Boniewsky v. Polish Home of Lodi

• Citation: 136 A. 741
• Decision Date: 24 March 1927
• Docket Number: No. 25.,25.
• Parties: BONIEWSKY v. POLISH HOME OF LODI.
• Court: New Jersey Supreme Court

136 A. 741

BONIEWSKY

v. POLISH HOME OF LODI.

No. 25.

Court of Errors and Appeals of New Jersey.

March 24, 1927.

(Syllabus by the Court.)

[COPYRIGHT MATERIAL OMITTED]

Appeal from Supreme Court.

Action by Josefa Boniewsky, administratrix of the estate of Frank Boniewsky, deceased, against the Polish Home of Lodi. From a judgment for plaintiff (132 A. 202), defendant appeals. Affirmed, with directions.

Ward & McGinnls, of Paterson, for appellant.

Weinberger & Weinberger, of Passaic, for respondent.

WALKER, Chancellor. This suit was commenced in the Supreme Court and was referred for trial to the Bergen circuit court. It came before Smith, J., and a jury, on the usual circuit record; that is, a transcript of the pleadings in the Supreme Court. Two amendments were allowed upon the trial. Of them hereafter. The jury did not return the verdict which is printed in the state of the case, but, inspection of the transcript shows that they returned a verdict as follows:

"The above-entitled cause was tried before Hon. William A. Smith and a jury on the 25th and 26th days of November, 1924, and the jury rendered two verdicts, one for $100 in favor of Josefa Boniewsky, administratrix, and against the defendant, the Polish Home of Lodi, a corporation, and one in the gum of $12,000 in favor of Josefa Boniewsky for herself and two infant children, to wit, Stella and Jennie Bpniewsky, and against the defendant, the Polish Home of Lodi, a corporation."

There are not two verdicts here, but one with two subdivisions, and this is allowable.

No judgment is printed in the transcript; but, resort being again had to the record, we find a judgment rendered upon the above verdict as follows:

"Whereupon it is adjudged that the plaintiff, Josefa Boniewsky, administratrix ad prosequendum of the estate of Frank Boniewsky, do recover of the said defendant, Polish Home of Lodi, a corporation, the sum of $100 damages, and that the plaintiff, Josefa Boniewsky, for herself and two infant children, to wit, Stella and Jennie Boniewsky, do recover of the said defendant, Polish Home of Lodi, a corporation, the sum of $12,000 damages, together with their costs, which have been taxed at the sum of $104.61, making in the whole the sum of $12,204.61."

These inaccuracies and omissions are contrary to rule and are censurable.

Before the entry of the judgment in the Supreme Court, the defendant appellant obtained a rule to show cause why the verdict should not be set aside and a new trial granted. And the Supreme Court, after hearing, Boniewsky v. Polish Home of Lodi, 132 A. 202, discharged the rule to show cause, which reserved exceptions, and refused to hear the exceptions that were reserved, except damages and weight of evidence. Thereafter the above judgment was entered upon the verdict above set out, and defendant appealed to this court and assigned 36 grounds of appeal. Such grounds as are argued are presented under 8 points. All the questions raised and argued are considered and decided in this opinion.

It is urged by defendant appellant that the attempt to recover in this case was based upon P. L. 1922. p. 628, and that it does not lie. That act is entitled:

"An act providing for a right of action to recover damages in cases where injury to person or property, means of support or otherwise, is caused by any intoxicated person, or by reason of the intoxication of any person, or by reason of the sale or procuring of intoxicating liquor in violation of law; providing for the survival of such right of action in the event of the death of any person who may have suffered or inflicted such injury, and fixing the method of distribution of damages that are recovered where death results from intoxication or from the sale or procuring of intoxicating liquor in violation of law."

A right of action in any court of competent jurisdiction is given in the first section of the act to any one injured in person, property, or means of support; and it is further provided that in case of the death of any person, who may have suffered or may have inflicted any such injury, both actual and exemplary damages may be awarded. See Boniewsky v. Polish Home of Lodi, supra. And the right of action given by the act shall survive to or against the executor, administrator "of" personal representatives of the decedent. The executor or administrator is the personal representative of a decedent. The word "of" is a misnomer; it should have been "or," but even that is superfluous.

This is like the second section of the act entitled "An act to provide for the recovery of damages in cases where the death of a person is caused by wrongful act, neglect, or default" (P. L 1848, p. 151, § 2; 2 Comp. Stat p. 1908, § 8), which provides that every such person (action) shall be brought by and in the names of the personal representatives of such deceased person. This, of course, is the executor or administrator of the decedent.

This particular action, under P. L. 1922, p. 628, was brought in the name of the plaintiff as administrator ad prosequendum of the decedent, and counted for damages in the complaint for the next of kin and heirs at law of the decedent. It therefore became necessary for the plaintiff to amend, as the act of 1922 provides only for suit in the name of a general administrator where death ensues, and in no case by an administrator ad prosequendum; and this she did on the trial. She obtained leave to amend so as to sue as general administratrix, having been appointed such before the action was brought Then the suit properly proceeded in her name as general administratrix.

Afterwards a further amendment was applied for and granted, so that the case should be one by the plaintiff, as general administratrix, and by the widow and next of kin of the decedent. Counsel for defendant said that he did not waive any legal right of his client's with respect to the status that the plaintiff" was in as a result of the amendment. His position was that, if the widow and next of kin had not a cause of action, he would not admit that they had. In the colloquy between the court and counsel over this question of amendment, the judge said:

"Then you want an amendment so as to make the parties as administratrix and the widow and next of kin, and I suppose I should appoint the mother the guardian ad litem of the two children to prosecute the suit, so whatever judgment is obtained here will cover all the causes of action."

And it appears that that was the order.

Now, the language of the act plainly states that if the death of any person results from intoxication, or from the sale or procuring of intoxicating liquor in violation of law, either directly or indirectly, such action shall be brought by and in the name of the personal representative of such decedent, and the amount recovered in every such action shall be for the exclusive benefit of the widow, or of the surviving husband, or next of kin of any such decedent and shall be distributed to such widow, surviving husband, or next of kin in the proportion provided by law in relation to the distribution of personal property left by any person dying intestate. The subsequent provisions relate to other persons entitled to damages; that is, the damages recovered by and in the name of the representative of the estate for the use of such persons.

There is not a line nor a word in the act to the effect that the widow, or next of kin, who may be entitled to damages under it, by reason of the death of the person injured, shall have any cause of action in their own names, although, of course, the action given is for their benefit This is the same provision that is found in the death act of 1848; and such actions have been uniformly so brought ever since. Therefore, it follows that the first amendment applied for was proper, and that the second applied for was improper.

These amendments should have been returned with the postea. It may be that if the defendant had objected to the amendment from administratrix ad prosequendum to general administratrix, it might have prevailed, as it was substituting a new cause for action. See Fitzhenry v. Consolidated Traction Co., 63 N. J. Law, 142, 42 A. 416. See, also, Lower v. Segal, 59 N. J. Law, 66, 34 A. 945; Id. 60 N. J. Law, 99, 36 A. 777. The same rule applies in chancery. See Fodor v. Kunie, 92 N. J. Eq. 301, 112 A. 598. But, whether so or not, the defendant appears to have consented to the amendment. In this case the court said to counsel for plaintiff:

"Now, you want to amend your complaint?" Counsel for plaintiff:

"To read instead of ad prosequendum * * * general administratrix. That is right."

Thereafter defendant moved for a nonsuit on grounds not involving the question of this amendment. Moreover, in the brief submitted for the defendant, counsel said that:

"In the course of the trial plaintiffs counsel amended the complaint so as to make her sue as general administratrix, it appearing by the act of the Legislature in question that the action could be brought only by the general administratrix."

Again, plaintiff's counsel said in the brief:

"In the course of the trial she amended her complaint so as to sue as general administratrix."

And again:

"Such action should have been brought in the name of the personal representative of the deceased."

However, even though no consent to this amendment is to be spelled out of the case, nevertheless, under the doctrine of Giardini v. McAdoo, 93 N. J. Law, 138, 107 A. 437, the amendment is now and here allowable. In that case the administratrix sued under our death act, when she should have sued as widow under the Pennsylvania death act; and she was permitted to amend after trial and in aid of the verdict, which she received. This court holding, at page 145 (107 A. 440) that the question was:

"Are we precluded from permitting a proper amendment at this time, and must we reverse the judgment resulting from a trial upon the merits,...