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Pennsylvania Greyhound Lines Inc. v. Rosenthal

Decided: January 11, 1954.


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.


The action is for contribution under the Joint Tortfeasors Contribution Law of 1952. L. 1952, c. 335, p. 1075, N.J.S. 2 A:53 A -1 et seq.

These are the circumstances: On October 22, 1950 Wynne Goldstein suffered personal injury as the result of a collision of an automobile operated by the defendant Irving Rosenthal and a motor bus of the plaintiff Pennsylvania Greyhound Lines, Inc. She was an occupant of Rosenthal's automobile, at his invitation. On May 22, 1951 she brought suit in the Superior Court against Rosenthal and the owners of the automobile and Greyhound and one Miller, the operator of its bus; and there was a verdict of $21,000 against Rosenthal, Greyhound and Miller, and judgment thereon March 26, 1952. There was judgment at the trial dismissing the owners of the Rosenthal vehicle; and they dropped out of the case. Greyhound and Miller appealed to the Appellate Division, and on April 9, 1952 posted a surety bond of $23,000, conditioned for the payment of the judgment and costs should the appeal be dismissed or the judgment affirmed. The bond made provision for its enforcement against the principal and surety by a motion served on the clerk of the court. The judgment was affirmed by the Appellate Division; and thereafter, on December 19, 1952, Greyhound and Miller paid the judgment and costs to the plaintiff Goldstein, and a warrant of satisfaction was entered reciting that payment was received from Greyhound and Miller only.

On June 18, 1952, pending the appeal, and after the filing of the supersedeas bond, the cited Joint Tortfeasors Contribution Law was enacted; and on January 14, 1953 this action for contribution under that law was begun. On February 1, 1953 the judgment plaintiff Goldstein and the defendant Rosenthal were married, and the marriage still subsists. Rosenthal answered that the Contribution Law could not be constitutionally read as operative retroactively to include this case, and by reason of his marriage to the judgment plaintiff, he "is not a 'joint tortfeasor'" within

the intendment of the Contribution Law, and so is not subject to this action for contribution.

There were counter-motions for summary judgment. Defendant's motion was denied; his defenses were stricken, and there was summary judgment for plaintiff on June 12, 1953. Defendant thereupon appealed, pursuant to leave granted by the Appellate Division under Rule 4:2-2(b), now R.R. 2:2-3(b), and the appeal was certified here on our own motion.


These basic points are made in limine: (a) the Contribution Law "does not apply retroactively to judgments entered prior to its adoption"; and (b) a "retroactive application" of the act would destroy a "vested right" secured to defendant under Article I, paragraph 1 of the State Constitution of 1947 and the Fourteenth Amendment to the Federal Constitution.

More specifically, it is said that the statute gives rise to a "substantive" right not known to the common law, and since the plaintiff herein had no right of action against the defendant Rosenthal "as of the time of the accident, as of the time of the trial, as of the time of the judgment, and as of the time of the filing of the supersedeas bond," the defendant "was guaranteed a right of repose in connection with any claim or potential claim for contribution by the plaintiff" and "this freedom from liability, although negative in nature," is "a vested right under existing law" which is proof against retroactive legislative interference under the cited constitutional limitations.

The case of State by Parsons v. Standard Oil Co., 5 N.J. 281 (1950), is invoked for the thesis that, in respect of the plaintiff in this action, "the defendant had a fully vested right to be free from any claim for contribution," and if the act be given retrospective application "it removes this vested right and is unconstitutional."

The act ex vi termini embraces antecedent joint tortious acts or omissions, but it does ...

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