Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
McLAUGHLIN, Circuit Judge.
This suit arises out of an intersection automobile accident which occurred in Paterson, New Jersey, about 7:30 A.M., December 27, 1952.A taxicab, operated by appellant's decedent, Pelletere, was proceeding north on Auburn Street which at its right angle intersection with Van Houten Street is a "stop street". Appellee, Saia, in a 1948 Oldsmobile convertible was driving west on Van Houten. The cars collided somewhere within the intersection of the two streets. Pellettere died January 1, 1954. On December 17, 1954, appellant filed his complaint in the district court. Alleging diversity of citizenship and jurisdictional amount in controversy, the complaint charged that the accident was Saia's fault. Appellant as general administrator sought damages resulting from his decedent's personal injuries together with the latter's expenses and loss of earnings in connection therewith. In that first count he alleged that Pelletere had died as a result of the accident. In the second count appellant, as administrator ad prosequendum on behalf of the next of kin, sued under the New Jersey Death Act, N.J.S.A. 2A:31-1 et seq. The answer, inter alia, denied negligence on the part of the appellee and denied that Pelletere had either been injured or had died as a consequence of the collision. The case was tried on the issues indicated by the pleadings. The jury gave a verdict of five thousand dollars in favor of the plaintiff as general administrator. On the death claim there was a verdict of no cause for action. The general administrator judgment was paid and cancelled of record. From the judgment entered in the ad prosequendum count this appeal was taken.
Appellant's first point is that the determination of the negligence and contributory negligence issues by the jury in the general administrator action is not binding on the administrator ad prosequendum claim.
These were two different causes of action arising out of the same wrongful acts. In both claims plaintiff charged that Saia's negligence occasioned the collision. In the general administrator count damages were sought for personal injuries to Pelletere and for his consequent losses and expenses. As administrator ad prosequendum the plaintiff, asserting that Pelletere's death resulted from the accident, asked for damages on behalf of the next of kin. The same defenses were presented to both actions and included that of Pelletere's contributory negligence.
The court correctly instructed the jury as to negligence and contributory negligence. Coming to damages, the court, first with regard to plaintiff as general administrator, said:
"The plaintiff is under a burden to prove by a fair preponderance of evidence a causal connection between the injury and the accident. If you determine that the injury for which compensation is here sought was not related to the accident, there can be no compensation. There must be causal connection between the injury for which claim is here made and the accident, itself, which the plaintiff alleges resulted in the injury.
"If you determine that the plaintiff is entitled to a verdict in his favor you will award him such sum as in your judgment will fairly and justly compensate him for the injury or injuries sustained and the consequent damage which resulted therefrom."
Taking up the death claim the court charged:
"The burden is upon the plaintiff to prove likewise here, not only that the deceased Pelletere died, but that his death resulted from injuries caused in the accident. There must be proof by a fair preponderance of evidence of a causal relation between his death and the injuries sustained in the accident. If you determine from the evidence and the inferences of which the evidence is reasonably susceptible that the decedent Pelletere died from causes not related to the accident, the defendant is not answerable in damages.
"Now, it becomes important here because I foresee a situation in which you might - I am not suggesting that you shall, I am not intending to imply that I entertain any opinion about it - you may come to the conclusion that the deceased suffered some injury from the accident for which he is entitled to compensation, and if all the other elements of proof have been met - and I don't want to go through them again- then he would be entitled to a verdict on that claim alone.You may determine, in view of the posture of the testimony and the conflict of the medical testimony of the doctors, that the death, ultimate death of Pelletere had no relation to the injuries sustained in the accident. In other words, you then have to return a verdict for the defendant."
Early in the charge the judge had advised the jury that two separate claims were involved and that a verdict had to be returned on each. He repeated this at the end of his instructions and for a guide gave the jury a sheet of paper with the caption of the suit appearing on it. The verdict was returned through the foreman. The transcript of this reveals the jury's complete understanding of and compliance with the court's instructions. It reads:
"The Clerk: Ladies and gentlement of the jury, have you agreed upon your verdict?
"The Foreman: Yes, we have agreed upon a verdict and I as the Foreman shall ...