Knabe v. Hudson Bus Transp. Co.

• Decision Date: 27 September 1933
• Docket Number: No. 21.,21.
• Citation: 168 A. 418
• Parties: KNABE v. HUDSON BUS TRANSP. CO. et al.
• Court: New Jersey Supreme Court

168 A. 418

KNABE

v. HUDSON BUS TRANSP. CO. et al.

No. 21.

Court of Errors and Appeals of New Jersey.

Sept. 27, 1933.

Syllabus by the Court.

In eases of personal injury due to wrongful act covered by the two years' statute of limitation (3 Comp. St. 1910, p. 3164, § 3), if the injured party brings no suit within the legal period of limitation and dies after the expiration of such period without having brought suit, no right of action vests in the personal representative under the Death Act.

Appeal from Supreme Court.

Action by Karoline Knabe, executrix of the estate of Paul Knabe, deceased, against the Hudson Bus Transportation Company and others. From an adverse judgment (162 A. 247, 10 N. J. Misc. 1075), plaintiff appeals.

Affirmed.

Nathan Baker, of Hoboken, for appellant.

Ralph P. Messano, of Jersey City, for respondents.

PARKER, Justice.

The fundamental point before us is the same as that decided by the Supreme Court in Coulter, Administrator, v. N. J. Pulverizing Co., 163 A. 661, 11 N. J. Misc. 5. Appellant is executrix of the will of her husband, and sues for damages under the statute for a wrongful act causing his death. Judge Brown, sitting as commissioner, ordered the complaint struck out because deceased had not himself brought suit within two years; and final judgment was entered for defendants.

The complaint averred facts indicating an injury to appellant's testator on January 12, 1927, through negligence of defendants; that: he died July 3, 1930, over three years later; t hat he left certain next of kin; and that the present action (begun June 29, 1932) had been commenced within the statutory two years from his death. Defendants moved to strike out the complaint as not disclosing a cause of action, "in that the action is barred by the statute of limitations in such case made and provided for."

No further indication appears as to what statute is intended; but no objection waa made to the notice on that ground, nor was the point taken that a statute of limitations must be pleaded and cannot at law be invoked by demurrer, or motion tantamount to demurrer. Callan v. Bodine, 81 N. J. Law, 240, 79 A. 1057; Supreme Court rule 58; Bentley v. Colgate, 163 A. 98, 10 N. J. Misc. 1222, 1227; Gibson v. Gillespie (Del. Super.) 143 A. 544; Johnson v. Wells-Lamson Quarry Co., 103 Vt. 475, 156 A. 681, 77 A. L. R. 492; 37 C. J. 1204. But what was argued below, and is argued here, and what was decided in Coulter v. N. J. Pulverizing Co., is this: Deceased having been injured more than two years before his death, and having brought no action within two years after the injury, that being the limitation laid down in section 3 of the net (3 Comp. St. 1910, p. 3164, § 3), and assuming that his death was due to the injury, did a right of action under the Death Act vest in his executrix on his death?

We concur in the reasoning contained in the Supreme Court opinion in Coulter v. N. J. Pulverizing Company, supra, and think it supported by what was said in the two Supreme Court cases of McKeering v. Pennsylvania R. Co., 65 N. J. Law, 57, 46 A. 715, and Altzheimer v. Central R. Co., 75 N. J. Law, 424, 67 A. 1051. In the McKeering Case Justice Van Syckel said, at page 61 of 65 N. J. Law, 46 A. 715, 716: "These cases, we think, fully support the proposition that where the right of action exists in the injured party at the time of his death, where he has done no act to bar a suit by himself if he had survived, there the right of action under the statute is a vested right in those who are the beneficiaries." The defense in that case was a settlement...