
1028, 87 L. Ed. 1698 (1943), with Knell v. Feltman , 85 U.S. App. D.C. 22, ...