On certified appeal to the Appellate Division of the Superior Court from the Passaic County District Court.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Heher, J.
Plaintiff asserts the right of contribution established by the Joint Tortfeasors Contribution Law of 1952. L. 1952, c. 335, p. 1075; N.J.S. 2 A:53 A -1 et seq.
On January 14, 1953 one Ierly was given judgment in the Passaic County District Court against the plaintiff in the present action, Sattelberger, for $426.32, including costs, on a jury verdict in an action in tort for negligence. Sattelberger satisfied the judgment by payment made January 20 ensuing, and now, by this action in the same court, seeks to enforce contribution under the cited statute against the defendant Telep on the hypothesis of a joint liability.
By an amendment of the complaint entered November 19, 1952, Telep was made a party defendant to the action brought by Ierly. The City of Clifton was also named as a defendant. Telep made demand for a trial by jury; but in the course of the trial the court dismissed the action as to him on the ground, it is said, that as to him the amended complaint did not state a cause of action. There was no formal order of dismissal, and there is no stenographic transcript of the proceedings. The trial proceeded as to Sattelberger and eventuated in the judgment which forms the basis of the present action. The docket entries made in the cause reveal the dismissal of the action "as to City of Clifton and Andrew Telep," without more. The amended complaint named Telep as a party defendant in the caption, but only Sattelberger was charged with negligence; there was no averment whatever of negligence attributable to Telep, nor was any other cause of action laid to him, and the complaint was therefore fundamentally deficient as to him. On June 10, 1953 Judge Ward, who presided at the trial, by a formal order entered in the cause, directed that "the records" of the court in the cause "be amended to set forth that the dismissal of the amended complaint * * * as to defendant Andrew Telep entered on the 14th day of January, 1953, was 'without prejudice'"; and accordingly a docket entry to that effect was made June 12 ensuing.
But in the meantime, on April 29, 1953, there was a dismissal of the present contribution action against Telep "for failure to state a cause of action based upon the Joint Tortfeasors Act of 1952." The rationale of that determination, as disclosed by the stenographic transcript of the proceedings, was that since the record shows that the tort action was dismissed as to Telep, and there was judgment against Sattelberger alone, the Contribution Law has no application. It was considered that "once a party has been made a defendant to a suit and the action against that defendant has been dismissed," the Contribution Law would not apply. It was not deemed significant that the dismissal was rested upon the failure of the complaint to declare a cause of action;
it sufficed that there was an "adjudication made in the trial of the case as to Telep," even though not on the merits; the act was not designed, it was said, to give a right of action against Telep "after the action in which Telep was a defendant was dismissed," but only to cover cases where there was "a judgment against two defendants who were joint tortfeasors" -- the law cannot reasonably be read as permitting a right of action against a "third party not brought into the suit in the original instance," or "to subject one to defend two suits," whether the dismissal "was with or without prejudice." And this was the case even though the plaintiff Sattelberger had petitioned for leave "to file a third party complaint * * * as against Telep under" the new Contribution Law. As to this, the clerk notified counsel that pursuant to action taken at "a Judges' conference on June 18th," he was directed to "advise that counterclaim be filed or new suit started and consolidated."
On June 22, 1953 the order made by Judge Ward directing an amendment of the record to set forth a dismissal of the complaint without prejudice was brought to the attention of the judge who dismissed the present action; but in the latter's understanding of the statute this obviously could have no bearing or relevance.
The dismissal of the complaint in the present action was predicated upon a misconception of the essential quality and meaning of the Contribution Law.
Section I of the act, N.J.S. 2 A:53 A -1, defines "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," save that a master and servant or principal and agent shall be deemed "a single tortfeasor" for the purposes of the act. Section 3, N.J.S. 2 A:53 A -3, provides that where injury or damage is suffered by any person through the wrongful act, neglect or default of joint tortfeasors,
and the injured person recovers a money judgment 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 the judgment in whole or in part, he shall be entitled to contribution "from the other joint tortfeasor or joint tortfeasors for the excess so paid over his pro rata share," provided that no person shall have the right of contribution "from any person entitled to be indemnified by him in respect to the liability for which the contribution is sought." Thus, by clear and explicit terms the failure of judgment against Telep in the original proceeding establishing Sattelberger's tortious act does not, of itself, bar the right of contribution among joint tortfeasors ordained by the statute. The dismissal was not on the merits and, moreover, it was not an adversary proceeding between Sattelberger and Telep. The judgment does not operate as a bar to the charge of joint wrongdoing now laid to Telep.
It is urged that the dismissal of the principal action as to Telep is conclusive and of unimpeachable finality under Rule 3:41-2, now R.R. 4:42-2, ordaining that, unless otherwise ordered or provided for by rule, a dismissal other than for want of jurisdiction shall operate as "an adjudication upon the merits," and Rule 3:60-1, now R.R. 4:62-1, authorizing the correction by the trial court, on its own initiative or on the motion of a party, after notice, of clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission, save "during the pendency of an appeal." It is said that since the original dismissal did not have the saving clause "without prejudice," the defendant Telep properly rested "under the assumption that the action had been dismissed against him once and for all," and the subsequent alteration of the order of dismissal was ...