Temporarily Assigned, dissenting. I would modify the judgments in these cases to strike the items of prejudgment interest for the following reasons:
1. R. 4:42-11(b), providing for prejudgment interest in tort cases, is predominantly of a substantive nature, not within the category of practice and procedure governable by rules to be promulgated by this Court under Article YI, Section II, paragraph 3 of the 1947 Constitution.
2. This appeal is not an appropriate vehicle for the Court to employ to adopt the substance of the cited rule in the purported exercise of the court’s power to change the common law by the adjudicative process.
3. If it were appropriate for the court to consider adoption of a rule of the general nature of R. 4:42-11(b) in the course of this appeal, I would oppose its adoption, primarily because the rule is mandatory, and I believe any such rule should be permissive and discretionary with the trial court.1
I.
This Court’s rule-making power is declared by the Constitution as follows:
*377The Supreme Court shall make rules governing the administration of all courts in the State and, subject to law, the practice and procedure in all such courts. * * *. (Art. VI, § II, par. 3)
On the face of that language the grant of general rule-making power to the court extends1 only to practice and procedure. If, therefore, a rule ordaining that the recovery of a tort judgment shall be attended by allowance of interest on the award of damages antecedent to the date of the judgment is not within the common acceptance of the term “practice and procedure”, the Court was without authority to promulgate it.
The general antonym of practice and procedure is substantive law. In Winberry v. Salisbury, 5 N. J. 240, 247-248 (1950), this court defined the latter term in the present context as that law “which defines our rights and duties”, as distinguished from “pleading and practice, through which such rights and duties are enforced in the courts”. By considered dictum,, the court declared that the phrase, “subject to law,” in the constitutional text did not mean that the Legislature could override rules of practice and procedure adopted by the court but rather that it meant that the rule-making power “must not invade the field of the substantive law as such”. (Id. at 248). It was observed that, “[w]hile the courts necessarily make new substantive law through the decision of specific cases coming before them, they are not to make substantive law wholesale through the exercise of the rule-making power.” Ibid.2
*378These observations are not of mere historical interest in the present framework. As the opinion of the plurality shows, the boundaries between practice and procedure and substantive law are often hazy and the categories are not always easily compartmentalized. But the Constitution contemplates that such boundaries shall be recognized and given heed every time the court promulgates a rule purporting to regulate practice and procedure. They surely must be staked out if a rule is subjected to constitutional challenge, as here. While I am of the view that the instant subject matter — prejudgment interest on a tort award — is in the area of damages and therefore on principle clearly assimilable to the field of substantive right rather than procedure, the plurality, while holding to the contrary, at least confesses its doubts on the subject: “* * * it surely cannot be said to have been palpably inappropriate to think of prejudgment interest as a matter of procedure in the context of law-making.” (Emphasis added.) If there is any doubt, the court in my view should take into consideration in resolving it the constitutional consequences in terms of Winberry. Those consequences are that in making a considered determination, on express challenge of the point, as here, that an already adopted rule is in the procedural field, the court is also automatically perforce of Winberry staking out the subject matter as exclusively its own and oif-limits to the other branches of government. In that light, it would seem to me unthinkable that the rule should be considered procedural, as I can*379not conceive any justification under our democratic system for a view that the legislative branch of the government would ever be powerless to ordain whether or to what extent prejudgment interest should be added to a tort (or, for that matter, contract) award. That recent legislatures have not regarded the subject as beyond their purview is clearly evidenced by N. J. S. A. 59:9-2, subd. a. See note 1, supra.
The plurality opinion purports not to be making such a determination of exclusivity of jurisdiction in the Court, describing the issue as a “touchy matter.” But the determination of court exclusivity as to practice rules has already been made for this State in Winberry and George Siegler Co. v. Norton, supra; there has been no evidence to indicate that the Court contemplates an overturning of Winberry in the foreseeable future, indeed to the contrary; and the general public and the other branches of government are entitled to view Part II of this decision and Winberry, taken together, as constituting a doctrine that legislating prejudgment interest is the exclusive preserve of the Court. That prospect, it seems to me, is rife with the portent of general misgivings, better avoided as against the alternative of later adjudicative adoption of the principle, if still deemed desirable, rather than by rule-making, so that the Legislature can assuredly have the last word on it.3
In the light of the foregoing, the fact noted in the plurality opinion that a few cases have held prejudgment interest “remedial” in the sense that, where a rule therefor has been legally adopted, it has not been thought unfair to apply it *380to actions begun before adoption, should bear little weight in deciding whether such an interest rule is procedural rather than substantive for purposes of a principle of state constitutional dimension requiring it to be categorized as one or the other. More consonant with the' policy considerations mentioned above inherent in the Judicial Article and its interpretation in Winberry concerning such a choice is the line of authority cited in the plurality opinion for the principle that damages (including interest) is substantive in relation to rules of choice of law. So, too, is the precept that interest is substantive for purposes of application of state rather than federal law in diversity cases. See 36 C. J. S. “Federal Courts” § 189(8), p. 496 (1960); New Amsterdam Casualty Co. v. Soileau, 167 F. 2d 767, 771 — 772 (5 Cir. 1948), cert. den. 335 U. S. 822, 69 S. Ct. 45, 93 L. Ed. 376 (1948). The measure as well as the right of recovery would clearly appear to the litigants to pertain to the substance of their rights or privileges. Even prior to the recent example of legislative initiative on prejudgment interest contained in the New Jersey Tort Claims Act (see note 1 supra), our own decisions had strongly suggested the traditional control by the legislature over interest. See Consolidated Police, &c., Pension Fund Commn. v. Passaic, 23 N. J. 645, 651-652, 653 (1957). Thus court and legislature have conjointly regarded the subject as basically substantive.
It is of course evident that even aside from ~Winberry the court does not under the Constitution have power to promulgate rules other than for practice, procedure and administration of the courts. But the subsistence of Winberry argues for judicial moderation in selecting subject matter for rule-making, with an eye toward avoiding areas heavily laden with such substantive aspects, deeply interlaced with pervasive public policy, as are presented by the subject here of concern.
For all the reasons stated I would strike R. 4:42-11(b) as beyond the constitutional rule-making power of the Court.
*381II
I pass to consideration of Part I of the plurality opinion, which, as I understand it, concludes that assuming arguendo that the rule in question is substantive and therefore should not have been promulgated as a rule of court, the court should nevertheless appraise its merit in the court’s judicial capacity, which extends to alteration of substantive law. I do not know the extent, if any, to which the resolution of the plurality to take that course may be influenced by its alternative decision, expressed in Part II of thei opinion, that the rule is sufficiently procedural to have justified its promulgation as a rule of court. Eor my part, having concluded the rule should he stricken, I would abstain in this case from consideration of its merits as a modification of the common law to avoid even a remote inference by the parties or the public that the result is basically a ratification of the improperly adopted rule. I would await such fresh case, if any, in which the desirability of the general principle might be advanced as an incident to the prosecution of the litigation, as contrasted with these cases, where the issue basically presented to the trial courts was the validity vel non of the promulgation of the specific rule.
This may seem like marching the soldiers up the hill and marching them down again without doing battle, but the philosophical implications of the matter go further. If the course here taken is acceptable, then the fundamental principle that courts cannot make substantive law “wholesale’’ by rule-making (Winberry, supra, 5 N. J. at 248) is susceptible of erosion since, in the case of any like future challenge to a court rule as substantive, the court might employ the instant decision as a precedent and, as here, adopt the substance of the rule “judicially”, thereby effectively albeit unintentionally circumventing the constitutional proscription.
The distinction between law-making by a court as a quasi-legislature (rule-making) and law-making by a court in the *382course of adjudication of causes between parties is fundamental to Anglo-American political science and to our Judicial Article. It should not be lightly elided. Our Constitution implicitly accepts the course of change in the common law through the judicial process. Such change is not, however, an avowed objective of that process but rather the incidental residue of the decisions of concrete controversies between litigants, as cogently developed in the dissenting opinion of Justice Mountain. The prime business of the court on an appeal, in my view, is to decide the case rather than to formulate or change the law. The court’s consideration whether doing justice in the particular and like cases requires a change in the old or the formulation of new substantive doctrine, see Slate v. Culver, 23 N. J. 495, 505 (1957), is ordinarily subjected to the crucible of opposing argument by a specific litigant whose purse is affected by the proposed change. This factor, in addition to the judicial sense that long-range public acceptance of judge-made changes in the law is largely dependent on the gradualness of such changes, cf. Falcone v. Middlesex Co. Medical Soc., 34 N. J. 582, 596 (1961) (per Jacobs, J.), is, I believe, integral to the survival of law-making through the adjudicative process in our political system.
Judicial law-making by promulgation of rules of court, on the other hand, is purposeful and avowed policy-making in gross, not essentially distinguishable in nature from the functioning of the elected legislative body. It is highly useful and appropriate in relation to practice and procedure in the courts. It is unacceptable and repugnant to our institutions in the substantive area. The relative efficiency or inefficiency of law-making by rule promulgation as compared with adjudication, discussed in the plurality opinion, is, I think, quite irrelevant to the underlying constitutional and political questions implicated.
These considerations would impel me to build a prophylactic wall between the necessary adjudication herein that R. 4:42-11(b) is invalid rule-making and the'unnecessary em*383barkation in this particular appeal on the inquiry whether we should “judicially” adopt the substance of the rule. I would refrain from the latter.
Ill
Were it necessary to decide whether the substance of the rule should be embraced judicially by the Court as a matter of substantive law, I would conclude in the negative, at least as to the rule as drawn.4 The primary objection to it -is its mandatory nature. There would be no serious objection to the principle of prejudgment interest if its application were subject to the discretion of the trial court in the particular case, as continues to be the rule on interest in equity and in relation to unliquidated damages in contract cases. See Small v. Schuncke, 42 N. J. 407, 415-416 (1964); Consolidated Police, &c., Pension Fund Commn. v. Passaic, supra, 23 N. J. at 655. The justice of making the defendant pay the claimant for the use of the money declared due during the pendency of the action is as pertinent to the contract or equitable obligor as to the tort obligor. Yet the sanction of interest remains discretionary in the former instances. And for good reason! Experience teaches that in many situations the winner of a money award is nevertheless denied costs by the court because of equities the other way. Why disarm the trial judge of discretion to deny, or to allow only partial prejudgment interest in tort cases when a comparable balance of equities points in that direction?
As one of numerous illustrations which might be afforded, there might be intervening appeals between institution of action and final judgment, inordinately protracting the interest-payment period under the rule, yet where the occasion for the appeal was not attributable to acts of the defendant but to those of the trial court of the plaintiff. Defendant.may even *384have prevailed on such appeals. Must interest be nevertheless inexorably awarded the plaintiff for the entirety of the intervening period before final judgment without the tempering discretion of the judge? Or suppose the defendant tenders at the outset a settlement offer which the plaintiff unreasonably refuses. Under the rule as framed this is irrelevant to the accrual of the interest. Cf. R. 4:58-3.
The main rationale advanced for the rule is that it merely transfers to the plaintiff interest which defendant or his insurer was drawing on money which theoretically was due the plaintiff the moment the tort took place or the action instituted. But not all tort defendants are insured; many are insured for subsantially less than the trial award; and many, who are not insured at all or are insufficiently insured, may be relatively impecunious. Torts encompass not only automobile and product liability cases, but defamation, malicious prosecution, interference with economic opportunity, household negligence and miscellaneous other causes of action where insurance may well be non-existent, spotty or inadequate, and where defenses may be advanced in good faith. In such instances the defendant may not have actually earned interest on the award during the intervening period, or on the total amount of the award, and allowance of prejudgment interest on the whole award could well operate oppressively or unfairly. Surely discretion should be reposed in the trial court in all cases to control the matter.
It is difficult to resist the impression that the impelling motivation for adoption of the rule was clearance of trial dockets in automobile and kindred insured-tort situations by imposing coercive pressure on insurance companies to settle cases early. But beyond the observation above that others than insurers may be penalized by the rule, it does not seem fair to assume, as does the rule, that only defendants or their insurers are responsible for unreasonable failures of litigants to arrive at pretrial settlements. The rule may well operate to encourage unreasonable recalcitrance on the part of some plaintiffs. It is a blunderbuss which strikes its objects indis*385criminately and without necessary regard to the justice of its effect in particular cases. In my view it does not, as drawn, subserve justice or promote the interests of calendar control in a justifiable manner. It is, moreover, potentially inconsistent with the policy of R. 4:58-3 (settlement offer of party not a claimant).
Since the argument of the appeal the court has amended R. 4:42-11(b), effective September 10, 1973, to render it consistent with the New Jersey Tort Claims Act, L. 1972, c. 45, which became effective July 1, 1972. That act provides that “No interest shall accrue prior to the entry of judgment against a public entity or public employee.” N. J. S. A. 59:9-2a. The merits of the rule as thus amended have not been argued on the appeal, and X take no position on it, not having been assigned to the Court when the amendment was adopted.
Many objective students of the subject have thought that the majority in Winberry misread the actual intent of the 1947 Constitutional Convention and its Committee on the Judiciary in declaring the rule-making power of the court not subject to overriding or original action by the Legislature in relation to practice and procedure. See Kaplan & Greene, “The Legislature’s Relation to Judicial Rule-Making: An Appraisal of Winberry v. Salisbury", 65 Harv. L. Rev. 234 (1951) ; and the concurring opinion of Justice Case (5 S. J. at 255). But see Pound, “Procedure under Rules of Court in New Jersey”, 66 Harv. L. Rev. 28 (1952). However, the dictum in Winberry was transmuted into virtual holding in George *378Siegler Co. v: Horton, 8 H. J. 374, 381-382 (1952), and the Court has never since retreated from the position of exclusivity in the Court over practice and procedure. See also State v. Otis Elevator Co., 12 N. J. 1, 12 (1953) ; Sattelberger v. Telep, 14 N. J. 353, 369-370 (1954) ; State v. Haines, 18 N. J. 550, 556-557 (1955). I therefore think that view must be posited as correct for purposes of this case. Were the court’s jurisdiction over practice and procedure not exclusive, the inter-branch tension I foresee as possibly incident to the instant decision, see infra, would be lessened. If the Legislature knew it always had the last word as to a court rule, whether procedural or substantive, it would be less likely to be concerned over what might seem to it overreaching by the court in a given area.
The point made in the text is not rendered less relevant by the circumstance that the Legislature has acted on one aspect of the subject of prejudgment interest in Section N. J. S. A. 59:9-2(a) of the New Jersey Tort Claims Act (see note 1 supra) or that the court has amended R. 4:42-11(b) to accord therewith. Court deference to legislation in selected instances does not derogate from Winberry exclusivity; inter-branch tension may persist; and the advisability of judicial abstention from rule-making in so substantive an area is not lessened.
See note 1, supra.