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Engel v. Gosper

Decided: January 18, 1962.

EDNA G. ENGEL, AS ADMINISTRATRIX AD PROSEQUENDUM AND AS GENERAL ADMINISTRATRIX OF THE ESTATE OF HERBERT D. ENGEL, JR., DECEASED, PLAINTIFF,
v.
RALPH W. GOSPER AND WILLIAM GOSPER, A MINOR, LUTHER LE CONEY, JR., A MINOR, CECILIA WEINSTEIN, THE BOARD OF EDUCATION OF THE TOWNSHIP OF PENNSAUKEN, NEW JERSEY, MORRIS HULSIZER AND THE BOARD OF EDUCATION OF THE TOWN OF MERCHANTVILLE, NEW JERSEY, DEFENDANTS



Fulop, J.c.c.

Fulop

This is an action for personal injuries to a decedent and for his death by wrongful act of the defendants. Plaintiff sues as general administratrix and as administratrix ad prosequendum of the estate of her son, who was allegedly injured on October 10, 1959 at Beach Haven in Ocean County, New Jersey, as the result of the explosion of a home-made rocket projectile built and ignited by high school boys. Plaintiff's decedent died on April 4, 1960, at Overlook Hospital in Summit in Union County, New Jersey, allegedly as a result of the explosion.

The original defendants were two boys who made and ignited the projectile. Plaintiff has amended her complaint to add two science teachers of the minor defendants and two boards of education who employed these teachers. The allegation is that the teachers improperly instructed the boys with respect to the rockets, encouraged them to experiment with them, failed to warn of the danger involved, and in other respects negligently contributed to bring about the tragic result.

The boards of education are charged with the acts of the teachers under the doctrine of respondeat superior and for hiring allegedly unsuitable instructors. Both of the boards are situated in Camden County.

The original defendants have brought in a third-party defendant seeking contribution from him as a joint tortfeasor.

The defendants Cecilia Weinstein and Board of Education

of Pennsauken move to dismiss the complaint for failing to set forth a cause of action, and for failing to allege that the action was instituted within two years after the date of death, as required by the Death Act, N.J.S. 2A:31-3. The same defendants move in the alternative to change the venue of the action to Ocean County. Defendants Hulsizer and the Board of Education of the Town of Merchantville join in the motion for change of venue.

The motion to dismiss for failure to state a cause of action is denied. The claims against the defendants Weinstein and the Board of Education of Pennsauken seem tenuous. However, defendants have not filed any affidavits. Although it is argued that Mrs. Weinstein terminated her instruction of defendants two years before the accident, that fact does not appear of record. None of the facts alleged in the amended complaint are denied. The allegations of the amended complaint, construed most favorably to the plaintiff, are sufficient.

The failure to allege that the action was instituted within the period permitted by the statute may be corrected by amendment. The statutory period has not yet expired.

The troublesome question in the case is venue.

Defendants argue that an action against a municipal body is a local action. They cite out-of-state authority for the proposition that municipal officials should not be required to go beyond their home county to defend a suit. Oddly enough, this would not support a transfer to Ocean County for which the defendants contend. It would require a transfer to Camden County, which is not sought.

However, the law of this State is that a transitory action does not become local because the defendant is a municipal corporation or like public body, in the absence of a statute or rule so providing. N.J. Imperial Road Co. v. County of Gloucester , 80 N.J.L. 640 (Sup. Ct. 1910), review declined, 82 N.J.L. 535 (E. & ...


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