Jayne, Stanton and Hall. The opinion of the court was delivered by Jayne, S.j.a.d.
[31 NJSuper Page 358] A brief precursory statement will disclose the single specific question presented for decision. The point of the question is essentially one of law.
On September 19, 1951 the plaintiff Joseph Farren suffered bodily injuries while participating as the employee of one Ralph Cornell, in the construction of a bridge across a turnpike at or near Swedesboro. He instituted an action to recover compensatory damages in which he alleged that his injuries and consequential losses were proximately caused by the concurrent and cooperative negligence of the defendants New Jersey Turnpike Authority and Atlantic City Electric Company.
In addition to answering the complaint, the electric company, by leave of court, caused process to issue and a third-party complaint to be served upon Cornell, who was, as previously stated, the employer of the plaintiff at the time of the occurrence of the mishap. The third-party complaint contained two counts, the first of which alleged that the injurious mishap encountered by the plaintiff was proximately occasioned by the negligence of Cornell, concluding:
"WHEREFORE, the defendant and third party plaintiff, Atlantic City Electric Company, demands that the third party defendant, Ralph Cornell, be adjudicated the party whose sole negligence caused the accident in question, or in the alternative, if it is determined that the third party plaintiff, Atlantic City Electric Company, was negligent, it be adjudicated that the third party defendant, Ralph Cornell, was jointly negligent and that his joint negligence concurred with the negligence of the third party plaintiff."
The second count alleged that there was an implied agreement obligating Cornell to indemnify the electric company against its liability, if any, to the plaintiff Farren.
In response a motion was made on behalf of Cornell, the third-party defendant, for a summary judgment in his favor. R.R. 4:58-3. At the hearing of the motion the electric company did not endeavor in any wise to support the alleged existence of any implied agreement for indemnification as alleged in the second count of the third-party complaint. The court concluded that there was no genuine issue challenging any material fact and that since the undisputed proof disclosed that Cornell was an employer whose sole liability
to the plaintiff arose from the provisions of the Workmen's Compensation Act with which he is complying, the first count of the third-party complaint failed as a matter of law to allege a cause of action for which relief could be granted. Judge Woods adhered to his previous decision in Yearicks v. City of Wildwood , 23 N.J. Super. 379 (Law Div. 1952).
The legal propriety of the resultant summary judgment is sought here to be impugned by the insistence that a tortfeasor who is liable to an injured person may have contribution by virtue of the terms of the Joint Tortfeasors Contribution Act of 1952 from an employer of the injured person, where the employer's negligence has contributed to the injury, notwithstanding the fact that the employment was embraced by the elective compensation provisions of the Workmen's Compensation Act.
Our attention is thereby immediately drawn to the statute allowing contribution between joint tortfeasors. N.J.S. 2 A:53 A -1. True, the statute declares that the right of contribution exists among joint tortfeasors, but the statute itself definitely elucidates the intended meaning to be ascribed to the term "joint tortfeasors" to be "two or more persons jointly or severally liable in tort for the same injury to person or property * * *."
It is evident that contribution is enforceable under the statute only against a joint tortfeasor as therein defined. Sattelberger v. Telep , 14 N.J. 353, 367 (1954); ...