Lapsley v. Pub. Serv. Corp. of N.J.

• Decision Date: 02 March 1908
• Citation: 75 N.J.L. 266,68 A. 1113
• Parties: LAPSLEY v. PUBLIC SERVICE CORPORATION OF NEW JERSEY.
• Court: New Jersey Supreme Court

68 A. 1113

75 N.J.L. 266

LAPSLEY

v. PUBLIC SERVICE CORPORATION OF NEW JERSEY.

Supreme Court of New Jersey.

March 2, 1908.

Action by Catharine Lapsley, as administratrix of the estate of James Lapsley, deceased, against the Public Service Corporation of New Jersey. On demurrer to declaration. Sustained.

Argued June term, 1907, before GUMMERE, C. J., and REED, J.

Patrick J. Dolan, for plaintiff. Hobart Tuttle, for defendant

GUMMERE, C. J. This action is brought by the plaintiff to recover the pecuniary loss sustained by the widow and next of kin of her decedent, James Lapsley, by his death, which is averred in the declaration to have been caused by the wrongful act and neglect of the defendant company.

The sole ground of demurrer relied upon by the defendant is that the declaration fails to aver that the present action was commenced within 12 calendar months after the death of the plaintiff's decedent, as required by the second section of the act of March 3, 1848 (P. L. p. 151), which provides for the recovery of damages in cases where the death of a person is caused by wrongful act, neglect, or default (Gen. St. p. 1188. §§ 10-12). The statute referred to, after setting forth what shall create liability, and who shall bring the action, contains a proviso which declares that every action brought under its authority shall be commenced within 12 calendar months after the death occurs. In the case of County, Adm'x, v. Pacific, etc., Co., 67 N. J. Law, 54, 50 Atl. 906, Mr. Justice Garrison, discussing this proviso, says: "This special limitation is so closely related to the statutory remedy given as to be a part of it. It is created solely with the object of qualifying the right of action. The remedy is given subject to the limitation." To the same effect is the following declaration of Waite, C. J., in the case of the Steamer Harrisburg, 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358: "The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all." This is the generally accepted view of the effect of the limitation, as will appear by a reference to Tiffany on Death by Wrongful Act, § 121, and cases cited.

Considering the proviso as a limitation of liability, it follows that the declaration, in order to disclose a cause of action, must set out such facts as will negative the existence of such limitation. When a statute gives...