Reimann v. Monmouth Consolidated Water Co.

Heher, J.

(dissenting). The’ pleaded liability for mere nonfeasance is not laid upon the defendant water company either by the common law, by statute or by contract. Hall v. Passaic Water Co., 83 N. J. L. 771 (E. & A. 1912); Baum v. Somerville Water Co., 84 N. J. L. 611 (E. & A. 1913). We cannot declare a duty unknown to the common law to accord with our conception of the requirements of justice. That is a legislative function.

The common law of England has a constitutional basis in our jurisprudence. The State Constitution of 1776 provided that “the common law of England, as well as so much of the statute law, as have been heretofore practiced in this colony, shall still remain in force, until they shall be altered by a future law of the legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this charter.” Section XXII. The Constitution of 1844 also ordained that “The common law and statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitation, or be altered or repealed by the legislature.” Article X, Section I. And the Constitution of 1947 likewise provides that “All law,statutory and otherwise, all rules and regulations of administrative bodies and all rules of courts in force at the time this Constitution or any Article thereof takes effect shall remain *153 in full force until they expire or are superseded, altered or repealed by this Constitution or otherwise.” Article XI, Section I, paragraph 3. A provision such as the last is deemed inclusive of the common law. Ray v. Sweeney, 14 Bush. (Ky.) 1 (Ct. of App. Ky. 1878); Stout v. Keyes, 2 Dougl. (Mich.) 184 (Sup. Ct. Mich. 1st Cir. 1845). In view of the constitutional history, there can be no doubt of that here.

AVhile adaptable to modern social needs and the complexities of our present-day society, the fundamental principles of the common law are immutable except through the exercise of the legislative process. This by force of the constitutional mandate. A rule of liability unknown to the common law or the statute, and not arising by contract, may not come into being by judicial decree. It is axiomatic that the common law and the statutes have equal force, except as the former may be superseded by the latter or may run counter to the Constitution or the genius and spirit of our pqlitical institutions. Under the Constitution, the courts declare and effectuate the principles of the common law not superseded by statute or the Constitution itself. It is not the judicial province to effect a change of private rights under the common law by the substitution of a new rule of action or standard of liability. Compare Watuppa Reservoir Co. v. City of Fall River, 154 Mass. 305 , 28 N. E. 257 (Sup. Jud. Mass. 1891). The Constitution invests the courts with the power of exposition alone. The modification of common law rules of liability comes within the legislative domain. McQuigan v. Delaware, L. & W. R. Co., 129 N. Y. 50 , 29 N. E. 235 (Ct. App. N. Y. 1891); In re Hulett’s Estate, 66 Minn. 327 , 69 N. W. 31 (Sup. Ct. Minn. 1896). It is the general rule that where the common law has been incorporated in the State’s jurisprudence, its basic principles thereby adopted are subject only to constitutional restraints, .the inherent limitations of the State’s political institutions, and the exercise of the legislative power. E. B. & A. C. Whiting Co., v. City of Burlington, 106 Vt. 446 , 175 A. 35 *154 (Sup. Ct. Vt. 1934); Brahmey v. Rollins, 89 N. H. 290, 179 A. 186 , 119 A. L. R. 8 (Sup. Ct. N. H. 1935); Strout v. Burgess, - Me. - 68 A. 2d 240 , 12 A. L. R. 2d 939 (Sup. Jud. Me. 1949).

In England, the rule is- the same. In Attorney General v. Todmorden Borough Council (1937), 4 A. E. R. 588, Goddard, J., for the King’s Bench Division said:

“Many people, however, may think that the time has come when it is desirable to reconsider this question of the immunity of the council, an immunity which exists at common law. Although the great virtue of the common law is that it can be moulded and developed by the judges so as to be fitted to the requirements, and to the changing requirements, of modern life, with respect either to commerce or to habits of life or to other social matters, yet, where a rule of law has become fixed by decision, it is not open to judges to-day to alter the law in this respect, which has always been the law from its development, and the remedies that are to be found in the legislation.”

Stability and certainty are the first requisites of an ordered system of law defining the rights of persons and of property and the correlative obligations and duties; and I submit that changes in the common law are permissible only in the constitutional mode. Compare Stockton v. Dundee Manufacturing Co., 22 N. J. Eq. 56 (Ch. 1871); Swentusky v. Prudential Insurance Co. of America, 116 Conn. 526 , 165 A. 686 (Sup. Ct. Err. Conn. 1933). In Connecticut, the common law was not incorporated in the state’s jurisprudence by the Constitution or statute. State v. Muolo, 118 Conn. 373 , 172 A. 875 (Sup. Ct. Err. Conn. 1934).

But I hold the view that the second count of the complaint charges a positive act of negligent misfeasance at common law. I concur in the views of the Chief Justice in this regard. It is alleged that not long before the fire occurred, there was a knowing, intentional and wrongful reduction of the water pressure in such degree as to render water unavailable for fire-fighting purposes. This allegation would support proof of a reckless and wanton indifference to a reasonably forseeable risk of injury to plaintiff. There is *155 a well-defined, distinction at common law between misfeasance and nonfeasance. Milstrey v. Hackensack, 6 N. J. 400 (1951). It is the generally accepted rule that if the act involves an unreasonable risk of harm to an interest of another which is protected against unintended invasion, it is negligent irrespective of whether, either in itself or in the manner in which it is done, it constitutes or results in a breach of a contractual or other duty which the actor owes either to the other or a third person. This is the difference, in respect of negligence, between an act and a failure to act. Where the alleged negligence of the actor consists in a failure to act for the protection or assistance of the other, his failure to do so is not negligence unless some relation between himself and the other or some antecedent action on his part has created a duty to act for the other’s protection or assistance. The essential difference between the two situations is that in the first there is positive injury by the actor’s action, while in the second he merely fails to receive the benefit which he would obtain had the actor taken the action necessary for his protection or assistance. Restatement of Torts, section 291 and Scope Note to c. 12, Topic 4, p. 797. Compare, H. R. Moch Co. v. Rensselaer Water Co., 247 N. Y. 160 , 159 N. E. 896 (Ct. App. N. Y. 1928).

Negligence is a matter of risk — that is to say, of recognizable danger of injury. In the early English common law, there was virtually no consideration of duty. One who injured another by a positive affirmative act was held liable without any great regard even for his fault. The courts were not concerned with mere omissions to act, even though another might suffer harm. From early times there was a distinction, ■still deeply rooted in the law of negligence, between “misfeasance” and “nonfeasance” — that is to say,

“between active misconduct working positive injury to others, and passive inaction, or a failure to take steps to protect them from harm. In theory, the difference between the two is obvious, but in practice it is not always easy to draw the line and to say ^whether ■conduct is active or passive. The reason for the distinction may be *156 said to lie in the fact that by ‘misfeasance’ the defendant has created a new risk of harm to the plaintiff, while by .‘nonfeasance’ he has at least made his situation no worse,, and has merely failed to benefit him by interfering in his affairs.” Prosser on Torts, 175, 178, 190.

Liability for misfeasance is grounded in the reasonably foreseeable risk of harm to another from the action taken. It is the commission of a wrong remediable at common law.

I would reverse the judgment.

For affirmance — Justices Case, Oliphant, Wachenfeld and Burling — 4.

For reversal — Chief Justice Vanderbilt, and Justice Heher — 3.