Breen v. Peck

*368 Hehek, J.

(concurring in affirmance). At common law a release of one or more tortfeasors discharges the cause of action as to all, whether or no the sum paid by the released tortfeasor was in fact full satisfaction for the damage done; this on the hypothesis of a cause of action that is one and indivisible and the release constituted a “satisfaction in law,” while a covenant not to sue does not discharge the unreleased tortfeasors. And there is no contribution among tortfeasors in pari delicto; this on the principle that the wrongdoers have no just claim upon the judicial process for an equal or proportionate distribution of the common burden of their wrongdoing.

These principles still obtain in New Jersey save as modified by the Joint Tortfeasor's Contribution Law, L. 1952, c. 335, N. J. S. 2A :53A—1 et seq. Sattelberger v. Telep, 14 N. J. 353 (1954). This is not the model Uniform Contribution among Tortfeasors Act recommended by the National Conference of Commissioners on Uniform State Laws in 1939, 9 U. L. A. 233 et seq. We have no occasion now to consider the essential differences in these drafts. It suffices to say that the New Jersey act does not embody section 2(3) of the model act providing that a joint tortfeasor who “enters into a settlement with the injured person is not entitled to recover contribution from another joint tortfeasor whose liability to the injured person is not extinguished by the settlement”; nor does it have section 3 of that draft providing that the “recovery of a judgment by the injured person against one joint tortfeasor does not discharge the other joint tortfeasors,” nor section 4 providing that a “release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides; but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid.”

*369 The Legislature is the repository of the law-making power; and we are concerned here with principles of substantive law whose alteration is the exclusive province of that coordinate branch of the government. And it is a settled rule of exposition that statutes are to be construed in reference to the principles of the common law, “for it is not to be presumed that the legislature intended to make any innovation upon the common law further than the case absolutely required”; the law “infers that the act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced, for if the parliament had had that design, it is naturally said they would have expressed it.” State v. Norton, 23 N. J. L. 33 (1850); Carlo v. Okonite-Callender Cable Co., 3 N. J. 253 (1949); Blackman v. Iles, 4 N. J. 82 (1950); State v. Western Union Telegraph Co., 12 N. J. 468, 486 (1953).

There was here a purposeful departure from the Uniform Act. Sections 3 and 4 constituted an integral part of the model act. The New Jersey act does not have their counterpart; and their excision plainly signifies a refusal, deliberate and affirmative in nature, to modify the common-law quality and legal consequence of a full release given to one of two or more joint tortfeasors and the common-law denial of contribution among tortfeasors, save as therein specifically provided. Otherwise, there is no rational explanation for their exclusion from our statute.

The New Jersey act, N. J. S. 2A:53A-3, provides for contribution where one of the joint tortfeasors pays the judgment in the action ex delicto, “in whole or in part”; recovery of contribution may be had “from the other joint tortfeasor or tortfeasors” for the “excess so paid over his pro rata share.” There are no provisions otherwise for adjusting the rights of joint tortfeasors to the basic principle of contribution thus laid down, such as are contained in the Uniform Act; and the fulfillment of the statutory policy poses administrative problems. Judson v. Peoples Bank and Trust Co., 25 N. J. 17, 38 (1957). See also *370 the Commissioners’ Revised Draft of 1955, particularly sections 1, 2, 3 and 4.

But the full significance of the state statute need not have our attention now. It is enough to say that it does not evince a purpose to do more than modify the subsisting common-law principles to effectuate the legislative design of contribution under the given circumstances; and the judicial power cannot go beyond the consummation of the declared legislative will. Judson v. Peoples Bank and Trust Co., 25 N. J. 17, 36 (1957). It is not the judicial province to qualify the legislative expression of policy and purpose or to introduce new juristic concepts of substantive law not within the ambit of the statute.

The Restatement of the Law of Torts does not subscribe to the doctrine here approved. Section 885 declares the principle that a valid release of one tortfeasor, given by the injured person, discharges all others liable for the same harm, unless the parties to the release agree that the release shall not discharge the others and, if the release is embodied in a document, unless such agreement appears in the document; and a covenant not to sue does not operate as a discharge of any other liable for the harm. The only qualification of the common-law rule is the effectuation of the intent of the parties, deemed immaterial at common law because of the indivisibility of the action.

And here, quite apart from the foregoing considerations, I would reiterate the views voiced in Judson, 17 N. J. 67, 94 (1954); same case, 25 N. J. 17, 39 (1957), that contribution has its roots in the equitable principle of equality among those in aequali jure, a sharing of the common responsibility and burden according to equity and natural justice—a rule of basic public policy that is not served by enforcing contribution among those who knowingly and willfully do grievous injury to person or property in the pursuit of a conspiratorial design, and a legislative intent to the contrary is not to be educed from vague and uncertain symbols of expression, but only from clear and *371 indubitable words to that effect; and the statute here cannot be so assessed. The Commissioners’ Revised Act of 1955, section 1(c), provides that “[t]here is no right of contribution in favor of any tortfeasor who has intentionally [wilfully or wantonly] caused or contributed to the injury or wrongful death.”

Tender solicitude for an equal division among willful and malicious wrongdoers and fraud-doers of the burden of the injurious consequences of these acts will not deter such evil endeavors. Can it be that the policy of “compromise and settlement” overshadows the ancient common-law principle founded in public morality that the judicial process cannot be thus invoked to achieve equality of burden between willful evildoers? Torts not so tainted are in a different category.

Here, there is at the very least a factual inquiry as to whether the release was intended to cover the claim for damages for malicious interference with the plaintiff’s contractual interests. This concerns the true consideration for the instrument, a subject not within the parol evidence rule. Atlantic Northern Airlines, Inc. v. Schwimmer, 12 N. J. 293, 303 (1953). And there is an issue of fact as to the count charging a like tortious interference by the defendant alone and not in combination with another.

Subject to these considerations, I would affirm the judgment of the Appellate Division.

Hei-ier, J., concurring in result.

For affirmance—Chief Justice Weintraub, and Justices Heher, Wacheneeld, Burling, Jacobs, Francis and Proctor—7.

For reversal—None.