Wilson v. Dairymen's League Coop. Ass'n, Inc.

• Decision Date: 15 October 1928
• Docket Number: No. 57.,57.
• Parties: WILSON v. DAIRYMEN'S LEAGUE COOP. ASS'N, Inc.
• Court: New Jersey Supreme Court

143 A. 454

WILSON

v. DAIRYMEN'S LEAGUE COOP. ASS'N, Inc.

No. 57.

Court of Errors and Appeals of New Jersey.

Oct. 15, 1928.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Margaret A. Wilson, administratrix ad prosequendum of the estate of Harold E. Wilson, deceased, against the Dairymen's League Co-operative Association, Inc. Judgment of nonsuit, and plaintiff appeals. Reversed, and venire de novo ordered.

Mark Townsend, Jr., and George B. Sleigh, both of Jersey City, for appellant.

Kalisch & Kalisch, of Newark, for respondent.

KATZENBACH, J. This is an appeal from a judgment of the Supreme Court. The judgment was one of nonsuit, directed by the trial judge upon the opening of the case. The action was instituted under the Death Act (2 Comp. St. 1910, pp. 1904-1911, §§ 1-9) to recover damages for the alleged wrongful killing of Harold E. Wilson. On December 5, 1922, in the early morning of a foggy day, Wilson was riding a bicycle on Orange street in the city of Newark. The Dairymen's League Co-operative Association, Inc. (hereinafter referred to as the Dairymen's League), the defendant, was the owner of a truck engaged at the time in the delivery of milk. The driver of the truck had stopped it on the southerly side of Orange street, and had taken, as was claimed, the lantern from the truck to aid him to see in the delivery of a can of milk. The plaintiff propelled his bicycle into the unlighted truck headon and received serious injuries, from which he died on January 30, 1923. He left a widow and four children, aged, respectively, five, three, and two years, and two months. By advice of counsel the widow, Margaret A. Wilson, was appointed administratrix of her husband's estate.

On July 25, 1923, less than six months from the death of Harold E. Wilson, an action under the Death Act was instituted against the Dairymen's League by Mrs. Wilson as general administratrix. This was a mistake, as the action should have been instituted by an administratrix or administrator ad prosequendum. The mistake was not discovered until a change of plaintiff's counsel was made on August 14, 1925. The case was reached for trial in June, 1926. In the meantime Mrs. Wilson had been appointed administratrix ad prosequendum. Upon the opening of the trial counsel for the plaintiff moved to amend the complaint by making Mrs. Wilson, administratrix ad prosequendum, the plaintiff in the action. This amendment was allowed over the objection of the defendant. An exception was entered to the ruling of the trial court. The case proceeded. On other grounds arising during the progress of the trial a mistrial was declared by the trial judge.

The case came up for retrial on February 11, 1927. At the opening of the trial counsel for the plaintiff made the same motion for the amendment of the complaint. Objection to the amendment was made on the ground that at the time of the appointment of Mrs. Wilson as administratrix ad prosequendum the limitation as to the time in which a suit could be brought under the Death Act had elapsed and the right of action was barred. The trial judge granted the motion to amend. He then granted a motion of the defendant to nonsuit the plaintiff the ground being, as intimated, that the right of action had been barred by the two-year limitation of the Death Act at the time the plaintiff was appointed administratrix ad prosequendum. The plaintiff took an exception to the ruling. This ruling of the trial Judge is now before us upon the appeal from the judgment of nonsuit taken by the plaintiff below.

Attention should perhaps be called preliminarily to the fact that this action was instituted less than six months after it arose, so that the respondent was fully apprised of the claim that it was responsible for the death of the plaintiff's intestate. Although commenced by Mrs. Wilson as general administratrix, no motion was made to strike out the complaint. No objection to the form in which the action was brought was raised in the answer. If either had been done, counsel for the plaintiff would have been apprised of the mistake, and the mistake corrected. It is, of course, not incumbent upon one party to a suit to inform the other of its mistakes; but, if these mistakes are permitted to pass without action by the other, it is a circumstance to be taken into account if the mistakes are subsequently relied upon as a technicality to defeat the trial and final determination of what appears upon its face to be a meritorious cause of action.

In the early days of our jurisprudence, many actions were brought to a summary conclusion by reason of mistakes as to form. These decisions resulted frequently in miscarriages of justice. The only meritorious result of dismissing suitors on technicalities was to create a bar adept in the science of pleading. For many years the trend has properly been in the other direction. The aim of courts and Legislatures is to abolish technicalities and enable suitors to have the merits of their controversies fully tried. The Practice Act of 1903 (3 C. S. p. 4091, § 126) provides:

"In order to prevent the failure of justice by reason of mistakes and objections of form, the Court or a Judge at all times may amend all defects and errors in any proceeding in civil actions, whether there is anything in writing...