On certified appeal to the Appellate Division from the Law Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Heher, J. Jacobs, J. (concurring). Justice Brennan joins this opinion. Jacobs and Brennan, JJ., concurring in result.
The question here is whether a tortfeasor may have contribution under the Joint Tortfeasors Contribution Law of 1952, N.J.S. 2 A:53 A -1, from a joint participant in the tortious act or omission, for the injurious consequences of the wrong to the wife of the joint wrongdoer.
The inquiry was answered in the negative by the Superior Court; there was summary judgment for defendant in this action for contribution.
The subject matter of the action is a judgment in tort for negligence recovered by Viola Camp against the plaintiffs herein, Benjamin Kennedy and Harriet C. Kennedy. On October 6, 1951 an automobile owned by Benjamin Kennedy, and driven by his wife, Harriet C., and a like vehicle operated by the defendant William V. Camp collided at the intersection of Greentree Road and Pitman-Downer Road in Washington Township, Gloucester County. Camp's wife, the judgment plaintiff, was an occupant of her husband's automobile, and the judgment is for the personal injury she sustained as a result of the collision. Her husband joined in the action, per quod and to recover the damage to his automobile. The plaintiff Benjamin Kennedy interposed a counterclaim for the damage to his vehicle. The jury disallowed the claims of Kennedy and Camp, presumably on the ground that the collision was the result of their joint or concurring negligence. Viola Camp was awarded $5,000, and the consequent judgment was satisfied by the judgment defendants by payment made November 3, 1952. This action for contribution was commenced December 23 ensuing, on the hypothesis
that the judgment defendants, the plaintiffs herein, and the defendant William V. Camp are joint tortfeasors within the intendment of the Contribution Law. But this evinces a fundamental misconception of the law.
The statutory right of contribution is founded on a common liability in tort; and there is none such here. Joint or several liability to the injured judgment plaintiff for the tortious conduct, enforceable by action, is a substantive element of the right. Sattelberger v. Telep, 14 N.J. 353 (1954). The wrongdoers must act together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury. Matthews v. Delaware, L. & W.R.R. Co., 56 N.J.L. 34 (Sup. Ct. 1893). The Contribution Law, N.J.S. 2 A:53 A -1, defines the term "joint tortfeasors" as "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." The right of contribution, N.J.S. 2 A:53 A -3, comes into being when injury or damage is suffered by any person in consequence of "the wrongful act, neglect or default of joint tortfeasors," as so defined, and the injured person 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 seperate actions, and any one of the joint tortfeasors pays such judgment in whole or in part"; the recovery is to be had from "the other joint tortfeasor or joint tortfeasors for the excess so paid over" the payor's "pro rata share."
It is an ancient rule of the common law that a tort committed by one spouse against the person or character of the other is not remediable by action. Thompson v. Thompson, 218 U.S. 611, 31 S. Ct. 111, 54 L. Ed. 1180 (1910); Libby v. Berry, 74 Me. 286 (Sup. Jud. Ct. 1883); David v. David, 161 Md. 532, 157 A. 755, 81 A.L.R. 1100 (Ct. App. 1832); Kaczorowski v. Kalkosinski, 321 Pa. 438, 184 A. 663, 104 A.L.R. 1267 (Sup. Ct. 1936). The ground of this commonlaw immunity is the legal identity of husband and wife. If a wife receives bodily injury from the hands
of her husband, he is liable to criminal proceedings for a felony or misdemeanor, as the case may be; and in the case of an ordinary assault it is quite clear that the wife has a right for her protection to obtain articles of the peace against her husband, and upon this and other occasions she is in law a separate person. But a wife cannot sue her husband for beating her during coverture, even after divorce. This is not a "difficulty as to parties, * * * but a requirement of the law founded upon the principle that husband and wife are one person. * * * The reason * * * why the wife cannot sue the husband for beating her must be because they are one and the same person, and the same reason exists in criminal law, where a woman cannot be convicted of larceny though she has in fact carried away her husband's goods. Other instances might easily be given, all showing that the reason is not the technical one of parties, but because, being one person, one cannot sue the other"; there "was no cause of action during coverture," and the "dissolution of the marriage does not give one." Phillips v. Barnet, 1 Q.B.D. 436 (1876), Blackburn, J. The principle has its roots in the strongest considerations of public policy -- i.e. the maintenance of marital unity, peace and felicity. By marriage, the husband and wife at common law become one person: That is, says Blackstone (1 Blackstone's Com. 442), "the very being or legal existence of the woman is suspended" during the marriage, or at least is "incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs everything; * * * and her condition during her marriage is called her coverture." Vide Den ex dem. Hardenbergh v. Hardenbergh, 10 N.J.L. 42, 43 (Sup. Ct. 1828). The commonlaw rule obtains in New Jersey, unmodified by statute. Hudson v. Gas Consumers Association, 123 N.J.L. 252 (E. & A. 1939). See, also, Bendler v. Bendler, 3 N.J. 161 (1949); Leith v. Horgan, 13 N.J. 467 (1953).
The doctrine is generally sustained on the "sociological and political ground that it would introduce into the home, the basic unit of ...