Public Service Electric Co. v. Post

• Citation: 257 F. 933
• Decision Date: 02 May 1919
• Docket Number: 2423.
• Parties: PUBLIC SERVICE ELECTRIC CO. v. POST.
• Court: U.S. Court of Appeals — Third Circuit

257 F. 933

PUBLIC SERVICE ELECTRIC CO. v. POST.

No. 2423.

United States Court of Appeals, Third Circuit.

May 2, 1919

Leonard J. Tynan, of Newark, N.J., for plaintiff in error.

Irving W. Teeple, of Newark, N.J., for defendant in error.

Before WOOLLEY, Circuit Judge, and THOMPSON and MORRIS, District judges.

MORRIS District Judge.

Joseph Post, a resident of New York, met his death in New Jersey through the alleged wrongful act of Public Service Electric Company, hereinafter referred to as the company, a corporation of the latter state. The decedent left to survive him his widow and three minor children as his next of kin. His widow, Catherine Post, also a resident of New York presented to the surrogate of the county of their residence a petition setting forth, among other things, the death of her husband in New Jersey; that he was not at the time of his death seized or possessed of any real or personal property that 'a right of action exists, granted to the administrator of the decedent by special provision of law, * * * and that it is impracticable to give a bond'-- and praying for limited letters of administration. Such letters were granted to her, and she as such administratrix subsequently instituted suit in the District Court of the United States for the District of New Jersey against the company to recover damages for her husband's death. The suit resulted in a judgment for the plaintiff.

The case is brought here by the defendant on a writ of error; the company alleging that the court below erred in holding that the administratrix of the decedent, appointed in a state other than New Jersey, 'had a good standing in court as plaintiff to sue for damages for the death of the decedent on an alleged cause of action under the New Jersey Death Act based upon wrongful death in New Jersey.'

As there is no right of action at common law for death caused by wrongful act or neglect, the cause of action for the death of Post springs solely from the statute of New Jersey, the state in which the injury resulting in death occurred. Spokane Inland R.R. v. Whitley, 237 U.S. 487, 494, 495, 35 Sup.Ct. 655, 59 L.Ed. 1060, L.R.A. 1915F, 736. And since the action is based entirely upon statute, and the statute designates the person who may sue, only the person so designated may bring such action. Fithian v. St. Louis &amp S.F. Ry. Co. (C.C.) 188 F. 842; Fitzhenry v. Consolidated Traction Co., 63 N.J.Law, 142, 42 A. 416. We must therefore look to the statute of New Jersey to determine by whom this action must be brought. We find that at the time of the injury and death of the decedent the Death Act of New Jersey provided:

'Every such (action) shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person,' etc. (2 C.S.of N.J. 1908.)

After the grant of the letters of administration to the plaintiff, but before this suit was brought, the following supplement to the above-quoted statute went into effect, viz.:

'Every action, proceeding or claim brought, instituted or made under and by virtue of the remedy given by the act to which this is a supplement shall be brought, instituted or made in the name of an administrator ad prosequendum of the decedent whose death gives rise to the claim under the act to which this act is a supplement; * * * the amount recovered in every such action shall be for the exclusive benefit of the widow, surviving husband, and next of kin. * * * ' (Laws of N.J. 1917, ch. 180.)

Who was the proper person under this state of the statutory law to bring this suit-- a general administrator, as required by the statute in force at the time the injury and death occurred or an administrator ad prosequendum, as provided by the statute in effect at the time the suit was instituted? If the latter statute merely changed the mode of procedure-- the method of enforcing the right-- and did not affect the right itself, it applied to causes of action which accrued before its enactment as well as to those accruing thereafter. Wood v. Westborough, 140 Mass. 403, 5 N.E. 613; Lewis' Sutherland, Stat. Const. Sec. 674. An examination of the two statutes discloses that the supplemental act in no wise affected the liability of the defendant and that it changed neither the persons for whose benefit recovery might be had in this suit nor their respective interests in such recovery. The amount recovered does not go into the personal estate of the deceased, to be applied to the payment of his debts, but is for the exclusive benefit of the widow and next of kin. The administrator upon the record, whoever he is, is therefore merely a formal par...