On appeal from the Superior Court, Appellate Division.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- Justice Oliphant. The opinion of the court was delivered by Wachenfeld, J.
Eward L. Devlin, on December 17, 1951 and prior thereto, was employed by the Holy Sepulchre Cemetery in Totawa, New Jersey, as a laborer and truck driver. On the morning of that day, he reported for work in the normal course of his employment and began his duties of driving a truck with a co-employee, Mike Karchko, who was his helper. Sometime between 9:30 and 10 o'clock in the morning he parked the truck near a rest room on the cemetery property and informed Karchko that he intended to avail himself of its facilities and would return in about five minutes.
Devlin entered the ladies' rest room, which it had been the custom of employees to make use of, closed the door, but did not lock it. When he did not return for about 15 or 20 minutes, Karchko became apprehensive and went to look for him. He opened the door and found Devlin unconscious in a sitting position on the floor in the corner between the wash basin and the stalls and about six feet from a gas radiator which was located there.
There was a strong odor of gas. Karchko immediately notified the superintendent of the cemetery and together they brought Devlin from the rest room. He was taken to St. Joseph's Hospital in Paterson, where he died as a result of illuminating gas poisoning.
Thereafter, George Surgent, Chief Medical Examiner of the County of Passaic and a defendant in this cause, issued a death certificate listing the death as "suicide." He filed the certificate with the defendant James A. Young, as Registrar of Vital Statistics of the City of Paterson, and also with the defendant Walter Scott, as Registrar of Vital Statistics of the State of New Jersey.
Devlin left surviving him his widow, the plaintiff in this action. She filed a complaint alleging the death certificate, in so far as it lists the death as "suicide," was erroneous "as a result of mistake" and that by reason of the statutes of the State of New Jersey which make a death certificate prima facie evidence of the facts contained therein, see
N.J.S. 2 A:82-12, she will be prejudiced by the erroneous death certificate and, unless it is corrected, will suffer irreparable harm. It is alleged that she is the beneficiary of certain policies of insurance held by the deceased under the terms of which double indemnity will be paid in the case of accidental death. It is further asserted, although not alleged in the complaint, that the erroneous death certificate constitutes an invasion of her right of privacy and will prejudice her in a workmen's compensation action which she intends to institute.
In her complaint she demanded judgment: (a) compelling the defendant George Surgent to file an amended and corrected death certificate showing the cause of death as "accident"; (b) compelling the defendant George Surgent to execute and file an amended death certificate deleting and expunging suicide as the cause of said death; and (c) enjoining the said James A. Young and the said Walter Scott against issuing copies of the erroneous death certificate. Subsequently, she modified her demands for relief and now asks only that the death certificate be amended by striking from it the statement that death was by suicide.
The defendants Surgent and Young filed answers. Surgent alleged, amongst other things, as a separate defense that the death certificate issued by him was in accordance with the duty imposed by law "upon the basis of facts indicating suicide and not an accident."
The defendant Young neither admitted nor denied any of the allegations contained in the complaint but stated that he had followed his duties in accordance with the law as Registrar of Vital Statistics of the City of Paterson. Scott filed no answer.
After a pretrial conference, Surgent served a notice of motion for summary judgment "on the ground that there exists no genuine issue of any material fact and that said defendant is entitled to a judgment as a matter of law." He filed an affidavit saying the certificate in question represented his "considered judgment and opinion as ...