Seidman, J.c.c. (temporarily assigned).
This motion for summary judgment presents for determination the unusual question of whether the personal representative of a deceased husband can maintain an action for wrongful death against the surviving widow who is not only an alleged tortfeasor but also the sole heir and next of kin of the decedent.
The pertinent facts are as follows: On May 15, 1966 decedent Jerald Lawson was a passenger in an automobile
which was being operated by his wife Florence Lawson along South 12th Street, Newark. The motor vehicle was involved in a collision with an automobile driven by an unidentified person. Lawson sustained fatal injuries.
The original complaint was filed by Florence Lawson, as general administratrix and as administratrix ad prosequendum of the estate of Jerald Lawson, against June Strelecki, Director of the Division of Motor Vehicles; City Chrysler-Plymouth, Inc., a corporation of New Jersey, and Newark Buick, Inc., a corporation of New Jersey. Another suit, instituted by Martha Zarumba, a passenger in the Lawson car, against Mrs. Lawson, the decedent's estate and the Director, is not involved in these proceedings.
Motions for summary judgment made by City Chrysler-Plymouth, Inc., and Newark Buick, Inc., were granted. Shortly thereafter the attorneys assigned to defend the Director wrote to counsel representing Mrs. Lawson, advising that "plaintiff in her representative capacity has failed to bring suit against Florence Lawson, individually," and suggesting that the complaint should be amended to add her as a party defendant. The letter also contained these remarkable comments:
"As you know, the Fund law requires that suits be brought against every one who is or may be liable. It further appears that under the law of New Jersey, she can sue herself in the position that she finds herself as plaintiff.
If she is not made a party defendant and judgment is recovered against the Director of Motor Vehicles, the Fund will oppose payment on the ground that suit has not been brought against all parties who may be liable."
Presumably in response to the letter, Mitchell Glucksman was appointed administrator ad litem of the estate of Jerald Lawson, and an amended complaint was filed in which he was substituted as plaintiff and Florence Lawson was added as a party defendant. Mrs. Lawson, obviously through her insurance carrier, now moves for summary judgment against the substituted plaintiff.
Although the complaint sought damages not only for the alleged wrongful death of Jerald Lawson but also, under N.J.S. 2 A:15-3, for personal injuries, counsel for plaintiff administrator conceded at the argument of the motion that death was instantaneous and stipulated that the claim was limited to such cause of action, if any, as existed under the Death by Wrongful Act statute, N.J.S. 2 A:31-1.
A wrongful death action can be brought only in the name of an administrator ad prosequendum, or, where decedent died testate and his will was probated, by the executor or administrator with the will annexed. N.J.S. 2 A:31-2. There is no provision for such suit to be instituted by an administrator ad litem, as was done here. Nevertheless, since the defect can be cured, if necessary, by appropriate ...