Complainants v. Pub. Serv. Corp..

• Decision Date: 30 April 1943
• Docket Number: No. 221.,221.
• Citation: 31 A.2d 809
• Parties: Linda PETERS et al., Complainants, v. PUBLIC SERVICE CORPORATION et al., Defendants; Emma Mimnaugh, Adm'x ad Pros., Appellant.
• Court: New Jersey Supreme Court

31 A.2d 809

Linda PETERS et al., Complainants,

v.PUBLIC SERVICE CORPORATION et al., Defendants; Emma Mimnaugh, Adm'x ad Pros., Appellant.

No. 221.

Court of Errors and Appeals of New Jersey.

April 30, 1943.

Appeal from Court of Chancery.

John B. Baratta, of Atlantic City, for appellant.

Henry H. Fryling and Henry J. Sorenson, both of Newark, for respondents.

PER CURIAM.

This is an appeal from an order of the Court of Chancery advised by V. C. Sooy, whose opinion is reported at 132 N.J.Eq. 500, 29 A.2d 189. The appeal is by one of the four complainants. Emma Mimnaugh, administratrix ad prosequendum of the estate of George Mimnaugh, deceased. She appeals from that part of the order which dissolved the ad interim restraint against the prosecution by the defendants-respondents of a motion to strike her complaint in the action at law. We are of the opinion that the portion of the order appealed from was properly entered for the reasons therefor given in the opinion of the Vice Chancellor, and should be affirmed.

For affirmance: The CHIEF JUSTICE, Justices PARKER, CASE, BODINE, DONGES, HEHER, and PORTER, and Judges WELLS, RAFFERTY, and THOMPSON-10.

For reversal: Justice PERSKIE-1.

PERSKIE, Justice (dissenting).

The gravamen of the holding by the learned Vice Chancellor is concisely embraced in that portion of his deliverance where he said (at page 507 of 132 N.J.Eq., at page 194 of 29 A.2d): ‘The Death Act is a statute of creation and the commencement of the action within the time limit is an indispensable condition of the liability and of the action which it permits. If the action is not instituted within the time limit the defendants are exempt from liability. There being no saving clause in our statute, this Court is without power to ingraft any exception to interfere with limit of the time within which suit must be brought.’

In other words, the learned Vice Chancellor held that our Death Act is a limitation both upon the liability of the wrongdoer and upon the remedy of the wronged. That this was so prior to the Revision of 1937 of our public laws is beyond question. What, however, is the effect of that revision? It is my thought that it wrought a change, namely, the limitation is no longer upon the liability but is simply a limitation upon the remedy.

Why do I think so? From the day when first our legislature provided for an action for death by a wrongful act, and in all amendments thereof up and until the Revision of 1937, the time limitation was worded as follows: ‘* * * provided that every such action shall be commenced within twelve calendar months [or ‘twenty four calendar months, or two years'] after the death of such deceased persons [‘And not thereafter’].' Rev.1877, p. 294, § 2.

Under the 1937 revision the limitation reads as follows (N.J.S.A. 2:47-3): ‘Every action brought under the provisions of this chapter [47. Death by wrongful act] shall be commenced within two years after the death of the decedent, and not thereafter.’

It is at once obvious that the revision deleted the word ‘provided’ and thus reconciled and harmonized the wording thereof with the wording in the provision for limitations of actions not involving death (N.J.S.A. 2:24-2) save that in the former (revision) the wording is that the action shall be commenced within the stated time limitation ‘after the death of the decedent’ while in the latter the wording is that the action shall be commenced within the same time limitation ‘next after the cause of any such action shall have accrued.’ The difference is clearly one of choice of words and...