Meehan v. Central Railroad Company of New Jersey

• Citation: 181 F. Supp. 594
• Parties: Thomas F. MEEHAN, as Administrator of the Estate of Andrew T. Gill, Deceased, Plaintiff, v. CENTRAL RAILROAD COMPANY OF NEW JERSEY, Defendant.
• Decision Date: 12 January 1960
• Court: U.S. District Court — Southern District of New York

181 F. Supp. 594

Thomas F. MEEHAN, as Administrator of the Estate of Andrew T. Gill, Deceased, Plaintiff, v. CENTRAL RAILROAD COMPANY OF NEW JERSEY, Defendant.

United States District Court S. D. New York.

January 12, 1960.

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Thomas F. Meehan, New York City, for plaintiff.

Vincent E. McGowan, New York City, for defendant, Joseph P. Allen, New York City, of counsel.

LEVET, District Judge.

This action was brought by the plaintiff, a New York resident, appointed by the Surrogate's Court of New York County, State of New York, as the general administrator of the estate of the decedent, Andrew T. Gill, who at the time of his death was a resident of the State of New Jersey, to recover damages for the wrongful death of said decedent pursuant to N.J.S.A. 2A:31-1; and for conscious pain and suffering pursuant to N.J.S.A. 2A:15-3 claimed to have been sustained by the decedent prior to death as a result of the negligence of the defendant in the operation of one of its trains in the State of New Jersey. The defendant is a New Jersey corporation. The plaintiff also sought to recover punitive damages on both causes of action.

The decedent, an attorney, died from drowning on September 15, 1958, when the train in which decedent was a passenger commuting from his home in Rumson, New Jersey to New York passed through the opening of the Newark Bay Drawbridge at Bayonne, New Jersey, into the waters below. Decedent, 39 years of age at the time, was survived by his widow, Ruth A. Gill, 36 years old at that time, and five children, then of the ages of 2 to 8.

The action was instituted in this court by virtue of the alleged diversity of citizenship of the parties. A motion by the plaintiff for interlocutory summary judgment on the issue of liability was denied by Judge Frederick v. P. Bryan of this court on June 22, 1959. The plaintiff moved to obtain a preference on the court calendar on the ground that the health and financial need of decedent's widow required quick action. Chief Judge Sylvester J. Ryan granted this motion on June 26, 1959 to the extent of placing the suit at the head of the Ready Day Trial Calendar for the November 1959 Term. The case was tried on November 4 through 13, 1959, and the verdict rendered on November 12, 1959.

The cause of action for punitive damages for the wrongful death of the decedent was dismissed by this court. The New Jersey Wrongful Death Statute, N.J.S.A. 2A:31-1 to 2A:31-6, limits the recovery to "such damages as they the jury shall deem fair and just with reference to the pecuniary injuries resulting from such death." N.J.S.A. 2A:31-5.

It is the general rule in this country that exemplary or punitive damages for death are not recoverable under statutes modeled after Lord Campbell's Act, or under other forms of statute which do not expressly or by clear implication confer a right to such damages. See Annotation, 94 A.L.R. 384, 386; 16 Am. Jur., Death, § 185, p. 124.

The New Jersey courts have held that a plaintiff is entitled to recover nothing but the pecuniary loss suffered by the next of kin. See May v. West Jersey & S. R. Co., 62 N.J.L. 67, 42 A. 165; Odlivak v. Elliott, D.C.D.Del.1949, 82 F. Supp. 607.

It was stated by the Supreme Court of New Jersey in Turon v. J. & L. Const. Co., 1952, 8 N.J. 543, 86 A.2d 192, that "the evident policy of the statute is the recovery of damages for the pecuniary injury sustained by the designated beneficiaries. The act is essentially remedial rather than penal." 86 A.2d at page 198.

In accordance with the compensatory nature of the New Jersey Wrongful Death Statute, the punitive damage action on the wrongful death was dismissed.

By stipulation entered into between the parties during the course of the trial, the defendant conceded liability for the accident which caused the decedent's death. (SM 204-06)

The defendant reserved the right to move at the appropriate time for the dismissal of the cause of action based on pain and suffering. The defendant also reserved the right to move to dismiss all causes of action on the ground of lack of jurisdiction of the court and on the further ground that the plaintiff had no capacity to bring this action since the cause of action for wrongful death is specifically given to the administrator ad prosequendum under N.J.S.A. 2A:31-2.

With respect to the punitive damages, if any, to which the plaintiff would be entitled on the cause of action alleging pain and suffering, it was stipulated between the attorneys for the parties (defendant, however, reserving its right to move to dismiss this phase of the action) that 10% would be added to whatever sum, if any, the jury awarded on the cause of action for pain and suffering.

After trial the jury awarded to the plaintiff the sum of $315,000 on the cause of action for wrongful death and $10,000 on the cause of action for conscious pain and suffering.

After the verdict the defendant addressed a number of motions to the verdict, as follows:

With respect to the first cause of action for wrongful death, the defendant moved to set aside the verdict and for a new trial on the grounds of excessiveness of the verdict; the misconduct of plaintiff's attorney during the trial; and alleged inflammatory summation.

With respect to the cause of action for pain and suffering, the defendant moved to set aside the verdict in favor of the plaintiff and for judgment notwithstanding the verdict in favor of the defendant on the ground that there was no evidence to support a verdict for pain and suffering. The defendant moved in the alternative to set aside the verdict in favor of the plaintiff and for a new trial.

With respect to the punitive damages which were governed by the stipulation aforesaid, defendant moved for a directed verdict on the ground that there was no basis for the award of any punitive damages.

With respect to the question of jurisdiction, the defendant moved to dismiss the complaint on the grounds that the court lacked jurisdiction of the parties in that there was no diversity of citizenship and that the plaintiff as general administrator did not have the capacity to sue under the New Jersey Wrongful Death Statute which gives the right of action to an administrator ad prosequendum. N.J.S.A. 2A:31-2.

After the verdict the plaintiff moved for the court to add interest at the rate of 6% on the verdict of $315,000 from September 15, 1958 to November 12, 1959.

The jurisdiction question is considered first.

I. Motion as to Jurisdiction.

The jurisdiction of this court is based upon diversity of citizenship, 28 U.S.C.A. § 1332(a), in that the plaintiff, appointed general administrator of the estate of the decedent by the Surrogate's Court of New York County, is a resident of the State of New York, while the defendant is admittedly a New Jersey corporation. The decedent was a resident of New Jersey and his widow and children, the beneficiaries of the cause of action for wrongful death, are residents and citizens of the State of New Jersey.

The contentions of the defendant that this court lacks jurisdiction are as follows:

1. The appointment of the plaintiff as general administrator by the Surrogate's Court of New York County was based upon misrepresentations of fact and failure to state material facts constituting fraud upon the Surrogate's Court to a degree sufficient to cause the letters of administration issued thereunder to be void and to divest this court of jurisdiction by reason of Section 1359 of Title 28, U.S.C.A.

2. Since the New Jersey Wrongful Death Act (N.J.S.A. 2A:31-2) provides that the action is to be brought in the name of an administrator ad prosequendum, who is regarded by the New Jersey courts as a nominal party and a mere trustee for the bringing of the action, the plaintiff is not the real party in interest and his citizenship is not controlling in determining the requisite diversity of citizenship.

3. The plaintiff lacks capacity to sue in that the New Jersey statute (N.J.S.A. 2A:31-2) requires the action to be brought by an administrator ad prosequendum and the plaintiff is a general administrator appointed in New York.

We consider these contentions in order.

First: Defendant maintains that the appointment of the plaintiff as administrator was fraudulent and collusive and jurisdiction is not present by virtue of Section 1359 of Title 28, U.S.C.A. That section reads:

"A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court."

However, the federal courts in interpreting the section have held that it does not permit an inquiry into the motives and purposes which actuate the appointment of the administrator. Corabi v. Auto Racing, Inc., 3 Cir., 1959, 264 F.2d 784; McCoy v. Blakely, 8 Cir., 1954, 217 F.2d 227; Jaffe v. Philadelphia & Western R. Co., 3 Cir., 1950, 180 F.2d 1010.

Moreover, the courts have long expressed a reluctance to permit a collateral attack on such a probate decree. See Mecom v. Fitzsimmons Drilling Co., 1931, 284 U.S. 183, 189, 52 S.Ct. 84, 87, 76 L.Ed. 233, wherein the court stated: "His appointment was regular and in accordance with the statutes; and the decree of the probate court may not be collaterally attacked in the present proceeding." See also McGehee v. McCarley, 5 Cir., 1899, 91 F. 462; American Car & Foundry Co. v. Anderson, 8 Cir., 1914, 211 F. 301.

Nevertheless, that reluctance may be overcome when, as here, the attack alleges fraud in relation to the jurisdictional facts on the basis of which the Surrogate's Court issued the letters of administration. The defendant alleges: "But for these misrepresentations the Surrogate's Court of New York County would not have had jurisdiction. In fact since the Surrogate's decree was obtained on the basis of these misrepresentations the letters issued to the...