ADLER‘S QUALITY BAKERY, INC., ET ALS., PLAINTIFFS-RESPONDENTS, v. GASETERIA, INC., A CORPORATION OF INDIANA, DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF, v. RKO TELERADIO PICTURES, INC., A CORPORATION OF THE STATE OF NEW YORK, AUTHORIZED TO DO BUSINESS IN NEW JERSEY, THIRD-PARTY DEFENDANT-APPELLANT AND FOURTH-PARTY PLAINTIFF-RESPONDENT, v. BONDED GAS & OIL SYSTEM, INC., A CORPORATION, FOURTH-PARTY DEFENDANT-APPELLANT, AND ROSCOE TURNER AERONAUTICAL CORPORATION, A CORPORATION, FOURTH-PARTY DEFENDANT-APPELLANT
Supreme Court of New Jersey
Argued February 8, 1960—Decided March 22, 1960
32 N.J. 55
The determination of the Commissioner is affirmed.
For affirmance—Chief Justice WEINTRAUB, and Justices BURLING, JACOBS, FRANCIS, PROCTOR, HALL and SCHETTINO—7.
For reversal—None.
Mr. Samuel A. Gennett argued the cause for the plaintiffs-respondents, Adler‘s Quality Bakery, Inc., et als.
Mr. Willard G. Woelper argued the cause for the third-party defendant-respondent and fourth-party plaintiff-respondent, RKO Teleradio Pictures, Inc. (Messrs. Toner, Crowley, Woelper & Vanderbilt, attorneys; Messrs. Willard G. Woelper and Allan R. Roth, of counsel; Mr. Allan R. Roth, on the brief).
The opinion of the court was delivered by
BURLING, J. This case arises out of a collision of an airplane with a television tower located in North Bergen Township, Hudson County, New Jersey on November 8, 1956. Numerous claims were made by persons living or working in the immediate area of the tower involving real and personal property and incidental pecuniary losses allegedly caused by the precipitation to earth of the debris of the accident. The Superior Court, Law Division, by its order dated August 20, 1957, adopted the following procedure: a complaint was filed by one of the plaintiffs, Adler‘s Quality Bakery, Inc.; the other parties claiming damages, 25 in number, were to be considered parties plaintiff but were named only in a schedule attached to the complaint, which schedule lists the name and address of each party, the nature of the claim, and the amount of damages sought. The complaint alleges that Gaseteria, Inc., the defendant, was the owner of the airplane involved in the collision, and thus was allegedly absolutely liable under the provisions of
On November 25, 1957 Gaseteria filed a third-party complaint against RKO Teleradio Pictures, Inc., hereinafter referred to as RKO, alleging that the latter was in control and possession, at the time of the collision, of the television tower into which the airplane crashed, and seeking contribution from RKO as a joint tortfeasor responsible for a pro rata portion of all damages recovered by plaintiffs against Gaseteria. RKO thereupon filed a fourth-party complaint against Bonded Gas & Oil System, Inc., hereinafter referred to as Bonded, and Roscoe Turner Aeronautical Corporation, hereinafter referred to as Roscoe Turner, seeking contribution against each under the Joint Tortfeasors Contribution Law,
On February 2, 1959 plaintiffs filed a motion for summary judgment against Gaseteria, together with affidavits in support thereof. By its order filed March 9, 1959, the Superior Court, Law Division, entered a summary judgment against Gaseteria on the issue of liability, holding Gaseteria absolutely liable under the terms of
On July 14, 1959 the Superior Court, Law Division, entered an order disposing of various motions made by the parties. Roscoe Turner moved the court to determine
The Superior Court, Appellate Division, by its order of September 3, 1959, granted leave to appeal to Gaseteria, Bonded, Roscoe Turner, and RKO from those portions of the trial court‘s order of July 14, 1959 which were adverse to the respective parties. These appeals were consolidated with the appeal made by Gaseteria from the trial court‘s order of March 7, 1959 granting plaintiffs’ motion for summary judgment on the issue of liability. While these appeals were pending in the Superior Court, Appellate Division, and before argument there, we certified them on our own motion.
There are several distinct questions, dealing with the various orders rendered by the trial court, to be considered on this appeal. The first is the order granting summary judgment in favor of plaintiffs and against Gaseteria on
I.
The first question to be determined is whether the trial court properly granted plaintiffs’ motion for summary judgment against Gaseteria on the issue of liability.
“The owner of every aircraft which is operated over the land or waters of this State is absolutely liable for injuries to persons or property on the land or water beneath, caused by ascent, descent, or flight of the aircraft, or the dropping or falling of any object therefrom, whether such owner was negligent or not, unless the injury is caused in whole or in part by the negligence of the person injured, or of the owner or bailee of the property injured. If the aircraft is leased at the time of the injury to person or property, both owner and lessee shall be liable, and they may be sued jointly, or either or both of them may be sued separately. An airman who is not the owner or lessee shall be liable only for the consequences of his own negligence. * * * *”
Gaseteria argues that
The fault of this argument, however, lies in its premise. The doctrine that an extraordinary hazard will subject the persons responsible for it to absolute liability was infused upon the ordinary rule of liability for fault by the English case of Rylands v. Fletcher, L. R. 3 H. L. 330 (1868). See Morris, Torts, 240-242 (1953). But see Marshall v. Welwood, 38 N. J. L. 339, 340-341 (Sup. Ct. 1876). Some courts will use the device of the Rylands v. Fletcher doctrine to impose liability without fault when the complaint is of injuries arising from activities which may be termed extrahazardous. But that rule is concerned with common-law liability. It in no way applies to legislative acts and is not a limiting factor upon them. The Legislature has not improperly exercised the police power or violated due process merely because it imposes absolute liability on a person causing injuries. New York Central R. R. v. White, 243 U. S. 188, 37 S. Ct. 247, 61 L. Ed. 667 (1917); City of Chicago v. Sturges, 222 U. S. 313, 32 S. Ct. 92, 56 L. Ed. 215 (1911); Crowell v. Benson, 285 U. S. 22, 52 S. Ct. 285, 76 L. Ed. 598 (1932). Rather, when such action has been taken, the question is whether the law is reasonable, not arbitrary or capricious, and whether it bears
The essential reasonableness of the statutory imposition of absolute liability in question stems, at least, arguably, from the problems of proof of fault encountered by a person damaged by falling aircraft (or falling debris from aircraft) who seeks recovery for those damages. Proof of negligence, for many different reasons, is difficult to obtain in a large number of such cases. Sweeney, “Is Special Aviation Liability Legislation Essential?“, 19 J. Air L. & Com. 166, 168-170 (1952). Even if such proof is obtainable, the expense involved is frequently very high, and often prohibitive. See Speiser, “Liability Problems in Airline Crash Cases,” Practical Lawyer, March 1957, p. 17. Application of the doctrine of res ipsa loquitur is an uncertain means of overcoming these problems. McLarty, “Res Ipsa Loquitur in Airline Passenger Litigation,” 37 Va. L. Rev. 55, 80 (1951). A practical alternative, therefore, is to place the risk of ground damages caused by aircraft, or at least the risk of recovering from the person responsible for the fault causing such damages, on a person other than the damaged party—such as the owner of the aircraft as was done in the statute in question. See Prentiss v. National Airlines, Inc., 112 F. Supp. 306, 310 (D. C. N. J. 1953). These considerations, some scholars argue, indicate that the aircraft industry should bear common-law absolute liability. Restatement, Torts, § 520, comment (d) (1938). Both France and Italy, by statute, impose absolute liability on some segment of the aviation industry in favor of the victim of a falling aircraft. Mankiewicz, “Some Aspects of Civil Law Regarding Nuisance and Damage Caused by Aircraft,” 25 J. Air L. & Com. 44, 49-50 (1958). England has enacted several statutes with the same effect. Civil Aviation Act of 1949, 12 & 13 Geo. 6, c. 67, Air Navigation Act of 1920, 10 & 11 Geo. 5, c. 80. Concerning the latter, the British Aerial Transport Com-
“Admittedly persons on land are practically powerless to ensure their own safety by precautionary measures against damage caused by the fall of aircraft or of objects carried therein. * * * [A]s far as damages done by aircraft is concerned the deprivation of the landowner of what is almost certainly an existing right of property should be compensated by what will be in effect insurance of himself and his property against such damage. Nor do we think that in practice the expense of insuring himself against third party risks will prove very burdensome to the owner of aircraft.” Quoted in Bogert, “Problems in Aviation Law,” 6 Cornell L. Q. 271, 300 (1921).
The statute to which the Committee referred bears striking resemblance to Section 5 of the Uniform Aeronautics Act (which was enacted in this State and appears as
The above discussion reveals that the statute in question is a reasonable measure, not arbitrary or capricious, and bears a real and substantial relation to the end sought to be achieved. The statute therefore does not violate Gaseteria‘s rights under Art. I, Par. 1 or 20 of
The second ground of attack on the statute in question is that it contains an unconstitutional classification contrary to the equal protection clause of the Fourteenth Amendment to the Federal Constitution and contrary to Art. I, Par. 1 and Art. 4, Sec. 7, Pars. 8 and 9 of
The third ground of attack on
“* * * The statutory provisions in question clearly show that:
(1) They do not affect the actual movement of airplanes in interstate commerce.
(2) They do not affect the average airplane, even financially, as would a tax.
(3) They only affect an airplane owner financially on the occurrence of an accident. Such an accident the defendant owners will certainly agree is not the ordinary result of air travel.
(4) The benefit of the statutory provisions does not go to any one who in any wise participates in such air travel, such as passengers, but only to those who are, under ordinary circumstances, entire strangers to air travel, and who are totally without fault themselves.
It is obvious from the above that the effect of the above statutory provisions on interstate commerce is indirect and casual. It is equally obvious that the effect of such statutory provisions on the public welfare has the clearest of reason in its support, and is a rational exercise of the police power. The principle has been settled in a host of cases that if a statute is a proper exercise of the police
power, and has but an indirect effect upon interstate commerce, it is not an invalid interference with interstate commerce.” 112 F. Supp., at page 314.
We agree with these conclusions, and we hold that the statute in question does not impose an unconstitutional burden on interstate commerce.
Gaseteria contends that even should the statute be held constitutional the summary judgment on the issue of liability should not have been granted since the “pleadings, admissions, and moving affidavits did not show palpably the absence of a genuine issue as to any material fact challenged and that plaintiffs were entitled to judgment as a matter of law,” inasmuch as plaintiffs “failed to establish that the crash of the aircraft owned by defendant was the proximate cause of the damages allegedly sustained by plaintiffs.” We hold, however, that the trial court‘s action was proper, and that this objection to it must fail. Nowhere is it suggested that any other cause could be responsible for the damages alleged other than general denials contained in Gaseteria‘s answer. The affidavit submitted by plaintiffs in support of their motion for summary judgment clearly indicates that the losses complained of were a result of the crash of the airplane Gaseteria admits it owned. Of course, the summary judgment was on the issue of “liability” only, and all plaintiffs must nonetheless demonstrate by adequate proof the amount of their losses in fact occasioned by the crash. That these questions remain, however, is no reason to deny plaintiffs summary judgment holding Gaseteria at least primarily liable for all legal damages resulting proximately from the crash, according to the terms of
The second problem to be considered is whether the trial court properly dismissed the third-party complaint filed by Gaseteria against RKO for contribution under the Joint Tortfeasors Contribution Law,
“For the purpose of this act the term ‘joint tortfeasors’ means two or more persons jointly or 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. A master and servant or principal and agent shall be considered a single tortfeasor.”
“Where injury or damage is suffered by any person as a result of the wrongful act, neglect or default of joint tortfeasors, and the person so suffering injury or damage recovers a money judgment or judgments for such injury or damage against one or more of the joint tortfeasors, either in one action or in separate actions, and any one of the joint tortfeasors pays such judgment in whole or in part, he shall be entitled to recover contribution from the other joint tortfeasor or joint tortfeasors for the excess so paid over his pro rata share; but no person shall be entitled to recover contribution under this act from any person entitled to be indemnified by him in respect to the liability for which the contribution is sought.”
RKO argues that Gaseteria‘s infliction of damages on the plaintiffs was not a “wrongful act, neglect or default” as used in
“The weakness of the position of the government is that it overlooks the fact that the effect of the South Carolina Statute is to make the infliction of injury or damage by the operation of an airplane of itself a wrongful act giving rise to liability * * *.
It should be noted that the liability asserted here against the government is not one arising out of the mere possession of property, but one created by law for the invasion of personal and property rights. It is clearly within the power of the state to enact legislation imposing such liability, and it is equally clear that any such invasion of rights, whether intentional or not, can be made a wrongful act on the part of the one guilty of the invasion, and is made such by a statute imposing liability therefor. As said in the A. L. I. Restatement of Torts, p. 16, the word ‘tortious,’ which means wrongful, ‘is appropriate to describe not only an act which is intended to cause an invasion of an interest legally protected against intentional invasion, or conduct which is negligent as creating an unreasonable risk of invasion of such an interest, but also con-
The same reasoning may be applied here. The “wrongful act” required by the Joint Tortfeasors Contribution Law,
The cases cited by RKO on this question, Farren v. New Jersey Turnpike Authority, 31 N. J. Super. 356 (App. Div. 1954); and Yearicks v. City of Wildwood, 23 N. J. Super. 319 (Law Div. 1952), are not on point. They held that a third party could not seek contribution from the employer of the person seeking damages when the employer would be liable to that person under the Workmen‘s Compensation Act,
RKO contends, however, that the Joint Tortfeasors Contribution Law requires that the party seeking contribution be liable for the same tort as the party from whom contribution is sought. It is asserted that since plaintiffs could not recover from RKO under
The standard which must be met by a party seeking contribution from another under the Joint Tortfeasors Con
“The plaintiff must prove that he and the defendant in contribution are in aequali jure; he cannot prevail unless the injured person also had a cause of action for the tortious injury against the defendant called on for contribution.”
This requires, however, only that the injured person have a cause of action against both plaintiff and defendant in contribution and that permitting plaintiff in contribution to recover from defendant in contribution would have essentially the same effect as permitting the injured person to recover one-half his damages from both wrongdoers, assuming both are solvent. Failure to meet this standard explains the result in Kennedy v. Camp, 14 N. J. 390 (1954), where it was held that a party sued by an injured person could not seek contribution from that injured person‘s spouse, since the effect would be to give the injured spouse a cause of action against the spouse causing injury, which effect was never intended by the Joint Tortfeasors Contribution Law. The same reasoning required the result reached in Lutz v. Boltz, 48 Del. 197, 100 A. 2d 647 (Super. Ct. 1953), cited by RKO in its brief, which held that a plaintiff in contribution could not recover from a defendant in contribution for the latter‘s negligence causing damages to the injured party, when the injured party was prevented from recovering for such injuries from the defendant in contribution, except insofar as they resulted from the latter‘s willful and wanton recklessness, by the Delaware Automobile Guest Statute. Farren v. New Jersey Turnpike Authority, 31 N. J. Super. 356 (App. Div. 1954), and Yearicks v. City of Wildwood, 23 N. J. Super. 379 (Law Div. 1952), both discussed supra, are explainable in the same manner. In Wilson v. Massagee, 224 N. C. 705, 32 S. E. 2d 335, 156 A. L. R. 922 (Sup. Ct. 1944), plaintiff in contribution, liable to the injured person‘s administratrix by virtue of the state Death Act, sought contribution from
The practical problem which RKO seeks to raise by this argument is that if Gaseteria is allowed contribution because of fault found to have been committed by RKO the latter could be made to respond in the amount of half the judgment rendered against Gaseteria which was absolutely liable for all injuries. This means, it is argued, that RKO could be subjected to liability for damages which, as to it, were not foreseeable. The answer to this problem, however, is that RKO cannot be held to be a joint tortfeasor within the meaning of the Joint Tortfeasors Contribution Law unless the damages to the satisfaction of which it contributes are foreseeable to it, since this is a vital element of the fault which must be found to exist if contribution is to be allowed. There is, therefore, no difficulty in allowing a party liable for negligence to be sued as a joint tortfeasor by a party absolutely liable, since the effect is the same as if both parties committed torts of an identical nature. We may note at this point, however, that we are not deciding the question of whether RKO owed no duty to Gaseteria and hence could not be at fault in respect to the collision, thereby precluding the possibility of RKO‘s being a joint tortfeasor under the Joint Tortfeasors Contribution Law. This question has not been raised at any stage of this litigation and we will not undertake to consider it now.
III.
The third question is whether the trial court‘s denial of Gaseteria‘s application for leave to amend its third-party complaint to include a count in indemnity was proper, and also whether the denial of RKO‘s similar request was correct.
We hold that Gaseteria‘s application to amend its third-party complaint to include a count in indemnification should be allowed. As we have indicated above, the statute on which Gaseteria‘s liability to plaintiffs is based was not intended to place definitely as to all parties the issue of fault causing the damages originally complained of. Rather
“A person who, without personal fault, has become subject to tort liability for the unauthorized and wrongful conduct of another, is entitled to indemnity from the other for expenditures properly made in the discharge of such liability.”
This sound rule was amplified in Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A. 2d 368 (Sup. Ct. 1951) where the court said:
“The right of indemnity rests upon a difference between the primary and secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which enures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable. The difference between primary and secondary liability is not based on a difference in degrees of negligence or on any doctrine of comparative negligence, * * * It depends on a difference in the character or kind of wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person * * * * * * * [T]he important point to be noted in all the cases is that secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible.” 77 A. 2d, at pages 370, 371.
See Public Service Elec. & Gas Co. v. Waldroup, 38 N. J. Super. 419, 431-432 (App. Div. 1955). As was stated in Daily v. Somberg, 28 N. J. 372, 385 (1958) “* * * [I]ndemnity amongst tortfeasors has generally been confined to those whose negligence ‘is not morally culpable but is merely constructive, technical, imputed or vicarious,‘” an implied recognition of the rule stated above. It is clearly but an application of this well-established rule to hold that should Gaseteria be able to prove itself or its agents free from any fault contributing to the accident, then it is entitled to indemnity from a person whose fault in fact caused it.
We see no basis, however, for allowing RKO‘S application to amend its fourth-party complaint to include a count in indemnity. If RKO is liable at all, it will be because of a finding that its fault, either alone or in conjunction with other parties, caused the plaintiffs’ injuries. And as we pointed out above, such a finding must preclude indemnification among tortfeasors. We reject any rule which would attempt to determine whether the negligence of the party seeking indemnity was active or passive and to rest the granting of indemnity on that determination. The present status of our law with respect to contribution among joint tortfeasors makes such a rule completely unjustified in policy or logic. See Public Service Elec. & Gas Co. v. Waldroup, 38 N. J. Super. 419, 433-434 (App. Div. 1955).
IV.
The final question deals with the trial court‘s order striking the first three separate defenses raised by Roscoe Turner to the fourth-party complaint, all of which defenses attack the method of service made upon Roscoe Turner and the jurisdiction of the court over that party.
Nor is it sufficient to avoid the service made upon Roscoe Turner that the aircraft involved in this case was licensed pursuant to the laws and regulations of the federal government. True, the statute in question applies only to aircraft “which is not registered in this State.”
CONCLUSION.
The order of the trial court dated March 7, 1959, granting summary judgment to plaintiffs and against Gaseteria on the issue of liability, is affirmed. The first paragraph of the trial court‘s order dated July 14, 1959 is affirmed insofar as it strikes the first, second and third separate defenses stated in Roscoe Turner‘s answer to RKO‘s fourth-party complaint attacking the service of process under
Costs shall be awarded to plaintiffs against Gaseteria. Otherwise, costs are to abide the event.
WEINTRAUB, C. J., and FRANCIS, J. (dissenting in part). We join in the majority opinion except with respect to the holding that Gaseteria may seek indemnification from RKO.
The majority start with the proposition, that one at fault may not seek indemnification from others upon an evaluation of degrees of fault. With that premise we agree. The majority then hold that Gaseteria may prove that RKO was solely blameworthy and thereby obtain indemnification. With this, we disagree.
The different conclusions stem from our respective conceptions of the reason for the statutory liability of the owner of a plane. The majority find the Legislature imposed liability without fault solely to place the economic burden where it may best be carried. If the premise were accurate, the ultimate conclusion of the majority would be correct. However, it seems to us the Legislature imposed absolute liability because of probable fault, upon the thesis that in sending his plane aloft the owner undertakes an operation fraught with danger of ground damage; that unless commensurate care is exercised, such injury will follow; that in most cases ground damage probably is caused by the owner‘s negligence; that evidence of fault is destroyed in the crash itself; and hence it is unfair to subject the land-based victim to a result made speculative by the destruction
For that reason we have no difficulty in finding that Gaseteria was guilty of a “wrongful act, neglect or default” within the meaning of the Joint Tortfeasor Contribution Law,
We should make it clear we are not discussing the right of the plane owner to seek indemnification from persons who are not the beneficiaries of the statute as, for example, the owner of another plane involved in a collision in air or a malicious wrongdoer who intentionally causes a catastrophy. We speak only of a negligence action against a victim on land.
We therefore would affirm the action of the trial court denying Gaseteria‘s motion to amend to seek indemnification from RKO.
For affirmance in part and reversal in part—Justices BURLING, JACOBS, PROCTOR, HALL and SCHETTINO—5.
Dissenting in part—Chief Justice WEINTRAUB, and Justice FRANCIS—2.