Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Gaulkin, J.A.D.
The trial court granted defendants' motion to dismiss plaintiffs' complaint "on the ground that the claims stated in the complaint cannot be maintained as a class action within R.R. 4:36-1." Plaintiffs were given leave to file an amended complaint "asserting a claim by each plaintiff on his own behalf," but they declined to do so and, instead, appeal.
Defendants filed an affidavit in support of their motion to dismiss, setting forth facts which do not appear in the complaint, and plaintiffs filed an answering affidavit by plaintiff Terrell which did the same. It appears to us that to determine whether this is a case for a class action we should first examine the complaint. If the complaint itself does not exhibit a class action, the judgment should be affirmed, unless the affidavits disclose facts which added to the complaint would make it a class action, in which event, in the interest of justice, we may order an appropriate amendment.
We find that the complaint itself does not set forth a class action, but five separate tort actions. Indeed, plaintiffs contend that their claims fall within § 552 of the Restatement of Torts. That section provides that one who negligently
supplies information for the guidance of another is liable in damages to him if he suffers harm "because of his justifiable reliance upon it in a transaction in which it was intended to influence his conduct * * *."
The complaint is in five counts, each count setting forth the claim of a separate plaintiff. However, except for names, dates and amounts, the counts are almost identical and therefore we shall use the first count as an example.
It alleges that plaintiff Charles J. Terrell was employed by one or more of the defendants until October 1, 1959, "at which time plaintiff retired as an employee of defendant * * * Butterworth"; that "subsequent to the year 1957" Butterworth, in an effort to reduce its personnel, "entered into a program of inducing early retirement" by employees under 65; that Butterworth, as an inducement to plaintiff to retire before the age of 65, informed him that he would receive "a special allowance referred to as a Temporary Early Retirement Allowance (hereinafter referred to as TERA) * * * monthly in the amount of $37.61 * * * until the same 'stops at age 65 if eligible to Social Security Benefits.'" It then alleges that "by virtue of the inducement herein set forth * * * defendant retired on October 1, 1959 at the age of 62," but it is not clear from the complaint which inducement is meant -- that which started "subsequent to the year 1957," or the assertion that the $37.61 per month would be paid until age 65, or both.
Thereafter, says the complaint, defendants advised plaintiffs that because "the Federal Social Security law was amended to provide for payment of primary Social Security Benefits to retired workers of the age of 62 years," the TERA payments would be terminated when any retiree reached the age of 62. (Defendants contend that the underlying retirement plan so provided.) Plaintiffs therefore demand judgment for the TERA payments to age 65.
On its face, the complaint obviously does not fall within any subdivision of R.R. 4:36-1 which provides, so far as is here pertinent:
"If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is
(a) joint, or common, or secondary in the sense that the owner of a primary right refuses to enforce that right and a member of the class ...