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October 24, 1966

Irwin JACOBSON, Executor of the Estate of Jack Jacobson, Deceased, Plaintiff,
ATLANTIC CITY HOSPITAL, a New Jersey corporation, Harry P. Goodman, and Lawrence Strenger, Defendants

The opinion of the court was delivered by: COHEN

 In this malpractice action against a hospital and two physicians, the defendant Atlantic City Hospital attacks the jurisdiction of this court and moves to dismiss the complaint as directed against it.

 Plaintiff invokes jurisdiction on the basis of diversity of citizenship and jurisdictional amount. *fn1" His complaint is directed against defendant, Atlantic City Hospital, acting through its agents and employees, for its alleged negligent failure in preventing decedent's fall from his hospital bed to the floor on July 24th, 1964 resulting in his death thereafter on August 23, 1964; and also against the individual physician-defendants, alleging improper diagnosis of the decedent's condition as well as negligence in his medical care and treatment. Damages are sought on behalf of the estate of decedent, under the New Jersey Survival Act, *fn2" for the pain and suffering sustained by the decedent prior to his demise, and under the New Jersey Death Act, *fn3" for the pecuniary losses to his dependent widow and daughter.

 Answers have been filed by all defendants. In addition, defendant Strenger filed a crossclaim against his codefendants under the Joint Tort Feasors Contribution Act, R.S. 2A:53A-1 et seq., N.J.S.A. However, the defendant hospital by its present motion challenges the jurisdiction of this Court, contending that under the substantive law of New Jersey its tort liability, if any, as a nonprofit charitable institution is limited by statute to a maximum recovery of $10,000, together with interest and costs of suit. *fn4"

 Counsel for the defendant hospital counters the contentions of plaintiff urging that the partial immunity statute protects it against claims asserted by any person who has been a beneficiary, directly or indirectly, of its nonprofit, charitable services, and that such a classification includes the interests which the plaintiff represents. It contends further that the New Jersey Death Act, although providing a cause of action for survivors, pertains principally to the establishment of rights of distribution with respect to the decedent's estate, and hence falls within the immunity statute.

 Such, in summary, are the contentions and arguments of the parties on this motion.

 This being a diversity action, the substantive law of New Jersey controls the rights and liabilities of the parties. 28 U.S.C. § 1652; Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Nolan v. Transocean Air Lines, 365 U.S. 293, 81 S. Ct. 555, 5 L. Ed. 2d 571 (1961); King v. Order of etc. Travelers, 333 U.S. 153, 68 S. Ct. 488, 92 L. Ed. 608 (1948); Burns v. Yanos, 232 F.2d 929 (3 Cir. 1956). However, the threshold inquiry is to the federal jurisdictional amount of recoverable damages.

 There is no dispute regarding the classification of the defendant hospital as a nonprofit eleemosynary corporation, R.S. 15:1-1 et seq., N.J.S.A., within the meaning of the New Jersey charitable immunity provisions of R.S. 2A:53A-7 and 8 et seq. N.J.S.A. *fn6" The action by the plaintiff is in two phases: on behalf of the decedent's estate and on behalf of dependent next of kin. The legal questions at the core of the problem are, whether the multiple claims against the individual defendant physicians can be aggregated with the claim against the defendant hospital on behalf of the estate in order to meet the requisite jurisdictional amount; and whether, the next of kin are recipients of the beneficence of the defendant hospital within the meaning and scope of the immunity statute, supra, and consequently limited in possible recovery of damages to a maximum of $10,000, thereby defeating the jurisdiction of this Court; and further, if the next of kin are beneficiaries under the statute, can the limited claim against the hospital be aggregated with those against the other defendants in order to provide the jurisdictional amount?

 The plaintiff urges with considerable persuasion that the concurrent negligence of all three defendants was logically integrated, in proximately producing the ultimate tortious result, *fn7" i.e., the ensuing death of the decedent. The "indivisible joint tort" theory, advanced for the purpose of aggregating personal injury damage claims in order to invoke federal jurisdiction, was considered in Trail v. Green, 206 F. Supp. 896 (D.C.N.J.1962), an opinion by Judge Lane of this Court. In that case, the defendants were a driver of a truck involved in a collision with the plaintiff, and the hospital where the latter was taken for treatment of his personal injuries. There, the court found the torts, if any, to be separate acts. However, at page 899, the following pertinent observation is made:

"Under the circumstances of a single indivisible result, the court could usually aggregate the claims against the defendants in order to achieve the requisite jurisdictional amount. See Cornell v. Mabe, 206 F.2d 514, 516 (5th Cir. 1953). Yet suppose plaintiff's injuries exceed $10,000, and we attempted to aggregate the claims against defendants. The hospital, unlike the ordinary defendant would still not be responsible for entire liability, but for merely $10,000 in light of N.J.S.A. 2A:53-8. (now 2A:53A-8)
"Therefore, whether the case before us presents controversies capable of separation or an integrated suit incapable of practical division, we face the same issue: Does the United States District Court have jurisdiction of a defendant non-profit hospital wherein plaintiff claims an amount above the jurisdictional requirement, though defendant could never be liable for this sum owing to a New Jersey state statute limiting the liability of non-profit hospital to an amount not exceeding $10,000?"

 The Court concluded that the case did not meet the jurisdictional test because of the limitation of recovery by the New Jersey statute, pointing out that federal courts will not expand their jurisdiction to accommodate litigants, so that where jurisdiction is doubtful in a diversity action the Court should dismiss the action. National Surety Corp. v. Chamberlain, 171 F. Supp. 591, 592 (N.D.Tex.1959). Such thinking accords with the opinion of this Court in the present matter, so that the count for pain and suffering alleged against the defendant hospital will be dismissed for lack of jurisdiction.

 The question of whether the partial immunity statute, 2A:53A-8, limits recovery under the Death Act to an extent which would fall below our jurisdictional amount appears to be one of first impression. While this issue is controlled by the substantive law of New Jersey, its courts have been silent thereon. In such a situation, resort must be had to an ascertainment of what, in the opinion of this federal court, the New Jersey Court of last resort would most probably determine, if presented with such a concrete case, as here. Rules of Decisions Act, 28 U.S.C. § 1652. As stated by this Court in Caporossi v. Atlantic City, New ...

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