Peters v. Pub. Serv. Corp.

• Decision Date: 30 November 1942
• Parties: PETERS et al. v. PUBLIC SERVICE CORPORATION et al.
• Court: New Jersey Court of Chancery

29 A.2d 189

132 N.J.Eq. 500

PETERS et al.

v. PUBLIC SERVICE CORPORATION et al.

Court of Chancery of New Jersey.

Nov. 30, 1942.

[Copyrighted material omitted.]

Syllabus by the Court.

1. The provision of the "Death Act" that every action brought under it shall be commenced within two years after death occurs, operates as a limit of the liability of the wrongdoer as well as of the remedy, and in the absence of a savings clause in the statute itself, delay beyond the period fixed thereby may not be explained or excused.

2. The "Death Act" is a statute of creation and the commencement of the action within the time limit is an indispensable condition of the liability and of the action which it permits. If the action is not commenced within the time limit, the liability of the defendant is at an end and the courts are powerless to ingraft any exception extending the time limit fixed by the statute.

3. There is a presumption against a legislative intent, by a revision of general laws, to effect a change in substance, and that presumption is not overcome, ex necessitate, by a mere change of phraseology, or the addition or omission of words in the revision; the intention to alter the essence must be expressed in language admitting of no reasonable doubt of the purpose.

4. When defendants' wrongful conduct can be said to have caused complainants to subject their claim to the bar of the statute of limitations, a court of equity will not permit defendants to hold the advantage thus obtained.

5. On application for ad interim restraint, where the rights of the parties are not clear, the court will apply the doctrine of balancing of conveniences, to the end that the status quo may be maintained so that the parties are in substantially the same plight when the final decree is entered as they were when the litigation began.

Bill by Linda Peters and others against Public Service Corporation of New Jersey, a corporation of the State of New Jersey, and others, to restrain defendants from proceeding with a motion to dismiss and to strike in an action wherein Emma Mimnaugh as administratrix ad prosequendum of the estate of George Mimnaugh, deceased, was plaintiff, and Public Service Interstate Transportation Company, a corporation of the State of New Jersey, was defendant, and from setting up the bar of the limitation statute by way of answer in an action wherein Linda Peters and Charles Peters were plaintiffs and Public Service Interstate Transportation Company, a corporation of the State of New Jersey, was defendant, and an action wherein Reba Sharpless was plaintiff and the Public Service Interstate Transportation Company, a corporation of the State of New Jersey, was defendant, until further order of the court, to the end that a final hearing may be had and a decree entered thereon. On return of an order to show cause why ad interim restraint should not be granted pending final decision on the merits of the bill.

Decree in accordance with opinion.

John B. Baratta, of Atlantic City, for complainants.

Henry H. Fryling, of Newark (Henry J. Sorenson, of Newark, of counsel), for defendants.

SOOY, Vice Chancellor.

This matter comes before me on the return of an order to show cause why ad interim restraint should not be granted pending final hearing on the merits of the bill of complaint filed by complainants against defendants.

The bill of complaint sets forth that on January 16, 1939, a collision occurred between a motor bus operated and driven by Public Service Interstate Transportation Company, hereinafter called Interstate, and an automobile driven and operated by one Mimnaugh, as a result of which Mimnaugh was killed and Reba Sharpless and Linda Peters, passengers for hire in the bus, were injured. Separate suits were instituted by Peters and Sharpless and by Mimnaugh's administrator ad prosequendum against Public Service Coordinated Transport, hereinafter called Coordinated, based on allegations of negligence in the operation of the bus aforesaid.

The suits of Peters and Sharpless were instituted January 30, 1939, and that of Mimnaugh in February of 1939, all in the New Jersey Supreme Court. The Peters and Sharpless suits were prosecuted to the point where a demand for a bill of particulars was made by the defendants in each case, after which there were no further proceedings, plaintiffs never having complied with the demand.

The Mimnaugh case was brought to issue and listed for trial at the October 1939 term of the Supreme Court of Atlantic County, and at subsequent terms, and was finally listed for trial at the May 1942 term of said court, at which time the bill alleges the attorney for complainants therein was advised that suit should have been instituted against Interstate and not Coordinated, the former having been the owner and operator of the bus with which the Mimnaugh car collided and in which said Peters and Sharpless were passengers for hire.

After discovery by complainants of the misnomer aforesaid, plaintiffs' attorney applied before a Justice of the Supreme Court for leave to amend the summons and complaint in each one of the cases, so as to substitute Interstate as defendant in the place and stead of Coordinated; the application was denied, whereupon complainants' attorney, in August of 1942, instituted three new suits for the complainants against Interstate; thereafter, in September of 1942, counsel for Interstate served notice of a motion to quash and dismiss the summons in the Mimnaugh suit and to strike out the first count of the complaint on the ground that the suit was not commenced within two years after the death of Mimnaugh.

Counsel for defendants filed answers in the new Peters and Sharpless suits setting up that the cause of action was barred by the statute of limitations.

Complainants seek at this time a restraining order against the defendants enjoining them from proceeding with the motion to dismiss and strike in the Mimnaugh case and from setting up the bar of the statute by way of answer in the passenger cases, until the further order of the Court, to the end that a final hearing may be had and a decree entered thereon.

Complainants allege that defendants' wrongful conduct has resulted in subjecting their suits at law to the bar of the statute in such case made and provided. Before discussing the situation as disclosed by the proofs submitted on the return of the order to show cause we must determine whether in the death case, irrespective of the factual situation as disclosed by the proofs, this Court may grant relief at this or any other time.

It is argued that the time prescribed by our Death Act within which an action must be commenced is of the essence of the right to maintain the suit and not a mere statute of limitations, and that a statute creating a liability where none exists in the common law must be strictly complied with and that no explanation as to why the action was not brought within the time limit will be permitted unless the statute itself contained a savings clause, which our Death Act does not contain.

The general rule is stated in 16 American Jurisprudence, sec. 168, p. 114: "Matters Affecting Period of Limitation.—Since the period fixed by a statute giving a right of action for wrongful death within which such right may be exercised is usually considered, not as an ordinary statute of limitations, but as a condition to the right to maintain the action, the lapse of such period is, as a general rule, held to be an absolute bar, not recoverable by any of the ordinary exceptions or answers to a statute of limitations. In such case, provisions of other statutes suspending the operation of statutes of limitation under designated circumstances are generally held inapplicable. In the absence of a savings clause in the death statute itself, no delay beyond such period will be allowed to be explained or excused, even though no rights of innocent parties have attached during the delay."

The courts of this State have passed on the question, the leading case, as I view it, being Lapsley, Adm'r, v. Public Service Corp., 75 N.J.L. 266, 68 A. 1113, in which case Chief Justice Gummere held:

"The provision in the 'Death act' that every action brought under its authority shall be commenced within twelve calendar months after the death occurs operates as a limitation of the liability of the wrongdoer as well as of the remedy.

"When a statute gives a remedy under particular circumstances, the party seeking such remedy must, in his pleading, allege all the facts necessary to bring him within the statute."

See also, to the same effect, Eldridge v. Philadelphia & Reading R. Co., 83 N.J.L. 463, 85 A. 179; Seitter v. West Jersey & S. R. Co., 79 N.J.L. 277, 75 A. 435, and Bretthaucr, Adm'r, v. Jacobson, 79 N.J.L. 223, 75 A. 560.

In 67 A.L.R. p. 1070 will be found an annotation on the rule of law under discussion as viewed by the author thereof from the great number of cases cited therein: "In a majority of the jurisdictions it is held that provisions in statutes authorizing actions for wrongful death, which limit the time within which the actions shall be brought, are not properly statutes of limitations as that term is generally understood, but they are qualifications and conditions restricting the rights granted by the statutes, and must be strictly complied with; and that no explanation as to why actions were not brought within the time limit will prevent the operation of such a provision of the statutes unless the statutes themselves contain a saving clause." In this annotation the New Jersey cases hereinbefore referred to are listed, in support of the general rule.

On page 1074 of 67 A.L.R. of the annotation aforesaid, the author points out that there are decisions which hold that the provisions of a death statute as to the time for bringing action are nothing more than a statute of limitations, citing cases from New York, Oklahoma and Kentucky, and in...