Blackmon v. Govern

• Decision Date: 09 March 1956
• Docket Number: Civ. A. No. 933-55.
• Citation: 138 F. Supp. 884
• Parties: Mary BLACKMON and William Blackmon, Plaintiffs, v. Benjamin GOVERN and Ada Govern, Defendants.
• Court: U.S. District Court — District of New Jersey

138 F. Supp. 884

Mary BLACKMON and William Blackmon, Plaintiffs, v. Benjamin GOVERN and Ada Govern, Defendants.

Civ. A. No. 933-55.

United States District Court D. New Jersey.

March 9, 1956.

Marcus & Levy, By Harry Chashin, Paterson, N. J., for plaintiffs.

Steisel, Rey & Gundersdorf, By Arthur C. Gundersdorf, Jersey City, N. J., for defendants.

HARTSHORNE, District Judge.

In this automobile negligence action, in which this Court has jurisdiction solely because of diversity of citizenship, the complaint was filed two years and two days after the accident occurred. Defendants accordingly moved to dismiss the action on the ground that the two-year New Jersey statute of limitations, N.J.S.A. 2A:14-2, on personal injury actions has run, and also moves to amend its answer to raise the bar of such statute. To this motion plaintiffs answer that the defendants are, and always have been, non-residents of New Jersey, so that the above statutory bar is tolled by the provisions of N.J.S.A. 2A:14-22, providing that if any person against whom such an action lies "is not a resident of this state when such cause of action accrues, or removes from this state after the accrual thereof and before the expiration of the times limited in said sections * * * the time or times during which such person * * * is not residing within this state * * * shall not be computed as part of the periods of time within which such an action is required to be commenced * *." In turn, defendants call attention to the fact that they were served under the provisions of the Motor Vehicle Act, authorizing service on the Director of the Division of Motor Vehicles in the Department of Law and Public Safety of New Jersey. N.J.S.A. 39:7-2, P.L. 1950, chapter 251, page 866, § 1.

It should be added that plaintiffs are residents of New Jersey, defendants always residents of New York, while the accident occurred in New Jersey. In substance, defendants contend that the ordinary two-year statutory bar applies; plaintiffs that the statutory provisions, suspending or tolling the running of the statute as to non-residents, apply; to which defendants urge that the Motor Vehicle Act provisions convert them from non-residents into residents, subject to the ordinary two year statute. The issue is thus as to the applicability of the above provisions of these New Jersey statutes — the Motor Vehicle statute and these two provisions of the statute of limitations. This being a diversity of citizenship case, this Court must therefore apply the law of New Jersey. Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L. Ed. 1477; Guaranty Trust Co. v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L. Ed. 2079.

The only cases in New Jersey dealing with the application to cases such as the present of the above provisions of the Motor Vehicle Act and of the statutes of limitation are Gotheiner v. Lenihan, Sup.1942, 25 A.2d 430, 20 N.J. Misc. 119 and Whalen v. Young, Super. Law Div. 1953, 28 N.J.Super. 543, 101 A. 2d 64. These decisions, both citing many authorities, hold that in a case such as this the running of the limitation period is suspended by the defendant's absence from the state, and that this absence continues despite the above provisions for service under the Motor Vehicle statute.

Were these decisions those of Appellate Courts, they would necessarily be considered, in the absence of contrariety, to state the governing New Jersey law in that regard. West v. American Telephone & Telegraph Co., 1940, 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139. However, defendants call attention to the fact that they are both nisi prius decisions, the first being a decision by a Judge sitting as a Supreme Court Commissioner at trial term, the second by a Superior Court Judge, also sitting at trial term, calling attention to King v. Order of United Commercial Travelers, 1948, 333 U.S. 153, 68 S.Ct. 488, 92 L. Ed. 608, where our highest court held that a decision of a South Carolina trial court could not be deemed to express the law of the state. But it should be noted that the decisions of this South Carolina trial court were never printed, but were simply filed in the court records, so their statement of the law was in fact unknown generally, even in South Carolina, and even when known was not considered authoritative outside the local jurisdiction where rendered. Indeed, in King, the Court expressly reiterates the rule it laid down in Fidelity Union Trust Co. v. Field, 1940, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109, where our highest court held that in a diversity case two decisions of the New Jersey Court of Chancery were binding on the Federal Courts, even though the Federal Courts might differ on the merits. It would thus seem that, if there are no indications of the courts of New Jersey to the contrary, these two printed decisions of trial courts with statewide jurisdiction, in accord, do show what the New Jersey law is on the point in question, and as such, bind this Court....