Cibulla v. Pa.-reading Seashore Lines.

• Decision Date: 06 December 1946
• Citation: 50 A.2d 461
• Parties: CIBULLA v. PENNSYLVANIA-READING SEASHORE LINES.
• Court: New Jersey Court of Common Pleas

50 A.2d 461

CIBULLA

v.PENNSYLVANIA-READING SEASHORE LINES.

Court of Common Pleas of New Jersey, Atlantic County.

Dec. 6, 1946.

Action under the Death Act by Anna I. Cibulla, as executrix of the estate of John Cibulla, deceased, suing for hereself as widow of deceased, and for his mother, against the Pennsylvania-Reading Seashore Lines. On motion by defendant to strike so much of the complaint as referred to the deceased's mother on ground that she was not a proper party plaintiff.

Motion to strike granted.

Abraham Rosenberg, of Atlantic City, for plaintiff.

Lloyd, Horn & Perskie, of Atlantic City, for defendant.

HANEMAN, Judge.

This is a motion directed at the complaint in an action commenced under R.S. 2:47-1 et seq., N.J.S.A., commonly known as the ‘Death Act’. The complaint is filed by Anna I. Cibulla, executrix of the Estate of John Cibulla, deceased, suing for herself as widow of the said John Cibulla and for his mother, Caroline Cibulla, both of whom allegedly suffered pecuniary injury as the result of his death.

Motion is now made by the defendant to strike so much of paragraph 6 of the first count as refers to Caroline Cibulla, mother of the deceased, on the ground that she is not a proper party plaintiff.

It is defendant's contention that since there is a surviving widow but no children, the foregoing statute precludes the mother from being joined as a party plaintiff and that the right to sue vests solely in the surviving widow.

The pertinent statutes involved are as hereinafter set forth:

R.S. 2:47-2, N.J.S.A. (Death Act) provides as follows: ‘Every action, proceeding or claim brought, instituted or made under this chapter shall be brought, instituted or made in the name of an administrator ad prosequendum of the decedent, for whose death damages are sought to be recovered, except where decedent dies testate and his will is probated, in which event the executor named in the will and qualifying, or the administrator with the will annexed, as the case may be, shall bring the action, proceeding or claim.’

R.S. 2:47-4, N.J.S.A. (Death Act) provides as follows: ‘The amount recovered in proceedings under this chapter shall be for the exclusive benefit of the widow, surviving husband, and next of kin of the decedent, and shall be distributed to them in the proportions provided by law for the distribution of the personal property of intestates, except that where decedent leaves a surviving widow or husband, but no children or descendant of any children and no parents, the widow or surviving husband shall be entitled to the whole of the amount so recovered, which amount shall be paid to her or him.’

R.S. 2:47-5, N.J.S.A. (Death Act) provides as follows: ‘In every action brought under the provisions of this chapter the jury may give such damages as they shall deem fair and just with reference to the pecuniary injuries resulting from such death to the widow, surviving husband, and next of kin of the deceased.’

R.S. 3:5-3, N.J.S.A. (Statute of Distribution) provides as follows: ‘If there be no children, nor any legal representative of them, the wholc surplusage shall be allotted to the husband or widow, as the case may be, of the intestate.’

The purpose of the original Death Act, in the language of Chief Justice Beasley in the case of Haggerty v. Central Railroad Company, 31 N.J.L. 349, was as follows: ‘* * * It is entirely and in the highest sense remedial in its nature. Its object was to abolish the harsh and technical rule of the common law-actio personalis moritur cum persona. The rule had nothing but prescriptive authority to support it; it was a defect in the law, and this statute was designed to remove the defect. It is, therefore, entitled to receive the liberal construction which appertains to remedial statutes * * *’.

Originally under the common law, as above stated, there was no right of action for a wrongful death. By virtue of the Death Act such right of action vested in designated persons or classes, if they survived the deceased. In the case sub judice it is uncontroverted that one or more of such persons did so survive. The question therefore arises, whether the right to sue vested exclusively in the widow.

It is apparent, that under the Statute of Distribution, as applied to the facts in the present case, the widow would be entitled exclusively to the entire recovery. The single doubt cast upon this conclusion is that portion of R.S. 2:47-4, N.J.S.A., which reads as follows: ‘* * * except that where decedent leaves a surviving widow or husband, but no children or descendant of any children and no parents, the widow or surviving husband shall be entitled to the whole of the amount so recovered * * *’ This is rather an anomalous provision, in view of the present method of distribution set forth in R.S. 3:5-1 et seq., N.J.S.A.

It is to be noted that no provision is made in this proviso for the distribution of any portion of the damages to such parent in the event of the survival of a widow and parent.

In order to attempt to ascertain the intent of the Legislature, it becomes necessary to examine the history of the act involved and the decisions interpreting the same.

The first enactment of a Death Act in 1848 was patterned after its English counterpart known as Lord Campbell's Act. This Act provided, insofar as is here applicable, as follows:

‘1. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.

‘2. Every such action shall be brought by and in the names of the personal representatives of such deceased person; and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death to the wife and next (of) kin of such deceased person; provided, that every such action shall be commenced within twelve calendar months after the death of such deceased person. (P.L.1848, p. 151).’

At the time the Death Act was passed, the Statute of Distribution provided as follows; ‘II. In case there be no children, nor any legal representative of them, then one moiety of the said estate shall be allotted to the widow of the said intestate, and the residue of the said estate shall be distributed equally to every of the next of kindred of the intestate, who are in equal degree, and those who represent them; provided, that no representation shall be admitted among collaterals after brothers' and sisters' children. (Rev. 1877, p. 784).’

It is quite apparent therefore, that at the time of the passage of the original Death Act, in the event that no children, nor any legal representative of them survived the deceased, the personal estate of the deceased was divided between the widow and the next of kin.

In 1897, P.L.1897, c. 58, p. 134, the Legislature amended the Death Act and inserted the provision that ‘where such deceased person has left, or shall leave him surviving a widow, but no children or the descendants of any children and no parents, the widow shall be entitled to the whole of the damages * * *.’ For the first time, therefore, the Legislature saw fit to increase the interest of the widow in the event that the deceased was survived by neither children, descendants of children, nor by a parent, at the expense and to the exclusion of more remote next of kin.

For present purposes, both the Death Act and the Statute of Distribution remained unchanged until the year 1908. By P.L.1908, c. 316, page 643, the Statute of Distribution was amended to read as follows: ‘[Allotment of all to widow.] II. In case there be no children, nor any legal representative of them, then the whole of the said estate shall be allotted to the widow of the said intestate.’

Coincident with this amendment of the Statute of Distribution, the Death Act was amended by P.L.1908, page 721, to read as follows: ‘* * * provided, that where such deceased person has left or shall leave him surviving a widow, but no children or descendants of any children, the widow shall be entitled to the whole of the damages which she shall sustain * * *.’

Quite patently, in 1908 the Legislature having seen fit to change the Statute of Distribution, conformed the Death Act to such new provisions. It is noteworthy that the 1908 amendment of the Death Act left intact the provision referring to distribution of damages in accordance with the Statute of Distribution, but changed only that portion of the Death Act which was appended as a proviso. From 1908 to 1913, there appeared no confusion between the Statute of Distribution and the Death Act, nor was there during this period any confusion or conflict between...