(concurring). The common-law rule against contribution amongst joint tortfeasors had its origin in Merryweather v. Nixan, 8 T. R. 186 (1799); it is no longer law in England. See Clerk & Lindsell, Torts (10th ed. 1947) 102. Although that case dealt only with intentional wrongdoers acting in concert, courts throughout the United States extended its doctrine to preclude contribution between tortfeasors who acted independently, though concurrently, and whose wrongs were unintentional, though negligent. Prosser, Torts (1941) 1113. Our cases applying the common law consistently denied contribution, asserting flatly that whenever the injury was occasioned by two or more tortfeasors they could not claim contribution inter se. Newman v. Fowler, 37 N. J. L. 89 (Sup. Ct. 1874); Public Service Ry. Co. v. Matteucci, 105 N. J. L. 114 (E. & A. 1928); Malinauskas v. Public Service Interstate Transp. Co., 6 N. J. 269, 274 (1951). Cf. Douglas v. Sheridan, 26 N. J. Super. 544, 546 (Law Div. 1953).
The doctrine, as thus broadly applied, had little to support it. John Doe and Richard Roe may have driven their cars negligently with resulting accident and injury to Jane Doe, a passenger in John’s car. Jane may have sued Richard and recovered fully; yet Richard could not have compelled John to bear his share even upon a showing that John’s negligence was gross and Richard’s only slight. This result did violence to basic equitable notions that those whose fault caused the injury should, in good conscience, bear their just shares of the burden. As Dean Prosser has forcefully put it:
“There is obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were, equally, unintentionally responsible, to be shouldered onto one alone, according to the accident of a successful levy of execution, the plaintiff’s whim or malevolence, or his collusion with the other wrongdoer, while the latter goes scot free.”
*401If Jane happened to be the wife of John, additional considerations may have been brought into play. The common law did not recognize a wife as an independent entity and she could not maintain any action against her husband for the tort resulting in her injury. Although Blackstone’s concept that the very being or legal existence of the wife was incorporated into that of her husband has withered under the onslaught of married women’s legislation and a new social order, a majority of the states, including our own, still refuse to entertain tort actions between spouses. Prosser, supra, 901; R. S. 37:2-5; Hudson v. Gas Consumers’ Association, 123 N. J. L. 252 (E. & A. 1939); Lang v. Lang, 24 N. J. Misc. R. 26 (Circ. Ct. 1946). Cf. Bendler v. Bendler, 3 N. J. 161 (1949). The ever-increasing minority of the states which disapprove this position view it simply as an historical survival which has no justifiable place in modern times. See Prosser, supra, 904; Courtney v. Courtney, 184 Okl. 395, 87 P. 2d 660 (Sup. Ct. 1939); Brandt v. Keller, 413 Ill. 503, 109 N. E. 2d 729 (Sup. Ct. 1953). Cf. Jaeger v. Jaeger, 262 Wis. 14, 53 N. W. 2d 740 (Sup. Ct. 1952). Those who seek a mid-twentieth century basis for the majority rule hastily reject the quaint notion that since the spouses are “one person, one cannot sue the other” but urge that it does serve to preserve domestic tranquillity. In the rare instances where the wife will sue her husband despite his objection there is probably not much tranquillity to preserve; in the other instances the husband, protected by insurance, may welcome her action. In any event, such policy as may possibly prevail against tort actions between spouses clearly has no bearing on situations which do not involve any direct proceedings between them as adverse party litigants. See Hudson v. Gas Consumers’ Association, supra; Clement v. Atlantic Cas. Ins. Co., 25 N. J. Super. 96 (Cty. Ct. 1953), affirmed 13 N. J. 439 (1953); Pennsylvania Greyhound Lines, Inc. v. Rosenthal, 14 N. J. 372 (1954).
In the Hudson case a husband negligently injured his wife while he was engaged in the performance of his duties for his employer. The Court of Errors and Appeals held that *402there was no policy prohibiting a tort action by the wife against the employer, notwithstanding that the employer would presumably have a cause of action for reimbursement against the husband. Cf. Jones v. Kinney, 113 F. Supp. 923 (D. C. Mo. 1953). In the Clement case a wife recovered a New York judgment in a tort action against her husband and thereafter sued her husband’s insurance carrier in New Jersey; recovery was allowed upon the view that New Jersey’s policy against actions between spouses does not extend to such circumstances. In the Rosenthal case the injured party recovered against one tortfeasor and married the other. This court found no restriction against a later action for contribution under L. 1952, c. 335, by the tortfeasor who had paid, against the other tortfeasor. In each of the foregoing instances the interests of justice dictated recovery and since the New Jersey actions were not between spouses as adverse party litigants, our courts found no policy obstacles.
It seems entirely clear that good sense and policy would support Richard’s right to maintain an independent action for contribution against John, even where the injured Jane was the wife of John. To the extent that the majority opinion suggests a contrary view, I respectfully dissent. However, the issue which has been presented by the parties for determination is one of statutory construction rather than policy. The Joint Tortfeasors Contribution Law (L. 1952, c. 335) provides that the right of contribution shall exist among joint tortfeasors, expressly defined to mean “two or more persons jointly or severally liable in tort for the same injury.” I agree that this statutory language is not sufficiently broad to extend to the instant case in which the wife suffered her injuries through the negligence of her husband and another. Under the settled law of our State she could not maintain any action against her husband for her injuries and, in common legal parlance, her husband was not “liable in tort.” The Legislature was fully aware of this settled law and the ordinary meaning of its terminology and I have found nothing whatever in the history or terms of the Contribution Law to suggest its use in any dif*403ferent sense. Since the court’s proper function is simply to ascertain and effectuate the legislative meaning, the construction in the majority opinion would appear to be the proper one; if it be considered narrow and its consequences socially undesirable (see 26 Temp. L. Q. 453 (1953)) the remedy lies in the hands of the Legislature.
Justice Brennan joins this opinion.
Jacobs and Brennan, JJ., concurring in result.
For affirmance — Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan — 7.
For reversal — None.