Smootz v. Ienni

• Decision Date: 27 October 1955
• Docket Number: No. 98708,98708
• Citation: 117 A.2d 675,37 N.J.Super. 529
• Parties: William SMOOTZ, Plaintiff, v. Octavio IENNI, Defendant and Third-party Plaintiff, Concetta MARTINO and Nicholas Martino, Third-party Defendants.
• Court: New Jersey County Court

Page 529

37 N.J.Super. 529

117 A.2d 675

William SMOOTZ, Plaintiff, v. Octavio IENNI, Defendant and Third-party Plaintiff, Concetta MARTINO and Nicholas Martino, Third-party Defendants.

No. 98708.

Essex County Court Law Division New Jersey.

Oct. 27, 1955.

No appearance on behalf of plaintiff.

Melvin B. Cohen, Newark, argued for the motion (Lowenstein & Cohen, Newark, attorneys for third-party defendant).

Abraham L. Friedman, Newark, argued against the motion (Samuel O. Offen, Newark, attorney for defendant and third-party plaintiff).

FOLEY, J.C.C.

This matter comes before the court on the motion of a third-party defendant for a summary judgment on a complaint filed against him purporting to set forth a claim for relief under the Joint Tortfeasors Contribution Law (N.J.S. 2A:53A--1 et seq., N.J.S.A.). The plaintiff did not appear.

The facts are these: The primary plaintiff, William Smootz, brought an action against Octavio Ienni, alleging that while a passenger in the taxicab of the latter he was injured as a result of Ienni's negligently causing it to collide with a vehicle operated by Nicholas Martino. Ienni traversed the allegation on his default and by leave of court filed the instant complaint against Martino and his alleged master, Concetta Martino. The Martinos bring on the motion for summary judgment under R.R. 4:58--2, 3, supporting it with an uncontroverted showing that prior to the institution of the main case they settled out their liability to the plaintiff by the payment of a sum of money for which they received a covenant not to sue.

The movants argue that their right to dispose of their differences with the plaintiff and to thereby buy their peace remained unimpaired, notwithstanding the Contribution Law and that the present action constitutes an invasion of that right. Contra, it is urged: firstly, that the claim must be presented herein if the non-settling defendant is to obtain an adjudication that the settler is a joint tort-feasor and so answerable to him for contribution; cf. Sattelberger v. Telep, 14 N.J. 353, 102 A.2d 577 (1954); secondly, that the right of the defendant to such an adjudication cannot be obliterated by a composition privately arrived at by the plaintiff and the settler; and finally, that the status of tort-feasor cannot be legally established by private accord but must wait upon a legal adjudication of fault in the person alleged to be a tort-feasor.

While the third-party plaintiff's contentions are not without some logical appeal they must fall before the reasoning of the Supreme Court in Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 110 A.2d 24 (1954), wherein a guide to the solution of the problem is found. There the plaintiffs brought action against five alleged tort-feasors. During the pendency of the matter they settled with two and an order was entered dismissing the action against the settlers without prejudice to the prosecution of it against the non-settlers. The latter then moved for and obtained summary judgments upon the grounds that the allegations of the complaint were untrue and that the settlement in the circumstances outlined operated as a release of all defendants. This judicial action was reversed, the Supreme Court holding that factual questions concerning the bona fides of the allegations were presented and that the dismissal did not have the legal effect attributed to it. In anticipation of the problem arising from the Contribution Law, Justice Brennan, speaking for the majority (dissent on grounds inapplicable hereto), wrote a lengthy dictum which I take to express the thinking of the court as to the mechanics of granting to all alleged tortfeasors in situations such as that here presented the intended benefits of the legislation in question. In this regard the justice said (17 N.J. at page 92, 110 A.2d at page 36):

'The basic purpose of the statute is to achieve the 'sharing of the common responsibility according to equity and natural justice,' Sattelberger v. Telep, 14 N.J. 353, 367, 102 A.2d 577, 584 (1954); Pennsylvania Greyhound Lines, Inc. v. Rosenthal, 14 N.J. 372, 386, 102 A.2d 587 (1954). This end is attained by allowing actions among the joint tortfeasors to assure that none pays in excess of his Pro rata share of the total damage. When one tortfeasor settles with the injured party for an amount which is less than the settler's Pro rata share equality between him and his co-wrongdoers may be realized in one of two ways: first the injured person may be required to credit upon any verdict against the others not the consideration received in settlement but the settler's Pro rata share ...