Entry of judgment will be stayed pending the submission called for.
The briefs on both sides recited many factual details far beyond the pleadings. A copy of the hospital record and autopsy report was also available, Tr. 2/27/78, p. 8, 1.3 to p. 9, 1.19; p. 11, 1.21 to p. 12, 1.19; p. 31, 1.11 to p. 32, 1.1.
The factual basis for the motion to transfer venue to California was supported only by a letter attached to a brief.
In short, while quite a few facts were dealt with in the briefs and at argument, the court could only consider the facts alleged in the complaint, taking them as true.
There was no answer and no discovery. There were no affidavits with the moving papers or in the response.
The motion would better have been brought on after answer and at least on affidavits, and perhaps on request for admission of facts not in dispute, and then on motion for summary judgment.
Mention was made of another lawsuit arising from the same incident, Tr. 2/27/78, p. 6, 1.21 to p. 21, 1.20.
Since the court takes judicial notice of its own records, it appears from them that a suit was in fact begun within the two-year Death Act period in the New York state courts, against Valley Hospital alone. The suit was removed to federal court in the Southern District of New York, and then transferred to this district. Judge Meanor returned the case to the Southern District with the observation that there could be no federal diversity jurisdiction in view of the $10,000 limit set by N.J.S.A. 2A:53A-8. Presumably the Southern District will remand that collateral case to the New York courts.
It may well be that the attorneys had gained considerable knowledge about the facts not in dispute from that separate action; yet, what they learned was not part of the record in this case, though it might easily have been.
HARRIS, "PLEADING AND PRACTICE IN NEW JERSEY" (N.J.Law School Press, 1926).
§ 239. SAME - SURVIVAL OF ACTIONS AT COMMON LAW.
At common law only such actions survived as involved a property right. Whether the action was based upon a contract or upon a tort was not the deciding element. The crucial test was whether the estate of the wrong-doer derived a benefit or that of the injured suffered a loss from the breach of the contractual or tortious duty. The estate so affected did not die, and the personal representative, in whose possession it was, was either entitled to reclaim the loss or obliged to surrender the benefit unjustly acquired. As a result, a contract action for a breach of a promise to marry did not survive, since the injury was purely personal. On the other hand, a tort action for conversion of a chattel did survive, as the estate of the wrongdoer was enriched by the addition of such chattels.
But even in the case of an action which ordinarily was survivable at common law, a situation could arise in which such an action could not be enforced as against a particular executor or administrator. We have reference to joint obligors. The personal representative of a deceased joint obligor could not be joined as a defendant with the surviving obligors at common law.
§ 240. SAME - SURVIVAL OF ACTIONS UNDER PRESENT LAWS.
We are now confronted with the statute permitting the personal representative of a deceased joint obligor to be sued separately on a joint obligation,
and with the more modern rule of our present practice permitting a personal representative of a deceased co-contractor of a joint contract to join as plaintiff or be joined as defendant with the survivors.
As to those actions which did not survive at all at common law, our statutes now permit an executor or administrator to sue or be sued in an action for any trespass done to the person or property, real or personal, of their testator or intestate, as if he or she was living.
The foregoing statute, being remedial in character, the courts have endeavored to construe liberally.
The word "trespass" has been held to be equivalent to "tort". Every action, therefore, based upon a tort, to a person or property survives at the present.
As an example, an action for seduction of the daughter may be maintained, after the death of her father, by his personal representative.
An action for personal injury resulting from negligence or for deceit survives the death of the wrongdoer or that of the party wronged.
On the other hand, an action for libel and slander, not being an injury to the person, and no special damages to property being alleged, has been held not to survive.
An action for a breach of promise to marry, not being a tort action, does not come within the operation of the remedial statute.
The common law rule, therefore, which did not permit the two foregoing actions to survive, still prevails.
§ 241. SAME - THE DEATH ACT.
In the preceding section, statutes creating remedies for the enforcement of rights which were already in existence during the life of the testator or intestate were discussed. We now wish to consider a statute which created a new right in the personal representative which did not, and could not, exist during the life of his testator or intestate.
We have reference to the so-called Death Act.
The personal representative may sue in his own name for the benefit of the surviving husband or wife and next of kin to recover damages resulting from the wrongful death of the testator or intestate.
This right did not exist at common law and is purely statutory.
The personal representative and not the beneficiaries have control over the foregoing cause of action.
If the testator appointed an executor in his will, he is the one who can sue under the Death Act. In the absence of such an executor, an ordinary administrator cannot act, but the court will appoint a special administrator ad prosequendum to prosecute this action.
Since the right is purely statutory, every requirement of the Death Act must be complied with before the right to sue under it comes into being. Where the wrongful death has occurred in another state, the right to sue even in this state must be measured by the statute in force in that particular jurisdiction. The person, therefore, entitled to sue in the state in which the death occurred must appear as plaintiff in our courts.
§ 242. SAME - RELATION BETWEEN DEATH ACT AND THE ACT PERMITTING SURVIVAL OF ACTIONS.
The object of the Death Act is to create a right of action in favor of certain specified persons.
The purpose of the Act permitting the survival of certain actions is to extend the life of a right or a liability beyond the death of the testator or intestate in favor of or to the detriment of his estate. The two causes of action are entirely different. Under the present liberal practice as to the joinder of different causes of action, an executor may join in one action a count for damages resulting from wrongful death under the Death Act with a count for damages sustained by the decedent during his lifetime by reason of injuries from which he subsequently died.
This pronouncement is most important and many good lawyers have failed to take advantage of the opportunity.
The Act permitting certain actions to survive extends not only to common law but to all statutory rights of action which come within its purview.
A right of action under the Death Act survives against the personal representative of a deceased tort feasor, provided the action was brought within twenty-four months after the death of the injured party.