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Whalen v. Young

Decided: October 26, 1953.

STEPHEN WHALEN, ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF GEORGE WHALEN, DECEASED, AND STEPHEN WHALEN, GENERAL ADMINISTRATOR OF THE ESTATE OF GEORGE WHALEN, DECEASED, PLAINTIFF,
v.
JAMES S. YOUNG, DEFENDANT-THIRD PARTY PLAINTIFF, V. CARL HELM AND L. & H. TRANSPORTATION, INC., THIRD-PARTY DEFENDANTS



Civil action, on motions to strike complaint and cross-claim, etc.

Drewen, J.c.c. (temporarily assigned).

Drewen

This is a group of four motions. A brief foreword will explain them. On August 4, 1949 George Whalen, aged 19, came to his death in a collision of motor vehicles. On June 12, 1951 Stephen Whalen, father of decedent, was appointed administrator ad pros. and general administrator of decedent's estate. On June 14, 1951 the administrator ad pros. brought suit against defendant Young, who answered and counterclaimed. In January, 1952 Young filed a third-party complaint against Carl Helm and L. & H. Transportation, Inc., as third-party defendants, who, by motion returnable August 12, 1952, moved to dismiss the third-party complaint. The motion was granted. Thereafter the administrator ad prosequendum filed an amended complaint that includes as additional defendants the said Helm and L. & H. Transportation, Inc. The defendants last named now move for summary judgment on the amended complaint. This is the first motion before us. Subsequently the said Stephen Whalen, and Nellie, his wife, sought leave to be added as individual parties plaintiff in the main suit, and leave to file an amended complaint accordingly. This is the second motion before us. The next step in the procedure was the filing of a cross-claim by defendant Young against defendants Helm and L. & H. Transportation, Inc. The parties last named now move to dismiss the cross-claim, and in the alternative ask for certain other relief. This is the third motion before us. Young's cross-claim was thereafter amended, and motion to strike the cross-claim as amended, as well as for a denial of the right to amend, is the fourth motion before us.

The motions will be considered in their order, the first being that of Helm and L. & H. Transportation, Inc. for summary judgment on the administrator's amended complaint.

The ground of this motion is the alleged prior expiration of the statute of limitations. The first count of the complaint is for "death by wrongful act" (R.S. 2:47-1 to 6, in effect at the time of decedent's death, these sections being now substantially embodied in N.J.S. 2 A:31-1 to 6). The count alleges the date of the accident from which death ensued as August 4, 1949, and makes also the pro forma allegation that the action is commenced within two years of the happening of the accident and the death of decedent. The wrongful death statute (R.S. 2:47-3) provides: "Every action brought under the provisions of this chapter shall be commenced within two years after the death of the decedent and not thereafter." There is no dispute that the action against defendants Helm and L. & H. Transportation, Inc., was not brought until January 26, 1953, decedent's death having occurred, as stated, on August 4, 1949. We are not here concerned with the halting of the statute by defendants' non-residence, as we shall be later in another connection. The reason for this is that actions for wrongful death under R.S. 2:47-3 are definitely omitted from the non-residence provision of R.S. 2:24-7. The strict two-year period of limitations therefore obtains. Non-residence, moreover, is not countervailed by the terms of R.S. 39:7-2, as will be shown in connection with the present motion as addressed to the second count. The situation as to the first count thus calls for the application of R.R. 4:58-3. Summary judgment is accordingly granted in favor of defendants Helm and L. & H. Transportation, Inc., on the first count of the amended complaint.

Now as to the second count. This is based on decedent's alleged pain and suffering and on the alleged expenditure for medical care in an effort to bring about decedent's recovery. The motion for summary judgment on the second count of the amended complaint is predicated on the seventh defense of the answer, which pleads the statute of limitations. R.S. 2:24-2 provided:

"All actions for injuries to the person caused by the wrongful act, neglect or default of any person or persons, firm or firms,

individual or individuals, corporation or corporations within this state shall be commenced within two years next after the cause of any such action shall have accrued, and not thereafter."

(The present N.J.S. 2 A:14-2 which became effective January 1, 1952 is substantially the same.) For the purposes of this argument the non-residence of defendants Helm and L. & H. Transportation, Inc., within the terms of R.S. 2:24-7 is undisputed. The latter statute, as amended effective May 18, 1949 (L. 1949, c. 125, p. 495, sec. 1) reads:

"If any person against whom there is or may be a cause of action specified in sections 2:24-1, 2:24-2, 2:24-3, 2:24-5, 2:24-6, 2:24-16 or 2:24-17 of this Title is not a resident of this State when such cause of action accrues, or removes from this State after the accrual thereof and before the expiration of the times limited in said sections, or if any corporation not organized under the laws of this State, against whom there is or may be such a cause of action, is not represented in this State by any person or officer upon whom summons or other original process may be served, when such cause of action accrues or at any time before the expiration of the times so limited, the time or times during which such person is not residing within this State or such corporation is not so represented within this State shall not be computed as part of the periods of time within which such actions are required to be commenced by said sections; and the person entitled to any such action may commence the same after the accrual of the cause therefor, within the periods of time limited therefor by said sections, exclusive of such time or times of non-residence or non-representation."

The present statute, N.J.S. 2 A:14-22, is substantially the same.

Another statute pertinent to our problem is R.S. 39:7-2, as amended effective May 21, 1949. It reads:

"Any chauffeur, operator or owner of any motor vehicle, not licensed as required by the provisions of article two of chapter three of this Title (Sec. 39:3-3, et seq.), who shall accept the privilege extended by law to nonresident chauffeurs, operators and owners of driving such a motor vehicle or of having the same driven or operated in this State without a New Jersey registration or license, shall by the acceptance and the operation of such motor vehicle within the State, make and constitute the Director of the ...


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