Seitter v. W. Jersey & S. R. Co.
| Decision Date | 21 February 1910 |
| Parties | SEITTER v. WEST JERSEY & S. R. CO. |
| Court | New Jersey Supreme Court |
Action by Frances E. Seitter, administratrix, against the West Jersey & Seashore Railroad Company. Demurrer to declaration sustained.
Argued November term, 1909, before SWAYZE, TRENCHARD, and PARKER, JJ.
Herbert C. Bartlett, for plaintiff.
Bourgeois & Sooy submitted a brief.
The only point which we find it necessary to consider is that the declaration fails to aver that the action was commenced within 24 calendar months after the death of the decedent. P. L. 1907, p. 386. Such a defect is fatal. Lapsley v. Public Service Corporation, 75 N. J. Law, 266, 68 Atl. 1113. In fact, the declaration does not in so many words make the necessary averment. It sets forth, under a videlicet, the date on which the defendant was in the possession, management, and control of the railroad on which the decedent was killed, and avers that he was struck and killed "on the day and year aforesaid." This date is within two years. The fact that the date is laid under a videlicet does not prevent the defendant from traversing it, if it is material. 1 Chitty, Pleading, 611. But we see nothing in the statute which makes the precise time material. All that is material is that the action shall be begun within 24 calendar months after the death. It is obvious that it would result in an immaterial issue if the defendant should deny that the death occurred on June 27, 1909, for proof that it occurred on January 1, 1909, would justify the action. We think, therefore, that the plaintiff has failed to aver in such a way that the defendant can traverse the material fact as to the time. It should be averred in so many words that the action was commenced within 24 calendar months after the death. This defect exists in both counts, and the defendant is entitled to judgment.
It is probable that the plaintiff will wish to amend her declaration, and it may be well to call attention to the fact that the first count avers that the defendant "suffered and permitted the trains to be propelled across the highway without proper signals and warning." This does not amount to an averment that the defendant itself controlled or ran the trains. Obviously, mere sufferance or permission, if the negligence was that of some other person, would not render the defendant liable. The case in that respect resembles State v. Fox, 70 N. J. Law, 353, 57 Atl. 270.
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