Judson v. Peoples Bank & Trust Co. of Westfield

Heher, J.

(concurring). The record here does not reveal the want of a genuine issue of fact as to the fraud laid against the responding defendants, and I concur in the holding of error in the entry of summary judgment on the contrary hypothesis.

But I dissent from the interpretation given the New Jersey Joint Tortfeasors Contribution Law, L. 1952, c. 335, N. J. S. 2A :53A-1 et seq., as encompassing within the essentially equitable doctrine of contribution all torts no matter how flagrant or steeped in villainy and moral depravity they may be.

*95 We are not here concerned with the meaning of the Uniform Contribution among Tortfeasors Act recommended by the National Conference of Commissioners on Uniform State Laws, 9 U. L. A. 156, for the model act has not been embraced by New Jersey. That submission and our own statute are different in basic content.

True, the model act designed to accomplish uniformity of principle and ours embody the common provision, section 2, that “The right of contribution exists among joint tortfeasors,” defined as “two or more persons jointly and severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them,” thus excluding joint and several judgment liability as a condition prerequisite to contribution. But section 3 of the New Jersey act, N. J. S. 2A :53A-3, has a provision not to be found in the commissioners’ model act which limits the class of “joint tortfeasors” whose derelictions are made subject to the doctrine of contribution, a regulative measure that has no place in the operative terms of the statute unless such was the legislative purpose. Section 3 confines the operation of the principle to cases where “injury or damage” is suffered by any person as a result of the “wrongful act, neglect or default of joint tortfeasors,” for which a money judgment is recovered.

Since it is fundamental in exegesis that all the terms of a statute be related and reconciled for the ascertainment of the essential legislative policy, is it not corollarially true that the words “tort” and “joint tortfeasors” are modified by the subsequent operative clause “wrongful act, neglect or default” of joint tortfeasors? If it is not a qualifying phrase, what meaning can it have? Its significance lies in the inexorable fact that it is a condition supplied by our own Legislature in framing the operative terms of the statute— an unequivocal refusal to accept the model act in all its essentials, for “tort” is patently a word of more extensive meaning than “wrongful act.”

*96 There is a distinction of substance between the word “tortfeasors” and the word “wrongdoers.” 13 Am. Jur. 34 ; see also n. 6. This differentiation has pervaded the law of contribution from the very beginning; and it cannot be ignored in assessing the legislative intention here. At common law a tort is defined “as a civil wrong for which the remedy is a common-law action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.” Salmond on the Law of Torts, p. IS. “Wrongful act” is not an equivalent term; it is not a word of art which has an absolute meaning under any and all circumstances; its significance of necessity depends upon the context of its use.

It is an elementary canon of statutory interpretation that ordinarily the coupling of words denotes an intention that they shall be understood in the same general sense. The natural, ordinary and general meaning of terms and expressions may be limited, qualified and specialized by those in immediate association. Words of general and specific import take color from each other when associated together, and thus the word of general significance is modified by its associates of restricted sense. The general word is qualified by the particular word. Ford Motor Co. v. New Jersey Department of Labor and Industry, 5 N. J. 494 (1950); Jersey Central Power & Light Co. v. State Board of Tax Appeals, 131 N. J. L. 565 (E. & A. 1944); Fedi v. Ryan, 118 N. J. L. 516 (Sup. Ct. 1937).

Here, “wrongful act” is characterized by its associates “neglect or default,” the whole meaning the positive and the negative breaches of duty in nature the same — acts of commission and omissions and failures not intentional, criminal, fraudulent or tainted with moral turpitude.

The legislative expression is to be assayed in the background of the legal history. At common law there is no right of contribution between joint tortfeasors who are in pari delicto; the common law distinguishes in this regard between a recovery in tort and a joint judgment against several de *97 fendants in an action of assumpsit. Merryweather v. Nixan, 8 T. R. 186, 101 Eng. Rep. 1337 (1789). Legal scholars have criticized as singularly unfortunate, giving rise to misunderstanding and confusion, that this English case has been treated as declaring the “general rule.” It is suggested that the ease states not the rule, but the exception — -the general rule being that among persons under a joint liability the law implies an assumpsit for contribution; and the exception, that no assumpsit, either express or implied, will be enforced among willful tortfeasors or wrongdoers. See 12 Harvard L. Rev. 176, Contribution Between Persons Jointly Charged for Negligence, by Theodore W. Reath; Restatement, Restitution, pp. 386-388; also sections 86-88. And see Goldman v. Mitchell-Fletcher Co., 292 Pa. 354 , 141 A. 231 (Sup. Ct. 1928); 18 C. J. S., Contribution, § 11, pp. 16, 17, 18.

The commissioners’ model act no doubt was designed to accomplish some measure of uniformity in jurisdictions having essentially different concepts of permissible contribution between joint tortfeasors — those denying contribution only as between conscious, willful, malicious or intentional joint tortfeasors who are in pari delicto, e. g., Jacobs v. Pollard, 10 Cush. 287 (Sup. Jud. Mass. 1852), and those refusing it in all cases of tort, intentional and unintentional, as in New Jersey, Manowitz v. Kanov, 107 N. J. L. 523 (E. & A. 1931); and these background considerations are necessarily to be regarded in the quest for the legislative purpose here. Such a distinction has been made between breaches of trust tainted with fraud or bad faith, those morally wrong, and defaults devoid of fraudulent intent. 66 A. L. R. 1092.

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. Sattelberger v. Telep, 14 N. J. 353, 367 (1954). But the rule is basically one of public policy, Manowitz v. Kanov, cited supra-, and it would seem that a *98 rule of policy sustained by experience from early times is not to be abrogated in favor of contribution between those who knowingly and willfully do grievous injury to person or property in the pursuit of a conspiratorial design, unless the legislative intent to that end be expressed in clear and indubitable terms. We have another apposite rule of interpretation that a statute in derogation of the common law is to be strictly construed. Fundamental policy that has stood the test of the ages, as founded in sound public morality, should not be set at naught unless the Legislature has affirmed that purpose in terms not open to doubt. The judicial process should not be made available for the relief of one conspirator as against a co-conspirator in the common design to commit a fraud or a crime against a third person who is damaged by its execution, unless there be a declaration of the new policy in unequivocal terms. Under the view of the statute now taken, the perpetrators of a murderous assault by concert would be entitled to invoke the judicial process to enforce contribution as between themselves for the damages ensuing to another from their felonious act. And the example can be multiplied. It goes without saying that a change of policy so radical should not be left to mere implication from uncertain and ambiguous language reasonably susceptible of a narrower meaning.

It was said in an early case that the "reason why the law refuses its aid to enforce contribution amongst wrongdoers, is that they may be intimidated from committing the wrong, by the danger of each being made responsible for all the consequences; a reason which does not apply to torts or injuries arising from mistakes or accidents, or involuntary omissions in the discharge of official duties.” Thweatt’s Administrator v. Jones, 1 Rand. 328, 332 (Va. Ct. of App. 1823).

Such, I submit, is the reason and spirit of the New Jersey Act, a modification of the rule of Manowitz v. Kanov, supra. There is no suggestion of an intention to give willful fraud- *99 doers and particeps %riminis the benefit of the equitable principle of contribution.

And there is also the underlying basic general rule of social and juridical policy that the law will not lend its aid to him who founds his cause of action upon an immoral or illegal act, nor will it undertake to adjust the burdens of culpable misconduct, but will leave the parties where it finds them. Selz v. Unna, 6 Wall. 327 , 18 L. Ed. 799 (1868); Coventry v. Barton, 17 Johns. 142 (Sup. Ct. N. Y. 1819); 13 Am. Jur. 36 , 37; 18 C. J. S., Contribution, § 11, p. 15. It is a settled rule of interpretation that a legislative purpose to overthrow firmly established policy, as the fruit of immemorial experience, is not to be implied but expressed in clear and unequivocal language, and then only to the extent that the terms and objects of the new legislation unmistakably require. Bayonne Textile Corporation v. American Federation of Silk Workers, 116 N. J. Eq. 146 (E. & A. 1934); Murdock v. City of Memphis, 20 Wall. 590 , 22 L. Ed. 429 (1875); Haggett v. Hurley, 91 Me. 542 , 40 A. 561 , 41 L. R. A. 362 (Sup. Jud. Ct. 1898); E. D. Clough & Co. v. Boston & Maine R. R. Co., 77 N. H. 222, 90 A. 863 (Sup. Ct. 1913); Gould v. Parker, 114 Vt. 186 , 42 A. 2d 416 , 159 A. L. R. 622 (Sup. Ct. 1945). See also 50 Am. Jur. 281 .

In fine, there is an obvious difference, basic to our jurisprudence, in the interpretive approach to a remedial statute for redressing the victim of a wrong, and a statute providing a remedy for joint wrongdoers as against one another; and the difference is, I would suggest, decisive in assessing the legislative meaning here. The statute is wanting in the imperative quality of definitive clarity.

In this view, the settlement with the Peoples Bank and Trust Company and the Estate of Charles M. Smith, and the consequent consent judgments of dismissal as to them, do not prejudice the rights of these co-defendants under the Contribution Law, nor operate as a discharge of all defendants.

Mr. Justice Wacheneeld joins in this opinion.

I-Ieher and Wacheneeld, JJ., concurring in result.

*100 For reversal — Chief Justice YandUrbilt, and Justices JIeheh, Olipi-iant, Wacheneelb, Burling, Jacobs and Brennan — 7.

For affirmance — None.