Rosenzweig v. Heller

• Decision Date: 05 January 1931
• Docket Number: 257
• Citation: 302 Pa. 279,153 A. 346
• Parties: Rosenzweig, Admrx., v. Heller, Appellant
• Court: Pennsylvania Supreme Court

153 A. 346

302 Pa. 279

Rosenzweig, Admrx., v. Heller, Appellant

No. 257

Supreme Court of Pennsylvania

January 5, 1931

Argued November 28, 1930

Appeal, No. 257, Jan. T., 1930, by defendant, from order of C.P. No. 2, Phila. Co., Sept. T., 1928, No. 11819, making absolute rule to amend statement, in case of Blanche P Rosenzweig, administratrix ad prosequendum of Simon Rosenzweig, deceased, v. Max Heller. Reversed.

Trespass for negligence.

Rule to amend statement. Before STERN, P.J., and LEWIS, J.

Rule absolute. Defendant appealed.

Error assigned, inter alia, was order, quoting record.

The judgment is reversed and is here entered for defendant.

J. W McWilliams, with him G. A. Troutman and Charles S. Wesley, for appellant. -- The court below erred in permitting plaintiff to amend: Knight v. R.R., 108 Pa. 250; Centofanti v. P.R.R., 244 Pa. 255; Roberts v. Baking Co., 283 Pa. 573; Platt v. Wilmont, 193 U.S. 602; LaBar v. R.R., 218 Pa. 261.

Robert M. Bernstein, with him Arthur Harrison, for appellee. -- The amendment was properly allowed: The Harrisburg, 119 U.S. 199.

The limitation prescribed by a statute creating a cause of action will govern when it prescribes a longer as well as when it prescribes a shorter period than that fixed by the statute of the forum: Theroux v. R.R., 64 F. 84; Brunswick v. Bank, 99 F. 635; Usher v. R.R., 126 Pa. 206.

Before FRAZER, C.J., WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SCHAFFER:

This action to recover damages for the death of her husband is being prosecuted by plaintiff, as administratrix ad prosequendum, so appointed by the proper authority of the State of New Jersey, where her deceased husband received the injuries which resulted fatally. The New Jersey statute provides that whenever the death of a person shall be caused by a wrongful act, the proceeding to recover damages shall be brought in the name of an administrator ad prosequendum of the decedent and that the action shall be commenced within two years after the death. As originally started, the action was brought in the plaintiff's name as widow on October 24, 1928. The decedent died August 3, 1928. The case went to trial on October 7, 1929, and following the production of the New Jersey statute by the defendant, the trial judge withdrew a juror. On October 24, 1929, plaintiff took a rule to amend the pleadings by substituting her name as administratrix ad prosequendum, to which defendant objected that so doing would introduce a new cause of action after the expiration of the time limit, one year, fixed by our Act of April 26, 1855, P.L. 309, for bringing suit. The court allowed the amendment and the question before us is whether our act or that of New Jersey controls. In the one event the action is unmaintainable and in the other it may proceed.

In his work on Conflict of Laws, section 86, page 171, Professor Goodrich says the authorities are divided on the question which cannot be regarded as settled. "Suit on a cause of action created by a statute thus limiting the right must, then, be brought within the time fixed by the law creating the claim. Suppose, however, that the lex fori creates a cause of action under similar circumstances, but provides a shorter limitation period. It would seem that the plaintiff could not recover if his action was not within the limitation period set by the lex fori also. The right is not gone until it is lost under the law creating it. But the statute of the forum shows the local policy as to the time in which such actions are to be brought. It could well be interpreted as limiting locally created rights, and as a procedural bar to all actions of this type, no matter where arising." Wharton's Conflict of Laws, volume 2, 3d edition, page 1264, inclines to the view that the limitation of actions is governed by the law of the forum: "Assuming, however, that the time allowed by the foreign statute creating the cause of action has not expired, the plaintiff comes to the bar of the forum with a concededly existing cause of action; but it is not apparent why an action thereon does not, as in the case of an existing cause of action at common law, fall within the operation of the general principle that the limitation of actions is governed by the law of the forum. It may be that the same principle which characterizes the limitation prescribed by the foreign statute as a condition affecting the right of action itself, and not merely the remedy, will, when applied to the corresponding statute of the forum creating a similar cause of action, characterize the limitation prescribed by that statute as a matter of right rather than of remedy, and thus confine its operation to causes of action arising at the forum. This is by no means clear, however, since such a limitation appears to affect both the right and the remedy; and if it does affect the remedy, it is applicable to foreign causes of action not barred by the statute of their creation. But, even assuming that the special limitation prescribed at the forum affects the right only, and not the remedy, and is therefore not applicable to foreign causes of action, there may be a general limitation at the forum, which, upon the general principle that limitation is governed by the law of the forum, is applicable to foreign, as well as domestic, causes of action." And this view is taken by the editor in 46 L.R.A. (N.S.) 687, who digests the authorities in a note. In its restatement on Conflict of Laws, No. 4, section 433, The American Law Institute sets forth that, "A limit of time for bringing suit contained in the death statute of the place of wrong is binding in every state, and no state will allow a recovery on the statute after the time has elapsed." In the comment of the reporter it is said that the limit of time is regarded as a condition of the right but that "The limit of time in the death statute of the forum may be interpreted as a statute of limitations for actions for death; and in that case the suit must be brought within the time limited in that statute, as well as within the time limited in the statute of the place of injury."

Appellant's counsel argues that our Act of 1855 is a general statute of limitations, applicable to all suits brought in this jurisdiction and therefore the amendment should not have been allowed, that the action must stand as originally brought and is in that form unmaintainable, under the New Jersey law. He affirms we have so ruled and points us to our opinions in Prettyman v. Irwin, 273 Pa. 522, and LaBar v New York, Susquehanna & Western R.R. Co., 218 Pa. 261. In the first mentioned case, an action was brought within a year for damages due to death negligently caused. The summons was returned nihil. No further writ was issued until over two years later, when an alias was issued and served. An affidavit of defense was filed alleging the action was barred because of the delay. The court below assumed this could be decided as a preliminary question of law and entered judgment for defendant. Reversing, we determined that the statute when set up in the affidavit of defense could not be taken advantage of by having the suit dismissed merely because begun after the period fixed. In the opinion, Mr. Justice SIMPSON used this language (page 525): "True, the cases above referred to were actions of assumpsit and not of tort; but, so far as affects the question now under consideration, the statutes are exactly alike. The Act of March 27, 1713, 1 Smith's Laws 76, provides that,...