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McGarvey v. Atlantic City

Decided: September 22, 1939.

JOSEPHINE MCGARVEY (SOMETIMES KNOWN AS JOAN IDA ROGERS), PLAINTIFF-APPELLEE,
v.
ATLANTIC CITY AND SHORE RAILROAD COMPANY, A CORPORATION, DEFENDANT-APPELLANT



On appeal from the Atlantic County Circuit Court.

For the plaintiff-appellee, Louis B. LeDuc and Samuel Morris.

For the defendant-appellant, Bourgeois & Coulomb.

Wolfskeil

The opinion of the court was delivered by

WOLFSKEIL, J. Plaintiff was seriously injured when caught between two trolley cars of the defendant corporation operating on parallel tracks on Atlantic avenue in Atlantic City, and recovered judgment for consequent damages. Defendant appeals.

The accident occurred at the intersection of Atlantic and Connecticut avenues. Plaintiff was on the south side of Atlantic avenue and proceeded across the street. There is evidence that the traffic light was green when she started, though this is disputed by defendant's testimony. A west-bound car was at or near the intersection and an east-bound car was about one block distant. Directly after plaintiff started the light changed from green to red. The near car was in the line of her direct crossing. On the platform of that car was an employe of the defendant not at the moment engaged in work but who happened to be riding on the car. He motioned plaintiff to pass in front of the car but instead she turned and walked toward the rear. Meanwhile the other car was approaching the intersection.

There was evidence that the motorman of this car did not see plaintiff, though other persons in the car did, nor did he sound his gong to give warning of approach until after plaintiff had been passed. The east-bound car reached the car near the intersection just about as the latter had started to move and plaintiff was struck by one or both of the cars as they paralleled each other.

Defendant presented twenty grounds of appeal. Four were not urged in the brief, and are therefore regarded as abandoned. Other points concerned themselves with failure to strike the complaint because of a change in name of plaintiff, refusal to charge as requested, and alleged error in the charge.

Plaintiff commenced the suit as Joan Ida Rogers. Prior to actual trial, application was made by her to have the suit proceed under the name Josephine McGarvey, and contemporaneously defendant sought to have the summons quashed and the complaint struck because of misnomer. Error is assigned to the trial court's permission for amendment in plaintiff's name, it being urged that this constituted fraud and misrepresentation upon defendant.

It is well settled that where a change in name might be tantamount to initiation of a new or different suit after the statutory time limit had elapsed, or when such change inures to a fraudulent or unjust result, it will not be allowed. Macknowski v. Hudson and Manhattan, 121 N.J.L. 126; Doran

v. Thomsen, 79 Id. 99. No such outcome is caused in this case by the permitted change. There is no alteration in identity, no enlargement of an existing suit and no introduction of any new suit beyond the statutory period within which suit could be brought. There is evidence that plaintiff was known to defendant or its counsel by the second name, so that no element of surprise or harm to defendant intervened through its use. The common law does not prohibit the assumption of any name, unless for a fraudulent purpose, or unless inhibited by a statute or judicial adjudication. State v. Librizzi, 14 N.J. Mis. ...


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