On motion to add third-party defendant.
On May 11, 1960 the plaintiff Regina Chosney was a passenger in a motor vehicle being operated by her unemancipated infant son, which vehicle collided with a vehicle owned by the defendant Charles Konkus and operated by the defendant Allan Konkus. As a result of this collision, plaintiff allegedly suffered certain injuries and on September 7, 1960 instituted this action for damages. She was joined in the complaint by her husband, Frank Chosney, who sues per quod.
The defendants now apply to this court for an order granting them leave to file and serve a third-party complaint upon the unemancipated infant son therein seeking contribution under the Joint Tortfeasors Contribution Law, N.J.S. 2 A:53 A -1, et seq. Parenthetically, it is here noted that the proposed third-party complaint alleges nothing more than simple negligence.
The only issue to be decided here is whether or not, in a case of simple negligence, a tortfeasor may seek contribution in the same action from an alleged joint tortfeasor, where the latter is the unemancipated infant son of the plaintiffs.
In opposition to this motion, the plaintiffs rely upon the cases of Cafaro v. Cafaro , 118 N.J.L. 123 (E. & A. 1937), reversing 14 N.J. Misc. 331 (Sup. Ct. 1936); Kennedy v. Camp , 14 N.J. 390 (1954); Tomkovich v. Public Service Coord. Transp. , 61 N.J. Super. 270 (App. Div. 1960); and Hastings v. Hastings , 33 N.J. 247 (1960).
The defendants concede frankly that they have found no case which squarely supports their position. Nonetheless, they contend that the cases cited by the plaintiffs are distinguishable in that they either deal with direct actions between the parents and unemancipated children, or with the husband and wife disability as treated in cases involving the Joint Tortfeasors Contribution Law, supra.
In urging that their motion be granted, the defendants have said, in effect, that this is not the case where immunity would lie since as a third-party defendant there is not the willfulness of decision on the child's part to enter the action. It is advanced that this is not therefore the usual parent-child case and that the matter should be examined in that light.
The thesis that we are here dealing with a factual situation obviating the necessity for invoking immunity from suit does not consider that the unemancipated child's liability to the parents is sought to be contested herein with the same force and vigor as if he were the sole party defendant. It seems to me that the attempt to differentiate on the basis of status here merely creates a distinction without substantial difference.
While it is true, as the defendants urge, that in Kennedy v. Camp, supra , an action against a joint-tortfeasor husband was dismissed because of the statutory immunity which surrounds the principals to the marriage contract, it is equally true that the area with which we are now dealing has heretofore been marked by an immunity, born of public policy considerations, which prevented law suits between parent and unemancipated child. See Cafaro v. Cafaro, supra (parent's suit against an unemancipated child for his
negligence dismissed); Reingold v. Reingold , 115 N.J.L. 532 (E. & A. 1935) (unemancipated child prohibited from bringing suit against her parents in tort); and more recently, Hastings v. Hastings, supra. It is also true that immunity from suit need not rest solely upon statute, but it may be ...