On appeal from a judgment of the District Court of the City of Camden.
For the appellant, Abraham J. Slurzberg.
For the respondent, Collins & Corbin (Edward A. Markley and James B. Emory, of counsel).
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. The question for decision is whether plaintiff was the wife of George Albert Franzen at the time of his death on August 6th, 1939. If so, she is entitled to the proceeds of a group insurance policy issued by defendant to the deceased's employer, E.I. duPont de Nemours & Co., Inc. The employment commenced prior to the time of the asserted marriage; and Franzen designated his father as the beneficiary of the policy. The designee died on January 22d, 1939, but the insured failed to appoint a substitute beneficiary. The policy provided that, in the event of nonappointment of a beneficiary, the insured's widow, or his mother if he died unmarried, would be entitled to the stipulated benefits.
The issue was resolved in the negative by the District Court Judge, sitting without a jury. There was no ceremonial marriage; and the ruling was that the evidence did not establish plaintiff's contention of a common law marriage in New Jersey on April 17th, 1937, two days before the insured's departure for the State of Louisiana to labor there in the service of his employer, but rather that it suggested merely "an agreement to be married as soon as possible," and that, though they lived together in Louisiana, and "from that point on, and until his death on August 6th, 1939," the insured's "references to the plaintiff, with his fellow workmen, and their families, incontrovertibly by the testimony, and admittedly by the defendant, were as his wife," and "there
is no doubt that the course of conduct between the plaintiff and decedent followed in Louisiana was that of husband and wife," there was no contract of marriage in compliance with the requirements of the Louisiana Code.
Error is assigned upon the admission into evidence, on respondent's motion and over appellant's objection, of an ex parte affidavit made by a member of the bar of the State of Louisiana purporting to reproduce verbatim certain provisions of the revised Civil Code of that state, adopted in 1870, pertaining to the constitution of the contract of marriage, and passages from opinions rendered in two Louisiana cases not "reported in the Southern reports," i.e., "Succession of Lorenzo Alexander and Julia Sharkelford, or Washington, his wife (Court of App.), 4 Court of Appeal, Parish of Orleans, 272 (at p. 275), and Powers v. Executors of Charmbury (Supreme Court), 35 La. Ann. 630 (at p. 632)."
The specifications are that the affidavit was insufficient in content, in that it did not reveal "whether the law stated therein was in effect at the time the appellant and decedent cohabited in the State of Louisiana, and if so, how it was applicable to the facts before the court;" that "this manner of proof denied the appellant her fundamental right to cross-examine the affiant as to his special qualifications as an expert witness and as to the application of the authorities to the facts in the case at issue," and that, at all events, it was incumbent upon defendant to introduce also expert opinion as to the law of Louisiana relating to the contract of marriage "as shown by exposition, interpretation and adjudication."
The general rule at common law is that a foreign law is essentially a matter of "fact" determinable by the jury. Unlike the lex fori, it is not the subject of judicial notice. Until recently, this principle has prevailed in this state. Title Guarantee and Trust Co. v. Trenton Potteries Co., 56 N.J. Eq. 441; Fithian v. Pennsylvania Railroad Co., 91 N.J.L. 275; Coral Gables, Inc., v. Kretschmer, 116 Id. 580. But the wisdom of committing this function to ...