Altzheimer v. Cent. R. R. of N.J.

• Decision Date: 11 November 1907
• Citation: 75 N.J.L. 424,67 A. 1051
• Parties: ALTZHEIMER v. CENTRAL R. R. OF NEW JERSEY et al.
• Court: New Jersey Supreme Court

67 A. 1051

75 N.J.L. 424

ALTZHEIMER

v. CENTRAL R. R. OF NEW JERSEY et al.

Supreme Court of New Jersey.

Nov. 11, 1907.

Action by George Altzheimer, as administrator, etc., against the Central Railroad of New Jersey and another. On demurrer to replication. Judgment for plaintiff on demurrer.

Argued June term, 1907, before the CHIEF JUSTICE, and FORT and REED, JJ.

Warren Dixon, for plaintiff. W. D. Edwards and Sherrerd Depue, for defendants.

REED, J. This action is brought to recover damages for the death of Theresa Altzheimer, by her administrator, under the death act. The death occurred more that two years after the accident. To the declaration a special pleading was interposed, setting up that the cause for action occurred more than two years before the bringing of the suit in question, and therefore was barred by the statute, because at the time of the beginning of such suit by the administrator the deceased, if living, could not have maintained her action. The replication of this plea set forth that, at the time of the death of said deceased, there was an action pending for the recovery of damages for the injuries from which decedent died, which said action thus pending had been brought within two years after the said injuries were received. To this replication a demurrer was filed.

The act under which the suit is brought provides that whenever the death of a person shall be caused by the wrongful act or neglect of another, and the act, neglect, etc., is such as would, if death had not ensued, have entitled the person injured to maintain an action, then, and in every such case, the person who would have been liable if death had not ensued shall be liable, notwithstanding the death, etc. It then further provides that every such action shall be commenced within 12 calendar months after the death of deceased person. The question raised by the pleadings is that the facts stated show that the insistence of the defendant is that at the time of the death of Theresa Altzheimer the company was not liable to an action for the injury which she had received, because the action was barred by the statute of limitations; therefore that the condition upon which the action under the death act is permitted did not exist. In support of this view, the opinion of the Canada Supreme Court, reported in Canadian Pac. R. R. Co. v. Robinson, 10 Can. Sup. Ct. 392, was invoked. In that case, under an act similar to ours, it was held that, where an action for injury was...