Lily Hayon (Lily) was a passenger, on April 26, 1973, in an automobile which came in collision with a truck owned by the defendant, Coca Cola Bottling Company of New England (Coca Cola), then operated by the co-defendant, Kenneth S. Lindsay (Lindsay). The automobile was operated by Lily’s husband, Eli Hayon (Eli). Lily commenced this tort action against Coca Cola and Lindsay by writ dated January 8, 1974. On June 27, 1974, a judge of the Superior Court, Middlesex County, allowed a motion brought by Coca Cola and Lindsay seeking to implead Eli as a third-party defendant. See G. L. c. 231, § 4B, repealed by St. 1975, c. 377, § 73 (effective July 1, 1975,
id.
§ 164). Cf. Mass. R. Civ. P. 14,
A judge of the Superior Court heard argument on Eli’s motion to dismiss Lindsay’s action, and allowed that motion in a memorandum of decision and order dated May 14, 1975. The judge reasoned that Eli was not liable to Lily because of the common law doctrine of interspousal immunity. The judge concluded that Eli could not be jointly liable with Lindsay, that Lindsay consequently could have no right to contribution against Eli, and that Lindsay thus had
*646
no right to implead Eli. On December 29,1975, we decided the case of
Sorensen
v.
Sorensen,
Shortly thereafter, on November 18, 1976, we decided in
Pevoski
v.
Pevoski,
The judge, in his report, stated his belief “that, as a matter of discretion, it would be in the interests of efficient judi
*647
rial administration to permit the third party action to go forward.”
1
He concluded, however, that, as matter of law, Eli was entitled to dismissal. The reasons of the Superior Court judge are two in number: first, it was unclear to him whether the holding of
Lewis
applied to the case before him; and second, he believed that the contribution statute, G. L. c. 23IB, did not apply. We need not dwell on the first reason; the state of uncertainty regarding the retroactive effect of
Lewis
was ended by Pevoski.
2
The instant case has not been settled, nor has it gone to judgment, nor does the statute of limitations present a bar.
Pevoski
v.
Pevoski, supra
at 361. Cf.
Wadsworth
v.
Boston Gas Co.,
The only question remaining is whether the contribution statute, G. L. c. 23IB, applies to the instant case. The judge *648 reasoned as follows: (1) prior to the enactment of c. 231B a plaintiff could choose among joint tortfeasors, any one of whom might be liable for the whole amount of the plaintiff’s damages without a right to contribution; (2) at the date on which c. 23IB became effective, January 1, 1963, the common law rule was that a spouse could not be a tortfeasor with respect to his or her spouse; (3) because the right to contribution was created by the Legislature, that right is limited to its meaning and scope as of the time of its creation; (4) therefore, the doctrine of the Lewis and Pevoski decisions, creations of the judiciary rather than of the Legislature, cannot expand the scope of c. 231B beyond its reach in 1963.
We think that this reasoning is in error. General Laws c. 23IB, § 1
(a),
inserted by St. 1962, c. 730, § 31, creates and defines the “right of contribution.” It states:
“(a)
Except as otherwise provided in this chapter, where two or more persons become jointly
liable in tort
for the same injury to person or property, there shall be a right of contribution among them even though judgment has not been recovered against all or any of them” (emphasis added). In determining which persons may become jointly liable in tort — a group also designated by the term “joint tortfeasor” in other sections of the statute — we must attempt to ascertain and carry out the intent of the Legislature.
Baker Transp., Inc.
v.
State Tax Comm’n,
371 Mass, 872, 877 n.11 (1977). To that end we examine the whole statute with attention to the language used, the evil to be remedied, and the object to be accomplished by enactment.
New York Cent. R.R.
v.
New England Merchants Nat’l Bank,
We conclude that G. L. c. 23IB applies to the third-party action of Lindsay against Eli for contribution as a joint tortfeasor, and that the common law doctrine of interspousal immunity presents no barrier to that action or to the addition of Eli as a party defendant in the original action. We therefore order that the judge’s dismissal of Lindsay’s third-party action against Eli be vacated. The case is remanded to the Superior Court for further proceedings.
So ordered.
Notes
A motion by Lily to add Eli as a party défendant in the original action was allowed by consent on November 8,1976. Eli’s motions to vacate that order and to dismiss were denied by a different judge on January 25, 1977, and he subsequently filed notices of appeal. Lindsay maintains before us that although the addition of Eli as a defendant theoretically achieves the same effect as Lindsay’s suit for contribution — ensuring that Lindsay will only be liable for his pro rata share of any recovery — Lindsay should be permitted to maintain his own suit “to protect himself against possible discontinuance of the plaintiff’s action against Eli or the plaintiff’s failure to enforce her execution against her husband.” These procedural circumstances do not in any way affect the substantive issues before us, and we think it appropriate to dispose of the issues within the context in which they are now presented.
The accident in Pevoski occurred on August 8,1971, prior to the accident in the instant case.
The judge did not rest his order of October 6,1976, on the retroactivity question. His refusal to reconsider that order following the Pevoski decision may, therefore, have been based entirely on his determination of the second issue, discussed infra.