Conford, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D.
Plaintiff Michael Tomkovich, Jr. appeals from a judgment in favor of defendants, Public Service Coordinated Transport and Frank Mucaro, on a counterclaim for contribution under N.J.S. 2 A:53 A -1 et seq. , the Joint Tortfeasors Contribution Law, entered on October 8, 1959 by the Essex County District Court.
On November 17, 1957 an automobile owned and operated by Tomkovich was involved in a collision with a Public Service bus operated by defendant Mucara. As a result of said accident Janet Borg, an invited passenger in the Tomkovich automobile at that time, sustained personal injuries. Subsequently, Janet Borg and Tomkovich were married. Janet thereafter instituted suit against defendants herein, and her husband sued per quod. Defendants, alleging contributory negligence on the part of Tomkovich, counterclaimed against him for contribution. A motion to dismiss the counterclaim was denied.
After trial, the jury returned a verdict against defendants in favor of Janet Borg Tomkovich in the amount of $1,200
and against her husband on defendants' counterclaim, concluding that he had been guilty of contributory negligence.
We are confronted with a new facet of the problem of interspousal immunity under the Joint Tortfeasors Contribution Law, N.J.S. 2 A:53 A -1 et seq. The specific question raised by the present appeal is whether the marriage of Janet Borg and Michael Tomkovich, Jr. after the occurrence of the accident but before the institution of suit for damages arising therefrom bars a counterclaim for contribution on behalf of the defendants as against Tomkovich, the husband.
At the outset, the well-established, though oft-criticized, common-law rule that one spouse may not, during coverture, maintain an action against another for either an antenuptial tort, Koplik v. C.P. Trucking Corp. , 27 N.J. 1 (1958), or a postnuptial tort, Kennedy v. Camp , 14 N.J. 390, 395 (1954) -- see Bendler v. Bendler , 3 N.J. 161 (1949), must be recognized. This is bottomed upon both the legal identity of husband and wife and the "sociological and political ground that it would introduce into the home, the basic unit of organized society, discord, suspicion and distrust, and would be inconsistent with the common welfare." Kennedy v. Camp, supra , 14 N.J. , at page 396.
Our Supreme Court has had before it two cases concerning contribution from a spouse of a plaintiff who allegedly was a joint tortfeasor, involving, however, situations different on the facts from those sub judice, Pennsylvania Greyhound Lines, Inc. v. Rosenthal , 14 N.J. 372 (1954); Kennedy v. Camp, supra. These cases, in the light of the expanded concept of interspousal immunity reflected by the Koplik case, supra , point to the correct solution here.
It is well to keep in mind several fundamental rules concerning joint tortfeasors' liability under the statute while analyzing Pennsylvania Greyhound and Kennedy. The right to contribution under the statute is an inchoate right arising upon the commission of joint tortious conduct and becomes consummate and enforceable by one of the tortfeasors
when payment is made by him beyond his pro rata share of a judgment arising out of such tortious conduct. Sattelberger v. Telep , 14 N.J. 353 (1954). And it is an essential element of recovery under the statute that the parties be " joint wrongdoers under a joint or several liability to the injured person for the injurious consequences of the wrongful act, neglect or default reduced to judgment." (Emphasis supplied.) In short, the "very essence of the action of contribution is 'common liability.'" Kennedy v. Camp, supra , 14 N.J. , at pages 397, 399. Cf. Adler's Quality Bakery v. Gaseteria, Inc. , 32 N.J. 55 (1960).
In Pennsylvania Greyhound , Wynne Goldstein suffered personal injury as the result of a collision between the automobile operated by the defendant Irving Rosenthal, in which she was riding as an invited passenger, and a motor bus owned by the plaintiff Pennsylvania Greyhound. On May 22, 1951 she brought suit in the Superior Court against Rosenthal, the owners of the automobile in which she was riding, Pennsylvania Greyhound, and one Miller, the operator of the bus. There was a verdict of $21,000 against Rosenthal, Pennsylvania Greyhound and Miller, and judgment thereon March 26, 1952. The judgment entered at the trial dismissed the owners of the Rosenthal vehicle, and they dropped out of the case. Pennsylvania 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 Appellate Division affirmed the judgment, and Pennsylvania Greyhound and Miller paid the judgment and costs to Goldstein on December 19, 1952. On January 14, 1953 Pennsylvania Greyhound brought action against Rosenthal for ...