(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 *85of vital evidence. Accordingly the statute itself establishes fault. Cf. United States v. Praylou, 208 F. 2d 291 (4 Cir. 1953), certiorari denied 347 U. S. 934, 74 S. Ct. 628, 98 L. Fd. 1085 (1954). Our thesis is not dispelled by the circumstance that the statute leaves the pilot liable only for negligence. N. J. S. A. 6:2-7. His situation differs from the owner’s in that he is not chargeable for neglect in the maintenance of the plane whereas the owner is responsible therefor as well as for the pilot’s failure if the latter be his employee or agent. The cause of the crash being difficult to ascertain, it is reasonable for the Legislature in making a finding of fault to exempt therefrom the pilot whose lips are frequently sealed by the disaster and who indeed may himself be the victim of the owner’s negligence.
Eor 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, N. J. S. 2A :53A-1 et seq., and hence entitled to seek contribution from a joint wrongdoer. But for the same reason Gaseteria should not be permitted to compel the land-based defendant, RKO, to litigate the question whether Gaseteria was in fact negligent. That is the very issue the Legislature intended to foreclose. To permit Gaseteria to litigate that issue would be to subject RKO, an owner of land-based property, to the very hazards of proof which prompted the legislative decision.
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. R. S. 6:2-5 declares the ownership of space “to be vested in the several owners of the surface beneath, subject to the right of flight described in section 6:2-6 of this title.” R. S. 6:2-6 provides that “Flight in aircraft over *86the lands and waters of this state is lawful, unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner * * Thus the statute makes unlawful the operation of a plane when it interferes, as it ■did here, with the use which RKO made of its land. R. S. 6:2~7 makes the owner “absolutely liable for injuries to persons or property on the land or water * * *.” The ■sole defense or matter of mitigation with respect to liability to the owner of property on land is contained in the same section in the phrase “unless the injury is caused in whole or in part by the negligence * * * of the owner or bailee of the property injured.” We need not explore the precise meaning of the quoted phrase. It is enough to say that the statute establishes Gaseteria’s fault as between it and RKO, leaving open, as between them, the further question whether RKO also negligently contributed to its own injury. Hence Gaseteria may not seek indemnification from RKO, for to permit it to do so would be to permit indemnification upon an evaluation of degrees of fault. Expressed in other terms, it would permit the trier of the facts to find Gaseteria was guilty of no wrong with respect to RKO in the teeth of a statute which says that it was.
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 Erancis—2.