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Dubil v. Labate

Decided: June 28, 1968.

MARGARET DUBIL, AS ADMINISTRATRIX AD PROSEQUENDUM AND AS GENERAL ADMINISTRATRIX OF THE ESTATE OF CHESTER M. DUBIL, PLAINTIFF-RESPONDENT,
v.
PHILIP A. LABATE, TRUMAN D. BOYES, RADFORD BROKAW, JOSEPH A. CIPOLLA, JACK C. GARDNER, MERTON L. GRISWOLD, JR., NANCY D. DAVIS, FREDERICK W. LATHROP, JR., JULIUS B. MINTZ, WALTER P. PETER, JR., GENE B. ZAINO, THOMAS S. P. FITCH, FRANK C. DRESDALE, RICHARD C. PETERS, JOHN P. CANNIS, EDWARD M. COE, HAYWARD F. DAY, JOSEPH M. GANNON, CARL G. HANSON, PAUL K. JOHNSON, EMIL A. KRATZMAN, RICHARD W. LANG, THEODORE LOIZEAUX, GEORGE H. MARTS, CHARLES T. STEFFENS, BERNARD WALLACH, LEO E. BARON, BONG HAK HYAN, MUHLENBERG HOSPITAL, A NEW JERSEY CORPORATION, BERNARD J. SUSSMAN, DOMINICK A. SCIALABBA AND PLINA HAMMOND, DEFENDANTS-APPELLANTS



For modification -- Chief Justice Weintraub and Justices Jacobs, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Proctor, J.

Proctor

Plaintiff, administratrix ad prosequendum and general administratrix of the estate of her husband Chester M. Dubil, brought this action to recover damages for herself and their four infant children for his allegedly wrongful death. The plaintiff has remarried and is now the wife of Frederick Whiteley by whom she has a child. On plaintiff's motion before trial the pretrial order was amended:

"ORDERED, that the fact of remarriage of the plaintiff is not to be made known, or commented upon, to the jury during the trial of this matter or during voir dire, and that during the trial reference to plaintiff shall be only by use of the name 'Margaret Dubil'. The Court will conduct the preliminary examination of the prospective jurors as to their business or social contacts with the parties and witnesses, including reference to their past and present places of residence or business, and will include in such list 'Mr. Frederick R. Whiteley and Mrs. Margaret Whiteley of 143 Henry Street, South Amboy.' Counsel may supplement the Court's interrogation to prospective jurors providing no reference is made to the remarriage."

The defendant obtained leave from the Appellate Division to challenge this provision in an interlocutory appeal. We certified the matter before argument there. R.R. 1:10-1.

The question before us -- one which previously has not been decided by our State's highest court -- is whether the remarriage of a surviving spouse may be utilized by a defendant in a wrongful death action to mitigate damages.

Of the many American jurisdictions which have considered the question, all but two (Mississippi and Wisconsin) have held that the remarriage of a surviving spouse, or the possibility thereof, does not affect the damages recoverable for the wrongful death of the deceased spouse. E.g., Bunda v. Hardwick, 376 Mich. 640, 138 N.W. 2 d 305 (1966) (overruling prior Michigan decisions); Reynolds v. Willis, 209 A. 2 d 760

(Del. Sup. Ct. 1965); Johns v. Baltimore & Ohio Railroad Company, 143 F. Supp. 15, 28-29 (W.D. Pa. 1956), affirmed mem., 239 F.2d 385 (3 rd Cir. 1957); The City of Rome, 48 F.2d 333 (S.D.N.Y. 1930); J.A. Robinson Sons, Inc. v. Ellis, 412 S.W. 2 d 728 (Texas Ct. of Civ. App. 1967); Benwell v. Dean, 249 Cal. App. 2 d 345, 57 Cal. Rptr. 394 (Ct. App. 1967); Finkel v. State, 37 Misc. 2 d 757, 237 N.Y.S. 2 d 66 (Ct. Cl. 1962). See cases collected in Annotation 87 A.L.R. 2 d 252 (1963); 3A Frumer, Benoit, Friedman & Kaufman, Personal Injury: Actions, Defenses, Damages 156 (1965). Contra, Campbell v. Schmidt, 195 So. 2 d 87 (Miss. Sup. Ct. 1967); Jensen v. Heritage Mutual Ins. Co., 23 Wis. 2 d 344, 127 N.W. 2 d 228 (1964); Mead v. Clarke Chapman & Co., Ltd. [1956] 1 All E.R. 44 (C.A.)

In New Jersey, the measure of damages under the Wrongful Death Act, N.J.S. 2 A:31-1 et seq., is the "deprivation of a reasonable expectation of a pecuniary advantage which would have resulted by a continuance of the life of the deceased." McStay v. Przychocki, 7 N.J. 456, 460 (1951); Carter v. West Jersey & Seashore R.R. Co., 76 N.J.L. 602, 603 (E. & A. 1908). The amount of the recovery under this standard is based upon the contributions, reducible to monetary terms, which the decedent reasonably might have been expected to make to the survivors, and is not related to their needs. Clearly, even were a widow to show that her financial needs were greater than the amount her husband formerly provided, she would not be entitled to a recovery greater than the reasonable expectation of pecuniary benefits lost by her husband's death.*fn1 That a widow is in a better financial position after her husband's death --

whether because of insurance benefits, inheritance, or her own earnings -- likewise provides no reason, under our statutory scheme, for a diminution of her recovery.

That the receipt of such benefits should not reduce the award long has been recognized in the doctrine that a tortfeasor may not show in mitigation of damages that the plaintiff has received pecuniary advantages from a collateral source. Patusco v. Prince Macaroni, Inc., 50 N.J. 365, 368 (1967) (holding that a wife may recover medical expenses from a tortfeasor despite the fact that her husband, and not she, is responsible for their payment); Long v. Landy, 35 N.J. 44, 55-56 (1961) (holding that a wife's recovery from her husband's estate for injuries negligently inflicted upon her by the husband is not reduced by inheritance from the husband and payments made to her under his insurance policies); Muradian v. Paganessi, 3 N.J. Misc. 320 (Sup. Ct. 1925) (holding that the receipt by plaintiff of insurance on the life of the decedent may not be shown in a wrongful death action to reduce plaintiff's recovery); Hexamer v. Public Service Railway Co., 4 N.J. Misc. 184 (Sup. Ct. 1926) (holding that a widow's recovery for the death of her husband was not to be diminished by the inheritance she received from him). See also Rusk v. Jeffries, 110 N.J.L. 307, 311 (E. & A. 1933); Weber v. Morris and Essex R.R. Co., 36 N.J.L. 213, 215 (Sup. Ct. 1873). As we recently said in Patusco, supra, at p. 368: "It should not concern the tortfeasor that someone else is obligated to aid his victim because of a duty assumed by contract or imposed by law. * * * [A] wrongdoer cannot claim the benefit of the rights his victim may have against others by virtue of contract, employment, or ...


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