On motion for leave to file and serve a third-party complaint.
The plaintiff herein alleges that on October 12, 1955, she then being an infant of the age of 18 years, suffered an injury to her right hand while operating a meat grinder in the course of her employment in the meat department of an American Stores Company Acme store, located in the City of Newark, New Jersey. Her complaint alleges that at that time the defendant De Gennaro was the manager of said store, while defendant Bury is alleged to have been the supervisor of the meat department of all stores maintained and operated by the American Stores Company on the date of the alleged injury. The gravamen of her allegations of negligence is that the defendants failed to maintain proper safeguards for the proper use and function of the meat grinder, and that they failed to give adequate instructions in the proper operation of the same.
Subsequent to the date of the alleged accident, and on September 23, 1956, the plaintiff and one Santo Taibi were married and lived together thereafter for a period of one year and ten months, after which, she alleges, Taibi deserted her.
The defendants now seek leave to file and serve upon Taibi a third-party complaint seeking contribution under our Joint Tortfeasors Contribution Law, N.J.S. 2 A:53 A -1 et seq. , alleging, inter alia , that at the time of the alleged accident his negligence was the sole and proximate cause of the plaintiff's injuries, or, in the alternative, if it is shown that the defendants were negligent, then in that case the proposed third-party defendant was jointly negligent and therefore liable for contribution.
In addition to her affidavit, the oral deposition of the plaintiff, taken on October 21, 1960 and filed with the court, discloses that presently, and for approximately two and one-half years prior thereto, the plaintiff and the proposed third-party defendant have been separated, due to Taibi's alleged desertion, during which time the plaintiff was forced to seek a support order against him. She emphatically avers that she has no present intention to seek a divorce, nor does she presently intend ever to reconcile or cohabit with him.
The question for decision is whether or not the movants must show as a condition precedent to the right of joinder that the proposed third-party defendant may properly be joined as a matter of substantive law. They contend that the question of interspousal immunity should not necessarily be considered at this time since any declaration by this court that a cause of action may or may not exist against the proposed third-party defendant would not be res adjudicata as to him since he is not yet a party. At oral argument of the motion the movants urged the theory that the question of any substantive disability properly could be avoided and the order to join issued, thus leaving the proposed third-party defendant free to move for dismissal of their complaint under R.R. 4:12-2 on the grounds that it does not set forth a cause of action upon which relief could be afforded them.
Conceding arguendo that they must show that the third-party defendant may properly be joined as a matter of substantive
law, the defendants urge that the facts in this case -- namely, the separation of the plaintiff and proposed third-party defendant -- makes inapplicable the sociological and political grounds upon which interspousal actions have been prohibited.
I have considered all of the arguments and documents presented and filed with the court and conclude the defendants' motion must be denied.
R.R. 4:14-1, upon which the defendants rely, provides that a defendant may move on notice to the plaintiff for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who "is or may be liable to him for all or part of the plaintiff's claim against him." There is no doubt, and it must be fairly conceded by all parties, that this rule is merely a procedural vehicle by which litigants are provided with the opportunity to adjudicate in an action "all issues and controversies germane to the asserted actionable wrong," thus avoiding circuity of suits and multiplicity of actions. Sattelberger v. Telep , 14 N.J. 353, 372 (1954). It is not a provision which has created substantive rights which did not exist prior to its enactment. In Douglas v. Sheridan , 26 N.J. Super. 544 (Law Div. 1953), and Bray v. Gross , 16 N.J. 382 (1954), it was pointed out that prior to June 18, 1952, the effective date of the Joint Tortfeasors Contribution Law, supra , no right of contribution existed between joint tortfeasors, and consequently joinder under former Rule 3:14-1 was improper since the joint tortfeasor could not be a person "who is or may be liable" as set forth in the rule. Our present third-party rule, R.R. 4:14-1, which is identical to the ...