Marshall v. Geo. M. Brewster & Son, Inc.

• Citation: 172 A.2d 458,68 N.J.Super. 399
• Decision Date: 14 July 1961
• Docket Number: No. A--316,A--316
• Parties: Thomas O. MARSHALL, Jr., Administrator of the Estate of Ned Marshall, Deceased, Plaintiff-Respondent, v. GEO. M. BREWSTER & SON, INC., a corporation of N.J., et al., Defendants- Appellants.
• Court: New Jersey Superior Court – Appellate Division

Page 399

68 N.J.Super. 399

172 A.2d 458

Thomas O. MARSHALL, Jr., Administrator of the Estate of Ned Marshall, Deceased, Plaintiff-Respondent, v. GEO. M. BREWSTER & SON, INC., a corporation of N.J., et al Defendants- Appellants.

No. A--316.

Superior Court of New Jersey, Appellate Division.

Argued May 29, 1961.

Decided July 14, 1961.

James A. Major, Hackensack, for defendants-appellants (James I. Toscano, Hackensack, attorney; James A. Major, II, Hackensack, on the brief).

Stanley W. Greenfield, Elizabeth, for plaintiff-respondent.

Before Judges FOLEY, LEWIS and HERBERT.

HERBERT, J.S.C. (temporarily assigned).

This is an appeal from an order of the Law Division which denied a motion for summary judgment made on behalf of the defendants. Being interlocutory, it is here by permission granted under R.R. 2:2--3.

On October 2, 1958 Ned Marshall was killed at a railroad crossing in Pittsburgh, Pennsylvania, when the motor vehicle in which he was riding was struck by a train. The case arises out of that accident. The defendants, a group of contractors engaged in a joint venture, are alleged to have assumed responsibility for conditions at the crossing, and the administrator of Marshall's estate demands damages from them for the death.

The complaint was filed February 5, 1960, more than a year but less than two years after the accident. Was it filed in time? That is the only question to be considered on this appeal. Had suit been brought on the same date in Pennsylvania it would have been too late. The statute of that state creating a cause of action for wrongful death is 12 P.S. §§ 1601--1604. Section 1603 reads as follows:

'The declaration shall state who are the parties entitled in such action; the action shall be brought within one year after the death, and not thereafter.'

The comparable New Jersey statute fixes a two-year limit for the commencement of actions based on fatalities caused by wrongs committed here. N.J.S. 2A:31--3, N.J.S.A. So, if the accident which killed Ned Marshall had happened in this State the suit would be timely.

The general rule applicable to a suit in one state for a death caused in another is stated in 2 Beale on Conflict of Laws, sec. 397--1, page 1316 (1935):

'A limit of time for bringing suit contained in a statute giving damages for death is binding everywhere, and no state will allow suit after the time has elapsed. There is some difference of opinion where the limit in the statute of the state of wrong is a longer one than that in the state of forum.'

It is argued for the plaintiff-respondent that this rule should not be applied to the present case. Rosenzweig v. Heller, 302 Pa. 279, 153 A. 346 (Sup.Ct.1931), is cited as authority. In that case it was held that the one-year period of the Pennsylvania statute barred an action based on a death in a New Jersey accident even though suit had been brought in the Pennsylvania courts within the two-year period prescribed by our statutes.

This result was reached by declaring that the one-year period in which a plaintiff can sue under the Pennsylvania statute is a matter of general procedure, and hence applicable in the Pennsylvania courts to actions brought there on death claims arising elsewhere. It must be conceded that the Supreme Court of Pennsylvania used in its opinion broad language describing the one-year limit (12 P.S. § 1603) as a statute of limitation rather than one conditioning the right of action. If sec. 1603 is merely a statute of limitations--so the argument goes--then a claim on a Pennsylvania fatality brought into the courts of another state has no condition of time attached to it, because a true statute of limitations is merely procedural and applies only in the courts of the state adopting it. To complete this reasoning the plaintiff-respondent contends that there is no provision of New Jersey law which bars the action, the Pennsylvania time limit being inapplicable. In fact the complaint alleges that suit has been 'instituted within two years of the date of death of Ned Marshall,' an allegation appropriate to a death claim arising out of a New Jersey accident. At least two jurisdictions have followed this line of reasoning and have allowed suits based upon Pennsylvania deaths to be brought after the one-year period specified in the Pennsylvania act. Keys v. Pullman Co., 87 F.Supp. 763 (D.Tex.1949); Hughes v. Hinson's Garage, Inc., 9 A.D.2d 1014, 194 N.Y.S.2d 324 (App.Div.1959); Panzironi v. Heath, 197 Misc. 847, 95 N.Y.S.2d 660 (Sup.Ct.1950).

Yet upon careful examination the authorities cited and relied upon in Rosenzweig v. Heller indicate that the court was considering only the application of the local statute to cut down the period for enforcement in Pennsylvania of a statutory cause of action given longer life by the state which created it. This can be demonstrated by quotations from the opinion (302 Pa. 279, 281, 153 A. 346, 347):

'In his work on Conflict of Laws, § 86, p. 171, Professor Goodrich says the authorities are divided on the question which cannot be regarded as settled. 'Suit on a cause of action created by a statute thus limiting the right must, then, be brought within the time fixed by the law creating the claim. Suppose, however, that the lex fori creates a cause of action under similar circumstances, but provides a shorter limitation period. It would seem that the plaintiff could not recover if his action was not within the limitation period set by the lex fori also. The right is not gone until it is lost under the law creating it. But the statute of the forum shows the local policy as to the time in which such actions are to be brought. It could well be interpreted as limiting locally created rights, and as a procedural bar to all actions of this type, no matter where arising.' Wharton's Conflict of Laws, vol. 2 (3d Ed.) p. 1264, inclines to the view that the limitation of actions is governed by the law of the forum: 'Assuming, however, that the time allowed by the foreign statute creating the cause of action has not expired, the plaintiff comes to the bar of the forum with a concededly existing cause of action; but it is not apparent why an action thereon does not, as in the case of an existing cause of action at common law, fall within the operation of the general principle that the limitation of actions is governed by the law of the forum. It may be that the same principle which characterizes the limitation prescribed by the foreign statute as a condition affecting the right of action itself, and not merely the remedy, will, when applied to the corresponding statute of the forum creating a similar cause of action, characterize the limitation prescribed by that statute as a matter of right rather than of remedy, and thus confine its operation to causes of action arising at the forum. This is by no means clear, however, since such a limitation appears to affect both the right and the remedy; and if it does affect the remedy,...