On certified appeal to the Appellate Division from the Law Division of the Superior Court.
For reversal -- Justices Heher, Oliphant, Wachenfeld and Burling. For affirmance -- Chief Justice Vanderbilt, and Justices Jacobs and Brennan. The opinion of the court was delivered by Heher, J.
The issue raised by this appeal is one of jurisdiction involving the defendants alone.
The action was brought on June 14, 1951 to recover damages for the pecuniary loss suffered by the next of kin of plaintiff's decedent, George Whalen, in consequence, it is said, of his death by the wrongful act, neglect or default of the defendant, James S. Young, as provided by R.S. 2:47-1 et seq., now N.J.S. 2 A:31-1 et seq., and as well damages for pain and suffering endured by the deceased and the expenditures made for his medical care.
The fatality occurred August 4, 1949, as the result of a collision between a tractor-trailer operated by the defendant Young and a motorcycle driven by one Ross on which the
deceased was riding. Death came within a few hours, it is averred, on the very day of the accident.
The complaint alleged that Young, a resident of Pennsylvania, was the owner of the tractor-trailer; and he was served with process through the Director of the Division of Motor Vehicles in the Department of Law and Public Safety of New Jersey pursuant to R.S. 39:7-2, as amended by L. 1949, c. 190. There was a later amendment of this section. L. 1950, c. 251. Young answered denying negligence and pleading contributory negligence and assumption of risk; and he counterclaimed for personal injury and damage to his vehicle. There was an answer denying the counter-allegation of fault.
On January 30, 1952, by leave of court, Young interposed a third-party complaint charging that L. & H. Transportation, Inc., "by Carl Helm, owner of the corporation," was the "employer" of Young, and in the operation in question, he, Young, was the "agent, servant or employee" of Helm and the corporation, and as such "had been directed to Pittsburgh * * * to pick up some freight on behalf" of the corporation, under an "agreement" that the corporation would, inter alia, provide "liability insurance" coverage "for the trip in accordance with the usual custom of the trade." There was a demand for judgment against Helm and the corporation, both residents and domiciliaries of Pennsylvania, "for any and all relief * * * adjudged against" Young in favor of the plaintiff administrator.
On August 14, 1952, on motion made by the corporation, the third-party complaint was dismissed. The order does not reveal the ground of dismissal; the reasons set down in the formal notice of the motion to dismiss were the failure to allege leave of court under Rule 3:14-1, now R.R. 4:14-1, and the asserted want of "identity or relation" between the plaintiff's claim against the defendant and the defendant's claim pleaded in the third-party complaint, which was said to be "premature." A "more definite statement" of the third-party claim was asked; also a "severance" of the "third-party complaint from the main action," for fear of prejudice
to the defendants, particularly the third-party defendant, and a "stay of the trial of the third-party complaint."
On January 26, 1953 the plaintiff, with leave of court, filed an amended complaint reiterating that Young was the "owner" of the tractor-trailer in question, but also alleging, by several averments, that the vehicle was owned, operated and managed by Helm and the corporation, and its operation by Young at the time of the mishap was in pursuit of their business; and there was a prayer for judgment against all three defendants, jointly, severally, or in the alternative. Again, there was service upon the Director of the Division of Motor Vehicles of process directed to Helm and the corporation, and due notice was given to these defendants by registered mail.
The added defendants answered, February 16, 1953, denying the allegations of the complaint, and, by separate defenses, they disclaimed negligence, pleaded contributory negligence, assumption of risk, negligence by the operator of the motorcycle and a joint or common enterprise for gain between him and the deceased which rendered the negligence of one attributable to the other, and the bar of R.S. 2:47-3, now N.J.S. 2 A:31-3, as an action not brought within two years after the death of the deceased. An amended answer, filed two days later, alleged that the cause of action for pain and suffering, pleaded by plaintiff as the deceased's general administrator, was not commenced within two years after the "cause of action accrued against" Helm and the corporation, and "is therefore barred by the statute of limitations."
On March 4, 1953 Helm and the corporation gave notice of a motion for summary judgment on the amended complaint as pleading causes of action barred by the statute of limitations; and on December 15, 1953, the motion was granted as to the first count, but ...