Gaulkin, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.
Plaintiff C. Lloyd Lawlor, individually and as executor of the estate of his deceased wife, Edith Lawlor, appeals from an order dated February 2, 1968 dismissing his suit as against defendant Cloverleaf Memorial Park Association and from an order dated June 7, 1968 dismissing his wife's claim under the Survival Act, and his per quod claim, against Dr. Joseph Lepree (Lepree) and The Rahway Hospital (the hospital). Lepree and the hospital cross-appeal from an order denying summary judgment in their favor as to the count for decedent's wrongful death.
On September 6, 1964 Mrs. Lawlor, while in the process of placing flowers on the grave of her mother in Cloverleaf Memorial Park, fell into a concealed hole and was injured. On February 16, 1965 she sought compensation for her injuries, and her husband sued per quod , in a suit against defendants Cloverleaf Memorial Park, Inc. (the corporation) and Cloverleaf Memorial Park Association (the Association).
On July 5, 1966 both defendants filed a third-party complaint against Lepree and the hospital charging negligence in the treatment of Mrs. Lawlor's injuries and seeking indemnification or contribution. On December 23 of the same year Mrs. Lawlor died, allegedly as a result of her injuries and of an infectious disease contracted while she was hospitalized.
On January 26, 1968 the court granted defendants' motion for summary judgment, finding that Cloverleaf Memorial Park, Inc. did not own the cemetery at the time of the accident, that Cloverleaf Memorial Park Association was a charitable institution within the intendment of N.J.S. 2 A:53 A -7 and that Mrs. Lawlor was a beneficiary of the charity and hence barred from recovery against it. At the same time the court granted leave to substitute the executor as plaintiff, to amend the complaint to include counts against Lepree and the hospital, directly, for negligence and malpractice, and a count for wrongful death against Cloverleaf, Lepree and the hospital. Following the filing of the amended complaint both Lepree and the hospital moved for summary judgment on the ground that the statute of limitations barred the counts against them. The trial judge, in an opinion reported, at 101 N.J. Super. 134, dismissed the counts for Mrs. Lawlor's injuries and Mr. Lawlor's per quod damages as barred by the two-year statute of limitations but declined to strike the count for wrongful death. Leave to appeal had previously been granted as to the dismissal as to Cloverleaf. The additional appeals followed (also pursuant to leave granted) and all appeals were consolidated.
Three basic issues are presented by the present appeals, viz. , (1) whether N.J.S. 2 A:53 A -7 et seq. conferred charitable immunity upon defendant Cloverleaf Memorial Park Association; (2) whether the two-year statute of limitations, N.J.S. 2 A:14-2, barred plaintiff's direct suit against defendants Lepree and the hospital for his wife's personal injuries and her pain and suffering, and his expenses and loss of services prior to her demise, and (3) whether the omission of Mrs. Lawlor to institute suit against them for her personal injuries within two years of the time of her last treatment barred an action for her wrnogful death brought more than two years after her injuries but less than two years after her decease. We treat them in that order.
The doctrine which affords immunity from liability for negligence to charitable organizations was enunciated by our highest court in D'Amato v. Orange Memorial Hospital , 101 N.J.L. 61 (E. & A. 1925). Thereafter, from time to time, broad exceptions to the rule were carved out, Kolb v. Monmouth Memorial Hospital , 116 N.J.L. 118 (E. & A. 1936); Rose v. Raleigh Fitkin-Paul Morgan &c. Foundation , 136 N.J.L. 553 (E. & A. 1948); Lindroth v. Christ Hospital , 21 N.J. 588 (1956), culminating in the outright repeal of the doctrine in Collopy v. Newark Eye and Ear Infirmary , 27 N.J. 29 (1958).
Thereafter the Legislature enacted L. 1959, c. 90, now N.J.S. 2 A:53 A -7, on which Cloverleaf's claim to immunity is based. It provides:
"No nonprofit corporation, society or association organized exclusively for religious, charitable, educational or hospital purposes shall, except as it hereinafter set forth, be liable to respond in damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association, where such person is a beneficiary, to whatever degree, of the works of such nonprofit corporation, society or association; provided, however, that such immunity from liability shall not extend to any person who shall suffer damage from the negligence of such corporation, society, or association or of its agents or servants where such person is one unconcerned in and unrelated to and outside of the benefactions of such corporation, society or association; but nothing herein contained shall be deemed to exempt the said agent or servant individually from their [ sic ] liability for any such negligence."
Neither L. 1959, c. 90, which later became N.J.S. 2 A:53 A -7 et seq. , nor its predecessor, L. 1958, c. 131, were accompanied by any statement of purpose. Their effect was to reinstate the common law doctrine as it had been defined in our courts. Cf. Wiklund v. Presbyterian Church of Clifton , 90 N.J. Super. 335, 338 (Cty. Ct. 1966).
Defendant Cloverleaf Memorial Park Association was originally incorporated in 1927 as Boulevard Park Cemetery
Association under the Rural Cemetery Act, Rev. 1877, p. 100, now R.S. 8:1-1 et seq. It operates a memorial park type cemetery in Woodbridge Township, Middlesex County. It adopted its present name on October 18, 1933. On January 2, 1936 it purchased from Cloverleaf Memorial Park, Inc. the land which it has improved and developed, and now maintains and operates as a place for the burial of the dead.
The spiritual and material benefits afforded communities by cemetery associations have long been recognized. Terwilliger v. Graceland Memorial Park Ass'n , 35 N.J. 259 (1961); Attorney-General v. Linden Cemetery Ass'n , 90 N.J. Eq. 404 (Ch. 1919). For this reason it has been held in numerous cases that lands dedicated and utilized as a place of sepulture are devoted to a charitable use; that cemeteries organized under R.S. 8:1-1 et seq. are proper objects for charitable bequests and represent valid charitable trusts. Passaic National Bank &c., Co. v. East Ridgelawn Cemetery , 137 N.J. Eq. 603, 607 (E. & A. 1945); Abra-May Cemetery Sales Co. v. Degel Yehudo Cemetery Corp. , 92 N.J. Super. 365 (Ch. Div. 1966); Di Cristofaro v. Laurel Grove Memorial Park , 43 N.J. Super. 244 (App. Div. 1957); Moore v. Fairview Mausoleum Co. , 39 N.J. Super. 309 (App. Div. 1956); Atlas Fence Co. v. West Ridgelawn Cemetery , 110 N.J. Eq. 580 (E. & A. 1932); Wendell v. Hazel Wood Cemetery , 3 N.J. Super. 457 (Ch. Div. 1949).
Plaintiff, while conceding that the association is incorporated under the Rural Cemetery Act and that cemetery services have been held to be charitable, urges that the statute did not contemplate the immunization from liability of such associations and, alternatively, that Cloverleaf did not qualify as a nonprofit association "organized exclusively" for charitable purposes within the contemplation of N.J.S. 2 A:53 A -7.
Our attention is not called to any New Jersey case in which the charitable immunity doctrine has been specifically
applied to the operation of a cemetery. In Spiegel v. Evergreen Cemetery Co. , 117 N.J.L. 90, 97 (Sup. Ct. 1936), where a verdict against a cemetery was upheld, the court noted that "the question of the liability of the corporate administrator of a charitable use for the willful wrong of its servant in the discharge of duties assigned to him is not raised, and therefore need not be regarded." However, in Long v. Rosedale Cemetery , 84 F. 135 (Cir. Ct. D.N.J. 1897) a complaint charging negligence on the part of a cemetery employee was sustained on demurrer as against the contention that defendant, organized under the predecessor to the present Rural Cemetery Act, was a charitable organization and hence not responsible for the wrongful acts of its servants. The court there noted:
"It is insisted that the defendant corporation is a charitable organization, and, as such, relieved from responsibility for the wrongful acts of its servants. The test which determines whether such an enterprise is charitable or otherwise is its purpose. If its purpose is to make profit, it is not a charitable enterprise. * * *. The court has not at hand any means by which this test may be applied, and is therefore unable to dismiss the plaintiff's suit on that ground." (at p. 136)
See also 14 Am. Jur. 2 d, Cemeteries , § 8, p. 707 (1964); cf. Olson v. Riverview Cemetery Association of Portland , 220 Or. ...