Taibi v. De Gennaro

• Decision Date: 25 January 1961
• Docket Number: No. L--14611,L--14611
• Citation: 167 A.2d 667,65 N.J.Super. 294
• Parties: Jean TAIBI, Plaintiff, v. Vincent DE GENNAR and Daniel C. Bury, Defendants.
• Court: New Jersey Superior Court

Page 294

65 N.J.Super. 294

167 A.2d 667

Jean TAIBI, Plaintiff, v. Vincent DE GENNAR and Daniel C. Bury, Defendants.

No. L--14611.

Superior Court of New Jersey Law Division.

Jan. 25, 1961.

Emil E. Mascia, Newark (Sarcone & Mascia, Newark, attorneys), for plaintiff.

Robert A. Vanderbilt, Newark (Toner, Crowley, Woelper & Vanderbilt, Newark, attorneys), for defendants.

WAUGH, A.J.S.C.

The plaintiff herein alleges that on October 12, 1955, she then being an infant of the age of 18 years, suffered an injury to her right hand while operating a meat grinder in the course of her employment in the meat department of an American Stores Company Acme store, located in the City of Newark, New Jersey. Her complaint alleges that at that time the defendant DeGennaro was the manager of said store, while defendant Bury is alleged to have been the supervisor of the meat department of all stores maintained and operated by the American Stores Company on the date of the alleged injury. The gravamen of her allegation of negligence is that the defendants failed to maintain proper safeguards for the proper use and function of the meat grinder, and that they failed to give adequate instructions in the proper operation of the same.

Subsequent to the date of the alleged accident, and on September 23, 1956, the plaintiff and one Santo Taibi were married and lived together thereafter for a period of one year and ten months, after which, she alleges, Taibi deserted her.

The defendants now seek leave to file and serve upon Taibi a third-party complaint seeking contribution under our Joint Tortfeasors Contribution Law, N.J.S. 2A: 53A--1 et seq., N.J.S.A., alleging, Inter alia, that at the time of the alleged accident his negligence was the sole and proximate cause of the plaintiff's injuries, or, in the alternative, if it is shown that the defendants were negligent, then in that case the proposed third-party defendant was jointly negligent and therefore liable for contribution.

In addition to her affidavit, the oral deposition of the plaintiff, taken on October 21, 1960 and filed with the court, discloses that presently, and for approximately two and one-half years prior thereto, the plaintiff and the proposed third-party defendant have been separated, due to Taibi's alleged desertion, during which time the plaintiff was forced to seek a support order against him. She emphatically avers that she has no present intention to seek a divorce, nor does she presently intend ever to reconcile or cohabit with him.

The question for decision is whether or not the movants must show as a condition precedent to the right of joinder that the proposed third-party defendant may properly be joined as a matter of substantive law. They contend that the question of interspousal immunity should not necessarily be considered at this time since any declaration by this court that a cause of action may or may not exist against the proposed third-party defendant would not be Res adjudicata as to him since he is not yet a party. At oral argument of the motion the movants urged the theory that the question of any substantive disability properly could be avoided and the order to join issued, thus leaving the proposed third-party defendant free to move for dismissal of their complaint under R.R. 4:12--2 on the ground that it does not set forth a cause of action upon which relief could be afforded them.

Conceding Arguendo that they must show that the third-party defendant may properly be joined as a matter of substantive law, the defendants urge that the facts in this case--namely, the separation of the plaintiff and proposed third-party defendant--makes inapplicable the sociological and political grounds upon which interspousal actions have been prohibited.

I have considered all of the arguments and documents presented and filed with the court and conclude the defendants' motion must be denied.

R.R. 4:14--1, upon which the defendants rely, provides that a defendant may move on notice to the plaintiff for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who 'is or may be liable to him for all or part of the plaintiff's claim against him.' There is no doubt, and it must be fairly conceded by all parties, that this rule is merely a procedural vehicle by which litigants are provided with the opportunity to adjudicate in an action 'all issues and controversies germane to the asserted actionable wrong,' thus avoiding circuity of suits and multiplicity of actions. Sattelberger v. Telep, 14 N.J. 353, 372, 102 A.2d 577, 586 (1954). It is not a provision which has created substantive rights which did not exist prior to its enactment. In Douglas v. Sheridan, 26 N.J.Super. 544, 98 A.2d 632 (Law Div.1953), and Bray v. Gross, 16 N.J. 382, 108 A.2d 850 (1954), it was pointed out that prior to June 18, 1952, the effective date of the Joint Tortfeasors Contribution Law, supra, no right of contribution existed between joint tortfeasors, and consequently joinder under former Rule 3:14--1 was improper since he joint tortfeasor could not be a person 'who is or may be liable' as set forth in the rule. Our present third-party rule, R.R. 4:14--1, which is identical to the former Rule 3:14--1 in those aspects which are here material, has now been recognized, as a general proposition, to be a proper method of proceeding in cases involving the Contribution Law, Sattelberger v. Telep, supra, the moving party being required to show the probability or possibility of liability to him from a third party for all or part of the plaintiff's claim. Douglas v. Sheridan, supra.

Essentially, then, we are faced with the problem of determining whether the factual element of long and avowedly permanent separation, coupled with the existence of an alleged antenuptial tort, operates to place the case within the remedial provisions of the Contribution Law, thus making the proposed third-party defendant a person who is or may be liable to the defendant for all or part of the plaintiff's claim against the latter as required by the rule.

It is an elementary principle of our jurisprudence that at common law a wife could not sue her husband. The disability which existed was rooted in the concept of the legal identity of the husband and wife, the very being or legal existence of the woman being suspended during the marriage, or at least incorporated and consolidated into that of the husband under whose wing, protection and cover she performed everything. Kennedy v. Camp., 14 N.J. 390, 396, 102 A.2d 595 (1954), citing 1 Blackstone's Commentaries 442. This rule has continued to obtain in New Jersey, out courts having decisively concluded that our Married Persons Act, R.S. 37:2--1 et seq., N.J.S.A., did not lift the bar to interspousal litigation in tort for negligence. Hudson v. Gas Consumers Association, 123 N.J.L. 252, 8 A.2d 337 (E. & A. 1939); Lang v. Lang, 24 N.J.Misc. 26, 45 A.2d 822 (Cir.Ct.1946); Bendler v. Bendler, 3 N.J. 161, 69 A.2d 302 (1949); Kennedy v. Camp, supra.

In the latter case Justice Heher summed up the limitations of our statute thus:

'The Married Persons Act does not suggest this assault upon the unity of the spouses which is interwoven into to the law for the domestic peace and well-being that are conducive to the subsistence of the marriage relation, in the service of the common good and welfare as well as the essential interests of the spouses themselves and their offsping.' (14 N.J. at p. 397, 102 A.2d at p. 599)

Equally clear is the fact that the Joint Tortfeasors Contribution Act has not swept away this long standing interdict and created causes of action between spouses heretofore unknown.

In Kennedy, supra, a suit was commenced by the plaintiff-judgment defendant seeking contribution against the defendant, who was at the same time the husband of the judgment plaintiff. Although this case did not involve a motion to join a third-party defendant prior to...