Roberts v. Union Carbide Corporation

Citation415 F.2d 474
Decision Date21 August 1969
Docket NumberNo. 17602.,17602.
PartiesMary Evelyn ROBERTS, Administratrix ad Prosequendum of Everett Melvin Roberts, Appellant, v. UNION CARBIDE CORPORATION, a Corporation.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

John W. Devine, Pellettieri & Rabstein, Trenton, N. J., for appellant.

Carl Kisselman, Kisselman, Devine, Deighan & Montano, Camden, N. J. (Michael Patrick King, Camden, N. J., on the brief), for appellee.

Before HASTIE, Chief Judge, and McLAUGHLIN and SEITZ, Circuit Judges.

OPINION OF THE COURT

PER CURIAM:

This is an appeal by the plaintiff in a wrongful death action brought under New Jersey Statutes, 2A:31-1, N.J.S.A. It is the responsibility of the federal courts solely because of the diversity of citizenship of the parties. The essential facts are that the plaintiff's decedent inhaled dangerous fumes while in the employ of All American Engineering Company. During his lifetime the decedent obtained a judgment of $210,000 against Union Carbide as damages for this mishap, and this judgment was satisfied after an unsuccessful appeal. Some five years later the decedent died, allegedly as a result of the defendant's above mentioned negligence. Plaintiff brought suit and summary judgment was entered for the defendant.

While New Jersey's highest court has not ruled on the question raised here, at least two New Jersey cases support the proposition that plaintiff's cause of action is barred and extinguished by the decedent's having obtained a recovery during his lifetime. Lawlor v. Cloverleaf Memorial Park, Inc., Law Div. 1968, 101 N.J.Super. 134, 243 A.2d 293; Libera v. Whittaker, Clark and Daniels, Inc., Law Div. 1952, 20 N.J.Super. 292, 89 A.2d 734. Compare Lawlor v. Cloverleaf Memorial Park, Inc., App.Div.1969, 106 N.J.Super. 374, 256 A.2d 46. We observe that this view is consistent with that of nearly all states having similar statutes. See Annotation, 39 A.L.R. 579 (1925). Moreover, the record does not sustain the contention that the present action involves elements of recoverable damage not covered by the decedent's earlier suit.

The judgment will be affirmed.

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6 cases
  • Alfone v. Sarno
    • United States
    • United States State Supreme Court (New Jersey)
    • July 20, 1981
    ...barred a wrongful death action where the decedent had obtained a judgment for his injuries during his lifetime. Roberts v. Union Carbide Corp., 415 F.2d 474 (3d Cir. 1969). 4 The holdings in these cases were in harmony with the majority of courts construing cognate wrongful death statutes. ......
  • Services, Inc v. Gaudet 8212 1019
    • United States
    • United States Supreme Court
    • January 21, 1974
    ...of (pecuniary losses).' 7. See n. 1, supra. 8. G. Gilmore & C. Black, The Law of Admiralty 308 (1957). 9. E.g., Roberts v. Union Carbide Corp., 415 F.2d 474 (CA3 1969) (New Jersey law); Schlavick v. Manhattan Brewing Co., 103 F.Supp. 744 (ND Ill.1952) (Indiana law). The cases are reviewed i......
  • Alfone v. Sarno
    • United States
    • New Jersey Superior Court – Appellate Division
    • May 4, 1979
    ...the Third Circuit a year earlier resolved it adversely to a subsequent claim on behalf of the surviving beneficiaries in Roberts v. Union Carbide, 415 F.2d 474 (1969). As noted above, the basic problem is to determine whether the death action is derivative from and dependent upon the existe......
  • Perkins v. Variety Children's Hospital
    • United States
    • Court of Appeal of Florida (US)
    • January 12, 1982
    ...we cited authority for the principle that an existing judgment will bar a subsequent wrongful death action. See Roberts v. Union Carbide Corporation, 415 F.2d 474 (3d Cir. 1969); see also Schlavick v. Manhattan Brewing Co., 103 F.Supp. 744 We are told, however, that the courts of this state......
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