Coulter v. N.J. Pulverizing Co.

• Decision Date: 21 December 1932
• Parties: COULTER v. NEW JERSEY PULVERIZING CO. CLARK v. SAME.
• Court: New Jersey Supreme Court

163 A. 661

COULTER

v. NEW JERSEY PULVERIZING CO.

CLARK

v. SAME.

Supreme Court of New Jersey.

Dec. 21, 1932.

Separate actions by Harry Coulter, administrator ad prosequendum of Leroy Coulter, deceased, and by Lillian M. Clark, executrix of the estate of Ashby F. Clark, deceased, against the New Jersey Pulverizing Company. On plaintiffs' motions to strike defendant's answers and on defendant's counter motions to strike the complaints.

Plaintiffs' motions to strike answers denied and defendant's counter motions to strike complaints granted.

Samuel Greenstone, of Newark, for plaintiffs.

Howard Ewart, of Toms River, for defendant.

BODINE, J.

The present actions were brought under the Death Act. The defendant answered that the actions were barred by the statute of limitations. The plaintiffs moved to strike the answers and the defendant moved to strike the complaints. The defendant's motion must be granted and the plaintiffs' denied.

The question here presented is whether the representatives may sue under the Death Act when their decedents' right of action for the same negligence complained of in the action under the Death Act was barred by limitations at the time of the decedents' deaths.

That the two actions are separate and distinct is well settled in this state. Cooper v. Shore Elec. Co., 63 N. J. Law, 558, 44 A. 633; Soden v. Trenton & Mercer County Traction Co., 101 N. J. Law, 393, 127 A. 558.

The Death Act, so far as pertinent, is as follows (italics mine): "That 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. * * *" 2 Comp. St. 1910, p. 1907, § 7. "Every action * * * shall be brought * * * in the name of an administrator ad prosequendum of the decedent whose death gives rise to the claim under the act * * * except where such deceased dies testate, and his or her will is probated, the executor or executors therein named, who qualify, shall bring, institute or make such action, proceeding or claim. * * * And provided, further, that every action shall be commenced or sued within two years after the death of such deceased person and not after. * * *" P. L. 1917, p. 531 (Comp. St. Supp. § 55—10).

It is, of course, arguable that, since the actions are separate, the only bar to the action under the Death Act is the bar contained in the act itself. But the statute only gives an action if the decedent had one. In the present cases, the decedents' actions were lost by lapse of time. Since...