Foley, Lewis and Herbert. Herbert, J.s.c. (temporarily assigned).
This is an appeal from an order of the Law Division which denied a motion for summary judgment made on behalf of the defendants. Being interlocutory, it is here by permission granted under R.R. 2:2-3.
On October 2, 1958 Ned Marshall was killed at a railroad crossing in Pittsburgh, Pennsylvania, when the motor vehicle in which he was riding was struck by a train. The case arises out of that accident. The defendants, a group of contractors engaged in a joint venture, are alleged to have assumed responsibility for conditions at the crossing, and the administrator of Marshall's estate demands damages from them for the death.
The complaint was filed February 5, 1960, more than a year but less than two years after the accident. Was it filed in time? That is the only question to be considered on this appeal. Had suit been brought on the same date in Pennsylvania it would have been too late. The statute of that state creating a cause of action for wrongful death is 12 P.S. , §§ 1601-1604. Section 1603 reads as follows:
"The declaration shall state who are the parties entitled in such action; the action shall be brought within one year after the death, and not thereafter."
The comparable New Jersey statute fixes a two-year limit for the commencement of actions based on fatalities caused by wrongs committed here. N.J.S. 2A:31-3. So, if the
accident which killed Ned Marshall had happened in this State the suit would be timely.
The general rule applicable to a suit in one state for a death caused in another is stated in 2 Beale on Conflict of Laws, sec. 397.1, page 1316 (1935):
"A limit of time for bringing suit contained in a statute giving damages for death is binding everywhere, and no state will allow suit after the time has clapsed. There is some difference of opinion where the limit in the statute of the state of wrong is a longer one than that in the state of forum."
It is argued for the plaintiff-respondent that this rule should not be applied to the present case. Rosenzweig v. Heller , 302 Pa. 279, 153 A. 346 (Sup. Ct. 1931), is cited as authority. In that case it was held that the one-year period of the Pennsylvania statute barred an action based on a death in a New Jersey accident even though suit had been brought in the Pennsylvania courts within the two-year period prescribed by our statutes.
This result was reached by declaring that the one-year period in which a plaintiff can sue under the Pennsylvania statute is a matter of general procedure, and hence applicable in the Pennsylvania courts to actions brought there on death claims arising elsewhere. It must be conceded that the Supreme Court of Pennsylvania used in its opinion broad language describing the one-year limit (12 P.S. , § 1603) as a statute of limitation rather than one conditioning the right of action. If sec. 1603 is merely a statute of limitations -- so the argument goes -- then a claim on a Pennsylvania fatality brought into the courts of another state has no condition of time attached to it, because a true statute of limitations is merely procedural and applies only in the courts of the state adopting it. To complete this reasoning the ...