Franzen v. Equitable Life Assur. Soc. Of United States.

• Decision Date: 10 August 1943
• Docket Number: No. 406.,406.
• Citation: 33 A.2d 599,130 N.J.L. 457
• Parties: FRANZEN v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES.
• Court: New Jersey Supreme Court

130 N.J.L. 457

33 A.2d 599

FRANZEN

v.EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES.

No. 406.

Supreme Court of New Jersey.

Aug. 10, 1943.

COPYRIGHT MATERIAL OMITTED.

Action by Reba Nora Franzen against the Equitable Life Assurance Society of the United States to recover on a group insurance policy. The action was tries to the court sitting without a jury, and, from a judgment for defendant, plaintiff appeals.

Reversed and new trial awarded.

Appeal from District Court of Camden.

January term, 1943, before BODINE, HEHER, and PERSKIE, JJ.

Abraham J. Slurzberg, of Jersey City, for appellant.

Collins & Corbin, of Jersey City (Edward A. Markley and James B. Emory, both of Jersey City, of counsel), for respondent.

HEHER, Justice.

The question for decision is whether plaintiff was the wife of George Albert Franzen at the time of his death on August 6, 1939. If so, she is entitled to the proceeds of a group insurance policy issued by defendant to the deceased's employer, E. I. duPont de Nemours & Co., Inc. The employment commenced prior to the time of the asserted marriage; and Franzen designated his father as the beneficiary of the policy. The designee died on January 22, 1939, but the insured failed to appoint a substitute beneficiary. The policy provided that, in the event of nonappointment of a beneficiary, the insured's widow, or his mother if he died unmarried, would be entitled to the stipulated benefits.

The issue was resolved in the negative by the District Court Judge, sitting without a jury. There was no ceremonial marriage; and the ruling was that the evidence did not establish plaintiff's contention of a commonlaw marriage in New Jersey on April 17, 1937, two days before the insured's departure for the State of Louisiana to labor there in the service of his employer, but rather that it suggested merely ‘an agreement to be married as soon as possible,’ and that, though they lived together in Louisiana, and ‘from that point on, and until his death on August 6, 1939,’ the insured's ‘references to the plaintiff, with his fellow workmen, and their families, incontrovertibly by the testimony, and admittedly by the defendant, were as his wife,’ and ‘there is no doubt that the course of conduct between the plaintiff and decedent followed in Louisiana was that of husband and wife,’ there was no contract of marriage in compliance with the requirements of the Louisiana Code.

Error is assigned upon the admission into evidence, on respondent's motion and over appellant's objection, of an ex parte affidavit made by a member of the bar of the State of Louisiana purporting to reproduce verbatim certain provisions of the revised Civil Code of that State, adopted in 1870, pertaining to the constitution of the contract of marriage, and passages from opinions rendered in two Louisiana cases not ‘reported in the Southern reports', i.e. ‘Succession of Lorenzo Alexander and Julia Sharkelford, or Washington, his wife, 4 Orleans App. 272, at page 275, and Powers v. Executors of Charmbury (Supreme Court) 35 La.Ann. 630, at page 632.’

The specifications are that the affidavit was insufficient in content, in that it did not reveal ‘whether the law stated therein was in effect at the time the appellant and decedent cohabited in the State of Louisiana, and if so, how it was applicable to the facts before the court;’ that ‘this manner of proof denied the appellant her fundamental right to cross-examine the affiant as to his special qualfications as an expert witness and as to the application of the authorities to the facts in the case at issue,’ and that, at all events, it was incumbent upon defendant to introduce also expert opinion as to the law of Louisiana relating to the contract of marriage ‘as shown by exposition, interpretation and adjudication.’

The general rule at common law is that a foreign law is essentially a matter of ‘fact’ determinable by the jury. Unlike the lex fori, it is not the subject of judicial notice. Until recently, this principle has prevailed in this State. Title Guarantee & Trust Co. v. Trenton Potteries Co., 56 N.J. Eq. 441, 38 A. 422; Fithian v. Pennsylvania Railroad Co., 91 N.J.L. 275, 103 A. 193; Coral Gables, Inc., v. Kretschmer, 116 N.J.L. 580, 184 A. 825. But the wisdom of committing this function to untutored lay minds has long been questioned; and sentiment eventually crystallized among legal scholars in favor of the view that there is no essential difference in function between the ascertainment of foreign law and the law of the forum, and therefore foreign law should be proved to the judge. In 1936, the National Conference of Commissioners on Uniform Laws formulated what is now labelled the ‘Uniform Judicial Notice of Foreign Law Act.’ The essence of this draft was incorporated into our statute law by Ch. 81 of the Laws of 1941, as amended by Ch. 104 of the Laws of 1942. Thereby, our courts are directed to take judicial cognizance of ‘the common or statute law’ of any state, territory or other jurisdiction of the United States, if such is pleaded. It is provided that the ‘determination of such laws shall be made by the court and not by the jury, and shall be reviewable;’ that the court ‘may inform itself of such laws in such manner as it may deem proper,’ and ‘may call upon counsel to aid it in obtaining such information;’ and that, if the ‘common or statute law’ of another state, territory or jurisdiction of this country be pleaded in an action in a court of this State, ‘any party to such action may introduce any admissible evidence of such law.’ Pamph.L. 1941, p. 193; Pamph.L. 1942, p. 365; N.J.S.A. 2:98-28 et seq.

Apart from the principle of uniformity, the design of this enactment was to achieve that certainty in the ascertainment and application of foreign law which is attainable only when the determination is made by one versed in the philosophy and principles of law and in exegesis after the searching and exhaustive inquiry afforded by judicial notice of the pertinent statutes and decisions of the foreign state sovereignty. This statute was preceded by acts providing that ‘statute books and printed laws' issued by authority of another state of the United States or a foreign country ‘shall be received as evidence of the public laws thereof;’ and that ‘The reports of judicial decisions' of such states and foreign countries ‘may be judicially noticed by the courts of this state as evidence of the common law of such states or countries, and the judicial construction of the statutes or laws thereof and the usual printed books of such reports shall be plenary evidence of such decisions.’ Comp.Stat. 1910, p. 2228, sec. 24, 25 and 26; R.S. 1937, 2:98-17, 2:98-18, N.J.S.A.

[4] [5] By force of the Act of 1941, supra, the question of the terms of the foreign law would seem to be one of law rather than fact. It is provided that the judge's determination shall be reviewable; and it is elementary at common law that the resolution of an issue of fact is not revisable on error if the finding have a tangible basis in the evidence. Yet there is authority for the view that foreign law is in essence a question of fact, even though determinable by the judge and reviewable on error. Beale's Conflict of Laws, sec. 621.1. In the sense that foreign law is provable by evidence, according to the usual rules of evidence except as modified by the judicial notice statutes and the nature of the inquiry, it is a matter of fact, but the ultimate inquiry is one of law, i.e. the determination of what the law is, just as is the case with the lex fori. The judge is not confined therein to the evidence of foreign law adduced by the parties.

The courts are enjoined so to interpret the Act of 1941, supra, ‘as to effectuate its general purpose to make uniform the law of those states which enact it.’ N.J.S.A. 2:98-33. But this is not in itself a complete norm of construction. It is a remedial language is to be given a liberal interpretation to suppress the mischief and advance the remedy.

Thus, the introduction of the affidavit did not violate appellant's substantial rights. It did not embody the affiant's opinion of the law of Louisiana respecting the question at issue; it merely presented a transcript of the pertinent provisions of the Louisiana Civil Code, and made reference to two interpretative decisions, all of which were available to the court by the application of the statutory principle of judicial notice.

But it is maintained that, since the trial judge found that ‘the course of conduct between plaintiff and decedent followed in Louisiana was that of husband and wife,’ marriage in conformity with the laws of that State was established. This point is not well made.

These are the pertinent provisions of the Civil Code of Louisiana, as revised in 1870: ‘The law considers marriage in no other view than as a civil contract.’ Art. 86. ‘The laws prescribe: 1. The manner of contracting and celebrating marriages; 2. The legal effects and consequences of marriage; 3. The manner in which marriages may be dissolved.’ Art. 87. ‘Such marriages only are recognized by law as are contracted and solemnized according to the rules which it prescribes.’ Art. 88. ‘As the law considers marriage in no other view than that of a civil contract, it sanctions all those marriages where the parties, at the time of making them, were: 1. Willing to contract; 2. Able to contract; 3. Did contract pursuant to the forms and solemnities prescribed by law.’ Art. 90. Ch. 3, Art. 99 et seq., provides for the issuance of licenses and designates those authorized to celebrate marriages. ‘No minister of the gospel, or other person, shall celebrate any marriage in this State, unless he shall have obtained previously a special license to him directed, issued by the person appointed by law to grant licenses in the parish wherein the marriage is to be celebrated, authorizing him to celebrate such marriage.’ Art. 104. ‘The marriage must be...