Clapp, Jayne and Schettino. The opinion of the court was delivered by Schettino, J.A.D.
Plaintiff appeals from a judgment of involuntary dismissal granted by the Law Division upon the conclusion of plaintiff's case on the ground, apparently, that there was insufficient proof of negligence on the part of the defendant which proximately caused the plaintiff's decedent's death. The motion on the alternative ground that the plaintiff's exclusive remedy was under the New Jersey Workmen's Compensation Act (N.J.S.A. 34:15-1 et seq.) was denied. This is a tort action arising out of the alleged wrongful death of decedent, an employee of defendant and husband of plaintiff.
Plaintiff's decedent died in New York City on February 23, 1955 of a heart attack. At the time, he was employed by defendant as a truck driver working out of its Kearny terminal. Prior to his death Dudley had been in good health but had had a cold during the several days immediately preceding February 23 and during these few days Dudley sought no outside medical treatment, administering aspirin and hot tea to himself.
When Dudley arrived at work on February 23 he had brought to the attention of Mr. Funke, defendant's assistant warehouse manager, that he, Dudley, was suffering from a
cold and would prefer to stay in New Jersey. Dudley made no complaint of any grievous illness or any claim that he could not properly perform his ordinary work at that time. His request to stay in New Jersey was not granted and he was assigned to a New York delivery, a run of some 12 miles from defendant's terminal.
The trip was delayed as the result of traffic congestion and Dudley and his truck did not arrive at the delivery point until approximately 10:45 A.M. During the course of the trip, Dudley told Ventura, his helper, that he was not feeling well but he appeared to be all right to the helper. Upon arriving at the delivery place, Dudley parked the truck, went into the receiving office, where he remained for approximately 15 minutes, then came out of the warehouse, re-entered the truck and, after driving around the block twice before locating a space, parked his truck.
About 11:25 A.M. Dudley complained to Ventura that he did not feel well, his arms were stiff, he was sweating and his nose was running. He asked Ventura to call the employer's terminal and tell defendant that he was sick. The call to the terminal was put through by Ventura at about 11:30 A.M., at which time the helper told Funke that Dudley was sick and wanted a relief driver. In reference to the conversation, the helper testified:
"I told him that he wasn't feeling good and he said as soon as he could he would get somebody, he would send them over, and in the meantime for him to sit in the cab and for me to take care of everything, start unloading."
Ventura further testified that after he returned from making the call, some five or ten minutes later, he saw Dudley walking around the truck staggering as if he were drunk, and that Dudley told him that he had never felt that way before. Dudley then sat in the cab of the truck at which time Ventura noticed that Dudley was sweating. Ventura began to unload the truck.
Shortly thereafter at about 12:10 to 12:15 P.M. Dudley asked Ventura to call plaintiff and to ask her to have her
brother come over to New York to pick him up. Mrs. Dudley told Ventura that she would try to reach her brother but that she was not certain that she could do so. Apparently unable to reach her brother, Mrs. Dudley called defendant's terminal and spoke to Funke at about 12:30 P.M. She testified:
"I told him I had a call from Ray's helper and that Ray was sick and that he wanted me to get my brother, and then I couldn't get my brother so Mr. Funke said he had heard that Ray was sick in New York but for me not to worry and he would get in touch and I call him back later."
Then at about 1:00 P.M. plaintiff again called Funke. She described the conversation as follows:
"He told me he got in touch with New York -- I don't know with whom -- and that Ray was feeling a little better and he would send help out and get a doctor and for me not to worry, there was a truck somewhere, I don't know, and for me to stay home in case there be another call and not to worry, that they get a doctor."
After lunch and from approximately 1:00 P.M. until sometime between 2:00 and 2:30 P.M. the helper was unloading the truck. During the period, on occasions, he was able to see Dudley in the cab. Sometime between 2:00 and 2:30 P.M. Ventura heard from a loud speaker that Dudley had just fallen from the cab. Someone called an ambulance and, when it arrived at approximately 2:30 P.M., Dudley was pronounced dead.
Nobody from defendant's terminal appeared until about 3:00 P.M., when a relief driver arrived. It was not until 4:30 P.M., when plaintiff again telephoned Funke, that she was told of her husband's death. Plaintiff's medical expert testified that decedent died from an acute coronary occlusion resulting in acute myocardial infarction; that additionally, in his opinion, the precipitating factor in Dudley's death was the lack of prompt medical assistance from the time the attack began to the time of his death.
Plaintiff brought this action under the provisions of the New York Decedent's Estate Law (McKinney's Consolidated
Laws of New York, c. 13, § 130) which is conceded by all involved to be similar to the pertinent provisions of our death act. (N.J.S.A. 2 A:31-1 et seq.) The action was brought under that act on the premise, similarly conceded by everyone involved, that pertinent principles of choice of law make the substantive law of New York controlling and, in addition, that the New York act applies to any wrongful death occurring in New York regardless of where the tort occurred. Since no evidence of the common law of New York with respect to the duty owed by defendant in a case such as this was presented, the trial court must have assumed that the common law tort principles are the same in New York as they are in New Jersey. In view of this and the ...