Rathgeber v. Sommerhalder

• Decision Date: 12 April 1934
• Docket Number: No. 78.,78.
• Citation: 171 A. 835
• Parties: RATHGEBER et al. v. SOMMERHALDER.
• Court: New Jersey Supreme Court

171 A. 835

RATHGEBER et al.

v. SOMMERHALDER.

No. 78.

Court of Errors and Appeals of New Jersey.

April 12, 1934.

Appeal from Circuit Court, Bergen County.

Action by Marie Rathgeber and another against Edward Sommerhalder, after whose death Olga Sommerhalder, administratrix of his estate, was substituted as defendant. From a judgment for substituted defendant, plaintiffs appeal.

Affirmed.

Hyman Busch, of Newark, for appellants.

McCarter & English, of Newark, for respondent.

WELLS, Judge.

This is an appeal from a judgment entered in the Bergen county circuit court, in favor of the defendant, after the trial court had stricken out plaintiffs' complaint.

The suit was brought by the plaintiffs to recover for injuries sustained by them in an accident which occurred in the state of New York, while the plaintiffs were passengers in the automobile owned and operated by Edward Sommerhalder.

The complaint alleges that the plaintiffs were riding in the automobile by invitation of Edward Sommerhalder and that the accident and resultant injuries were occasioned by his negligence.

The suit was originally brought against Edward Sommerhalder, who filed an answer. Before the case came on for trial, Edward Sommerhalder died, and, on motion of the plaintiffs, his administratrix, Olga Sommerhalder, the respondent here, was substituted as a party defendant. At the trial the substituted defendant moved for. judgment on the pleadings, and a rule for judgment was entered striking out the complaint and ordering judgment in favor of the defendant and against the plaintiffs, on the ground that the cause of action did not survive the death of the original defendant.

The plaintiffs-appellants state as the sole ground of appeal that the trial court erred in entering a judgment of nonsuit.

The trial court held that, inasmuch as the accident occurred in New York, the law of New York governed, and, there being no averment in the complaint that there was any statute in the state of New York which would entitle the plaintiffs to recover, the presumption was that, in the absence of such statute, the common-law rule prevailed, namely, that this action did not survive against the present defendant. This was admitted in open court by the attorney of plaintiffs to be the New York law.

Appellants claim that the question as to the revival of this action against the administratrix is governed by the laws of the state of New Jersey.

The question before us is whether the lex loci or lex fori is to be applied.

The precise point has never been decided in this state, but Friedman v. Greenberg, 110 N. J. Law, 462, 166 A. 119,120, 87 A. L. R. 849, is identical with the present case in all material respects save one.

In that case the action was not begun until after the death of the tort-feasor, and Mr. Justice Trenchard, who delivered the learned opinion for this court, said: "Now it has been repeatedly decided that where, as here, the tort occurs in New York, even though the action is brought in a state which has a survival statute, the law of New York governs, and the action does not survive and cannot be maintained in a state having a survival s...