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HOLZSAGER v. WARBURTON

June 12, 1978

Barbara G. HOLZSAGER, Executrix of the Estate of Donald M. Holzsager, et al., Plaintiffs,
v.
Jack C. WARBURTON, Defendant



The opinion of the court was delivered by: BIUNNO

 This is a suit by decedent's widow, brought in her capacity of executrix of decedent's estate, in her own right individually, and as parent and natural guardian of four minor children of the marriage.

 Taking as true the facts alleged, it appears that on that date the decedent was treated by the defendant, a New Jersey physician, at Valley Hospital in this State; that Dr. Warburton was employed by Valley Hospital pursuant to an agreement between them; that Dr. Warburton represented himself as competent to render medical care and treatment to members of the general public including decedent, but that in fact he failed to render "adequate, customary and necessary medical care or treatment" and was negligent in the care and treatment he did provide.

 The first count alleges that as a result, the decedent sustained severe and serious bodily harm, injury, pain and suffering which resulted in his death "on or about" December 14, 1974.

 The second count repeats the first, and alleges that by reason thereof the widow sustained various expenses including funeral and burial expense.

 The third count repeats the first and second counts, and alleges that as a consequence the "next of kin" of decedent were deprived of his support and maintenance, companionship, guidance and instruction and have suffered pecuniary loss and damage.

 The fourth count (which does not repeat the earlier allegations, but which is read as though it did), claims that the widow has sustained loss of decedent's companionship, services, society, emotional support and consortium, along with great mental anguish and suffering, all of which have caused pecuniary damages.

 The fifth count (which does not repeat the earlier allegations but which is read as though it did) names four children of decedent and plaintiff: Seth, born February 6, 1964; Keith, born December 13, 1965; Laura, born July 21, 1967; and Craig, born March 19, 1970. It claims that these children have been deprived of decedent's support and maintenance, companionship, guidance and instruction and have accordingly suffered pecuniary loss and damages. *fn1"

 Judgment is demanded as follows: Count 1, $5. million; Count 2, $10. thousand; Count 3, $5. million; Count 4, $2. million; Count 5, $5. million, all with interest from December 14, 1974. *fn2"

 There is also a demand for "trial by jury of 12 persons", although for some time the General Rules of this district have set juries in civil cases at 6 persons.

 Suit was begun when the original complaint was filed November 2, 1977, nearly 3 years after the events complained of. Service of summons and complaint on Dr. Warburton was effected November 15, 1977 in Laguna, California by the U.S. Marshal for the Southern District of California, with answer due within 35 days. By stipulation and order, the time to respond was extended to December 29, 1977.

 On December 29, 1977, Dr. Warburton served and filed a notice of motion to dismiss the complaint or, in the alternative, to transfer venue to the Central District of California.

 By stipulation and order of February 14, 1978, the motion was carried to February 27, 1978, at which time it was heard, and decision reserved pending further submissions to be made by March 20, 1978 (Tr. of 2/27/78, p. 32).

 Jurisdiction

 Analysis of the complaint

 Although subdivided into five "causes", the claims fall into the following categories: (1) a death claim under N.J.S.A. 2A:31-1, et seq.; (2) a personal injury claim (including pain and suffering) for damages suffered by the decedent up to his death, which survives death under N.J.S.A. 2A:15-3; (3) expenses incurred by the widow for funeral and burial expense; (4) a "common-law" claim for pecuniary loss to the widow as a consequence of the death; and (5) a "common law" claim for pecuniary loss to the four children as a consequence of the death. The claim for funeral expenses, as well as the two "common law" claims, embrace the same scope as the claim under the Death Act.

 New Jersey is a common law state. The common law of England at the time of independence, was continued until altered by future law of the legislature by N.J. Const., 1776, Art. 22. A like provision was stated in N.J.Const., 1844, Art. 10, § 1. This pattern was continued by N.J.Const., 1947, Art. 11, § 1, par. 3.

 At common law, as applied in New Jersey, the only causes of action that survived the death of a claimant were those that involved a property right, without regard to whether the action was based on contract or tort. See, Appendix, quoting § 239 of Harris, Pleading and Practice in New Jersey (New Jersey Law School Press, 1926), and cases cited there.

 This common law rule was changed by statute, at least as far back as 1855, (2 Gen.Stat. p. 1426), later 1910 N.J.Comp. Stat. p. 2260, §§ 4 and 5, which became N.J.R.S.1937, § 2:26-9, and which is now N.J.S.A. 2A:15-3. And see, Appendix, quoting § 240 of Harris, supra.

 Also, at common law as applied in New Jersey, there was not, and could not be, a cause of action for "wrongful death", as it is now known, because the claim could not have existed during the lifetime of the decedent and so was not reached by the "survival" statute. By statute, enacted at least as far back as N.J.P.L.1848, p. 151, later 1910 N.J.Comp.Stat. p. 1907, §§ 7 and 8, which became N.J.R.S.1937 § 2:47-1, et seq., and which is now N.J.S.A. 2A:31-1, et seq., an entirely new cause of action was created, the Death Act, which did not exist at common law in New Jersey. See, Appendix, quoting § 241 of Harris, supra.

 As observed in the Appendix, quoting § 242 of Harris, supra, the "survival" statute (now N.J.S.A. 2A:15-3) dealt with causes that existed during a decedent's lifetime and which were allowed to survive death; while the Death Act created an entirely new cause of action that did not exist in decedent's lifetime but which sprang up with his death. The two causes of action "are entirely different", although practice rules allowed the joinder of both in a single complaint.

 The 1926 Harris text is referred to because it, and the later edition keyed to the 1937 Revised Statutes (Baker, Voorhees, 1939) was the major New Jersey practice work, widely relied on by bench and bar, until the coming into effect of the new judicial system on September 15, 1948. Few contemporary reference works on local law have much discussion of the common law and statutory history in New Jersey.

 The New Jersey Practice Series (West, 1962) has no comprehensive treatment of the subject as in the Harris text. Some references are found in Vol. 6 (Wills and Administration), e.g., §§ 1032, 1033, 1110, 1111, but there is no discussion of the Death Act in cases brought by the executor. Both the Death Act and the survival statutes are treated in Vol. 25 (Automobile Law and Practice), e.g., §§ 1447, 1449, but there is no discussion of the New Jersey common law background.


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