Marshall v. Geo. M. Brewster & Son, Inc.

• Decision Date: 02 April 1962
• Docket Number: No. A--82,A--82
• Parties: , 95 A.L.R.2d 1153 Thomas O. MARSHALL, Jr., Administrator of the Estate of Ned Marshall, Deceased, Plaintiff-Appellant, v. GEO. M. BREWSTER & SON, INC., a corporation of N.J., et al., Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 176

37 N.J. 176

180 A.2d 129, 95 A.L.R.2d 1153

Thomas O. MARSHALL, Jr., Administrator of the Estate of Ned

Marshall, Deceased, Plaintiff-Appellant, v. GEO. M. BREWSTER & SON, INC., a corporation of N.J., et al.,

Defendants-Respondents.

No. A--82.

Supreme Court of New Jersey.

Argued Feb. 5, 1962.

Decided April 2, 1962.

Stanley W. Greenfield, Elizabeth, for the appellant.

James A. Major, Hackensack, for the respondents (James I. Toscano, Hackensack attorney; James A. Major, II, Hackensack, on the brief).

The opinion of the court was delivered by

JACOBS, J.

The Appellate Division reversed the Law Division's denial of the defendants' motion for summary judgment. See Marshall v. Geo. M. Brewster & Son, Inc., 68 N.J.Super. 399, 172 A.2d 458 (App.Div.1961). We granted certification on the plaintiff's application.

The defendant Ned Marshall was killed at a railroad crossing in Pittsburgh, Pennsylvania, when the automobile in which he was a passenger was struck by a train. The accident and death occurred on October 2, 1958. At a later date the plaintiff Thomas O. Marshall, Jr., a resident of Ohio, was appointed as administrator of the decedent's estate. On February 5, 1960 the administrator filed a complaint in the Law Division of the New Jersey Superior Court seeking damages from the defendants. The complaint alleged that the defendants Geo. M. Brewster & Son, Inc., a corporation of the State of New Jersey, Terminal Construction Corporation, a corporation of the State of New Jersey, Joseph Miele Construction Company, Inc., a corporation of the State of New Jersey, Lafera Contracting Company, Inc., a corporation of the State of New Jersey, and Alphonsinia Salvatore, Philip R. Salvatore, Joseph Salvatore, and Anthony J. Salvatore, partners of C. Salvatore & Sons, a partnership, were engaged in a joint venture under the trade name of Mole Constructors and were performing work in and about the crossing; that they had employed and assumed to employ a watchman to warn travelers on the highway of the approach of oncoming trains; and that by reason of the negligence of the aforenamed defendants as well as the defendant John H. Gordon, an agent of Mole Constructors and the operator of the automobile in which the decedent was riding, the decedent had been fatally injured. The defendants, other than the defendant John H. Gordon, filed an answer in which they set forth various defenses, including an assertion that any claim for wrongful death as set forth in the complaint was barred 'by the Statute of Limitations, as provided by the laws of the State of Pennsylvania.' On November 2 1960 Judge Waesche stated that he was unable to determine whether the limitation in the Pennsylvania statute was a 'termination of the substantive right of action itself, or a procedural bar to the remedy only.' Accordingly, he denied the motion for summary judgment under the stated authority of Ennis v. Petry, 29 N.J. 236, 148 A.2d 722 (1959). On appeal, pursuant to leave (R.R. 2:2--3(a)), the Appellate Division concluded that the plaintiff's action should have been brought within the one-year period prescribed in the Pennsylvania statute (see Pa.Stat.Ann. tit. 12, § 1603 (1953)) and that judgment should be entered in favor of the defendants. See 68 N.J.Super., at p. 405, 172 A.2d 458.

The plaintiff contends that the one-year period prescribed in the Pennsylvania statute is 'merely a statute of limitations and is not one conditioning the right of action' and that, consequently, the New Jersey court should apply the two-year limitation in its wrongful death act rather than Pennsylvania's limitation. See Smith v. Smith, 90 N.J.L. 282, 286, 101 A. 254 (E. & A. 1917); Jaqui v. Benjamin, 80 N.J.L. 10, 11, 77 A. 468 (Sup.Ct.1910); Summerside Bank v. Ramsey, 55 N.J.L. 383, 384, 26 A. 837 (Sup.Ct.1893); McClellan v. F. A. North Co., 14 N.J.Misc. 760, 770, 187 A. 337 (Sup.Ct.1936); Leek v. Wieand, 2 N.J.Super. 339, 350, 63 A.2d 828 (Ch.Div.1949); cf. Wright v. Kroydon Co., 9 N.J.Misc. 287, 289, 154 A. 195 (Cir.Ct.1931); N.J.S. 2A:31--3, N.J.S.A. The respondents contend that 'the plaintiff should not occupy a better position in New Jersey than in Pennsylvania' and that 'the State of New Jersey is not a convenient forum for the trial of this action,' citing Starr v. Berry, 25 N.J. 573, 138 A.2d 44 (1958), and Taintor, 'Conflict of Laws, 1958-1959 Survey of Pennsylvania Law,' 21 U.Pitt.L.Rev. 153, 160 (1959). They also refer to the pendency in the United States District Court for the Western District of Pennsylvania of an action which seeks recovery under the Pennsylvania Survival Act (see Pa.Stat.Ann. tit. 20, § 320.601 (1950)) and not under its Wrongful Death Act. See Pa.Stat.Ann. tit. 12, § 1601 (1953). The claim asserted by the plaintiff in his New Jersey action is grounded on section 1601 of Pennsylvania's Wrongful Death Act and not on its Survival Act and we assume that in no event will duplication of recovery be permitted. Under the circumstances we consider that the pendency of the action in the United States District Court has no bearing on the issue presented to us for determination.

It is well settled that where, as here, the alleged wrong upon which the plaintiff rests his New Jersey action occurred in Pennsylvania, the New Jersey court will apply the substantive law of Pennsylvania as it finds it. See In re Carpenter, 142 N.J.Eq. 772, 774, 61 A.2d 446 (E. & A.1948); Restatement, Conflict of Laws § 391 (1934); 2 Beale, Conflict of Laws § 391.1 (1935). It is equally well settled that the New Jersey court will apply its own rules of procedure in the action pending here rather than the rules of procedure which the Pennsylvania court would have applied if the action had been instituted there. See Ferguson v. Central R.R. Co., 71 N.J.L. 647, 651, 60 A. 382 (E. & A.1905); Bullock v. Bullock, 51 N.J.Eq. 444, 450, 27 A. 435 (Ch.1893), affirmed, 52 N.J.Eq. 561, 30 A. 676, 27 L.R.A. 213 (E. & A.1894); Wood v. Malin, 10 N.J.L. 208, 211 (Sup.Ct.1828); Restatement, supra § 585. This latter principle is said to rest on considerations of convenience and practicability since the local bench and bar may not fairly be expected to familiarize itself with the procedural diversities of the various jurisdictions. See Bournias v. Atlantic Maritime Co., 220 F.2d 152, 154 (2 Cir. 1955); Comment, 1 Rutgers L.Rev. 620, 623 (1961). Although these considerations would appear to have little pertinency to the bar of limitations, it is generally held that ordinary statutes of limitation are to be viewed as procedural in nature and therefore subject to the law of the forum. See Smith v. Smith, supra; Leflar, The Law of Conflict of Laws § 66 (1959); Lorenzen, 'The Statute of Limitations and the Conflict of Laws,' 28 Yale L.J. 492 (1919). It is true that this approach may be criticized as permitting recovery by a litigant whose cause of action has been barred at the place it arose, but this may be counterbalanced by the thought that the litigant is merely seeking to assert a just claim within the reasonable though lengthier period of limitation of the state where the wrongdoing defendant is actually found and served. Affording a choice of forum may sometimes be disfavored (see Gore v. United States Steel Corp., 15 N.J. 301, 313, 104 A.2d 670, 48 A.L.R.2d 841 (1954)) but it is not invariably evil in purpose or effect. See Boyle v. G. & K. Trucking Co., 37 N.J. 104, 179 A.2d 514. It is worthy of note that, unlike the legislatures of some of the other states, the New Jersey Legislature has not seen fit to adopt a so-called 'borrowing statute' under which the shorter limitation of the foreign state where the cause of action arose is always to be applied to the local action. See Leflar, supra § 66, p. 120; Note, 'Legislation Governing the Applicability of Foreign Statutes of Limitation,' 35 Colum.L.Rev. 762 (1935).

When the legislature of a state creates or recognizes a right, it may, if it so chooses, subject it to a limitation in such manner that the right is to terminate upon expiration of the limitation. In such case, the limitation will be viewed not as simply procedural but as part of the state's substantive law to be given effect as such in other states as well as in the state of the enactment. See 3 Beale, supra § 604.3, p. 1022; Goodrich, Conflict of Laws § 86, p. 242 (3d ed. 1949). Thus when a legislature adopts a wrongful death act which sets forth a limited period within which suit may be institutedThe legislature may intend that the limitation shall actually condition the right and that the right shall be automatically extinguished in the event suit is not instituted within the prescribed period. On the other hand, the legislature may intend that the limitation operate not as a condition of the right but as the ordinary statute of limitations which is customarily viewed as procedural. Most courts, though by no means all, have construed the limitations in their wrongful death acts as substantively conditioning the rights granted and such construction has been given effect elsewhere. See 3 Beale, supra § 605.1; Leflar, supra § 66, p. 121; Restatement, supra § 605. However, in instances where the courts of the enacting states have construed the limitations in their own wrongful death acts, not as conditioning the rights granted but as simply procedural in nature, other courts have followed the same course and have applied the limitation of the forum rather that the limitation of the State where the cause of action arose. See Goodwin v. Townsend, 197 F.2d 970, 972 (3 Cir. 1952); Note, 'Statutes of Limitation: Lex Loci or Lex Fori,' 47 Va.L.Rev. 299, 307 (1961).

In our own State the Legislature first enacted a wrongful death act in 1848. See L.1848, p. 151. That statute set forth that the proceeding shall be brought by the personal representative, 'provided, that every such action shall be commenced within twelve calendar months' after the death of the...