Whalen v. YoungWhalen v. Young
The motions will be considered in their order, the first being that of Helm and L. & H. Transportation, Inc. for summary judgment on the administrator‘s amended complaint.
Now as to the second count. This is based on decedent‘s alleged pain and suffering and on the alleged expenditure for medical care in an effort to bring about decedent‘s recovery. The motion for summary judgment on the second count of the amended complaint is predicated on the seventh defense of the answer, which pleads the statute of limitations.
“All actions for injuries to the person caused by the wrongful act, neglect or default of any person or persons, firm or firms,
individual or individuals, corporation or corporations within this state shall be commenced within two years next after the cause of any such action shall have accrued, and not thereafter.”
(The present
“If any person against whom there is or may be a cause of action specified in sections 2:24-1, 2:24-2, 2:24-3, 2:24-5, 2:24-6, 2:24-16 or 2:24-17 of this Title is not a resident of this State when such cause of action accrues, or removes from this State after the accrual thereof and before the expiration of the times limited in said sections, or if any corporation not organized under the laws of this State, against whom there is or may be such a cause of action, is not represented in this State by any person or officer upon whom summons or other original process may be served, when such cause of action accrues or at any time before the expiration of the times so limited, the time or times during which such person is not residing within this State or such corporation is not so represented within this State shall not be computed as part of the periods of time within which such actions are required to be commenced by said sections; and the person entitled to any such action may commence the same after the accrual of the cause therefor, within the periods of time limited therefor by said sections, exclusive of such time or times of non-residence or non-representation.”
The present statute,
Another statute pertinent to our problem is
“Any chauffeur, operator or owner of any motor vehicle, not licensed as required by the provisions of article two of chapter three of this Title (
Sec. 39:3-3, et seq. ), who shall accept the privilege extended by law to nonresident chauffeurs, operators and owners of driving such a motor vehicle or of having the same driven or operated in this State without a New Jersey registration or license, shall by the acceptance and the operation of such motor vehicle within the State, make and constitute the Director of the Division of Motor Vehicles in the Department of Law and Public Safety, his or their agent for the acceptance of process in anycivil action or proceeding, issuing out of any district court, county court, or other court of civil jurisdiction, against such chauffeur, operator or the owner of such motor vehicle arising out of or by reason of any accident or collision occurring within this State in which a motor vehicle operated by such chauffeur or operator or such owner is involved. The acceptance of such privilege or the operation of such motor vehicle shall be the signification of such chauffeur or operator or such owner of his or their agreement that any such process against him or them which is so served shall be of the same legal force and validity as if served upon him or them personally.” (L. 1949, c. 190, p. 635, sec. I.).
The moving defendants argue that their non-resident status has not prevented the running of the limitational period because process in plaintiffs’ cause against them could at all times have been effectively served upon the official designated for the purpose in
The law that imposes limitations of time upon the right to sue for the redress of injuries, and conversely upon the liability to suits for such redress, involves matter of real substance. And such limitations are not to be thought of as in any way expanded or contracted by implications derivable ex arguendo from the language of statutes. In designating
“It must be borne in mind that the provision as to the tolling of the statute is primarily for the benefit of the residents of this state and it does not effect the cause of action but only effects the right to prosecute the action in this state.”
In Eckert v. New Jersey State Highway Dept., 1 N.J. 474, 479 (1949), the court declares:
“It is elementary that the intent of the Legislature is to be gleaned from the language of the statute and that courts cannot arbitrarily expand the scope of a statute beyond the plainly expressed Legislative intent.”
And
“* * * where the wording of the statute * * * is explicit and clear, the court is not free to indulge in a presumption, arising from extrinsic evidence, that the Legislature intended something other than what it actually expressed. Excepting where uncertainty or ambiguity appears, the enactment must speak for itself and be construed according to its own terms.”
Bass v. Allen Home Improvement Co., 8 N.J. 219, 226 (1951). In Hoffman v. Hock, 8 N.J. 397, 409 (1952), the Supreme Court reaffirms the familiar rule:
“We are enjoined to interpret and enforce the legislative will as written, and not according to some supposed unexpressed intention.”
In Glick v. Trustees of Free Public Library, 2 N.J. 579, 584 (1949), the court said:
“The statute itself furnishes the best means of its own exposition; and the legislative purpose here is evident when the whole of the provision is related to the obvious policy and purpose. The intent is the essence and the life of the law.”
See also Donohue v. Campbell, 98 N.J.L. 755 (E. & A. 1923).
This brings us to the second motion. Decedent‘s parents move to be added as individual plaintiffs, and for leave to amend the complaint so as to include the proposed third and fourth counts, respectively for reimbursement of money outlay and other expenditures necessitated by the effort to bring about recovery from his injuries, and for funeral expenses; and for loss of services. The defendants contend that the causes of action thus set forth are covered by the two-year limitational period. We are asked to depart from the decision in Wagner v. Machetto, 7 N.J. Super. 547 (Law Div. 1950), in which it is held that actions like those pleaded in the counts in question are not within the two-year period of limitations relating to injuries to the person (
The third motion is that of defendants Helm and L. & H. Transportation. Inc., to dismiss the cross-claim of defendant Young filed under the complaint in the main suit, as amended January 26, 1953. One of the grounds is that the cross-claim is “identical with and involves the same parties” as the third-party complaint that was dismissed by the court‘s order of August 12, 1952, following argument on the merits, as it is urged, and no appeal having been taken from the dismissal. The grounds stated in the notice of motion to dismiss the former third-party complaint are:
“A. It does not disclose that it is filed pursuant to order of the Court as required by Rule 3:14-1;
B. That there is no identity or relation between the plaintiff‘s claim against the defendant and the defendant‘s claim in the third party complaint, and the third party complaint is premature.”
The cross-claimant does not deny that the parties and the causes in both claims are identical. His argument is that
“* * * Unless the court in its order for dismissal otherwise specifies, a dismissal under Rule 4:42-2 (b) and any dismissal not provided for in Rule 4:42 other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits. * * *”
Counsel for the third-party plaintiff does not contend that the former dismissal was had under R.R. 4:42 nor that it was for lack of jurisdiction. He relies on Hogan v. Hodge, 6 N.J. Super. 55 (App. Div. 1949). That case has no precedent value that I can see. In it there was a complex of rights and equities relating in part to the limitational provisions of an insurance policy. The order for dismissal of the first claim, this having been without prejudice, was actually filed on the day after the period of such limitation had expired so that, as the Appellate Division stated, “The practical effect of the dismissal order * * * was to bar any adjudication on the merits of the claim against the Insurance Company under the policies issued by it,” 6 N.J. Super. at page 58. The court declared that the claim under the circumstances should not have been dismissed, but severed. Examination of the opinion shows that the decision in Hogan v. Hodge, supra, is plainly distinguishable from the case here. It was in no way concerned with the application or construction of R.R. 4:42-2. It should be noted also that defendant Young, as third-party plaintiff, regardless of what may be said of his right to appeal from the dismissal of his
The direst aspect of this matter is urged in the cross-claimant‘s contention that what the third party defendants ask is, in effect, that the court make the dismissal of the former third-party complaint res judicata, adding that the dismissal cannot thus become a bar to a subsequent cross-claim without becoming equally a bar to a subsequent suit. The truth of this is, of course, obvious. But the cross-claimant‘s theory that the dismissal might have been ordered for any reason appearing sufficient to the court operates both ways. It admits the contrary hypothesis of dismissal for failure to state a cause of action, in which case, unless the dismissal were reversed, the cross-claim would be forever barred. Nevertheless, rules are to be observed not for their own sakes, but to serve the end in view; and I think it is not to be ignored that the grounds stated in the former dismissal notice were as set forth above. The first ground bears no relation to the merits, and the second ground stated, in effect, that the claim should not be incorporated in the present litigation but should be separately sued upon. In neither ground was there anything to warrant the third party defendants in asking an absolute bar to the claim. To deal with the matter now as working such a bar would, I think, be so drastic as to violate the true intendment of the rule (R.R. 4:42-2). I have decided, however, that the rule should have partial application, that is to the extent that it excludes the cross-claim from the present suit. It will not
The third-party defendants raise the additional point under this motion that service upon the Director of the Division of Motor Vehicles under
“* * * Justice Burling, while a judge of the Circuit Court, held that where a notice of motion to dismiss for lack of jurisdiction was coupled with a motion to strike out the affidavits filed, or in other words to strike out the whole proceeding, that such a motion was equivalent to a general appearance, the effect of which was to waive all objections to the jurisdiction of the court over the person of the defendant.”
The grounds of the present motion to strike include one that is addressed to the jurisdiction (par. 1, e.) as well as one based on alleged identity between the present cross-claim and the third-party complaint previously dismissed (par. 1, a.). Success of the motion on the latter ground would mean, of course, a striking of the cross-claim in toto. It is my opinion that this renders the motion equivalent to a general appearance under the cross-claim. The Supreme Court points out in Trautman v. Higbie, supra, 10 N.J. at page 243, that “Rule 3:4-6 provides that a general appearance shall have the same effect as if the defendant had been served by the sheriff.” The third-party defendants cannot prevail on this point.
Finally, it is argued that the cross-claim should be dismissed “for failure to state a claim upon which relief can be granted.” The grounds of the motion to strike, as set forth in the notice, are numerous, in addition to which the
The fourth and last motion before us deals with the amendment of the cross-claim. There would appear to be some doubt as to the status of this amended pleading as properly in the case. The contention for it is that it was filed as of right under the former Rule 3:15-1 (now R.R. 4:15-1). I have concluded to regard the amended cross-claim and the motion addressed to it as before me for decision. The motion rests upon two grounds. We are concerned only with the first, the second having been already considered upon the motion against the original cross-claim. The first ground is: “Said proposed amended cross-claim was served and filed subsequent to the service of a responsive pleading and pending a motion addressed to the original cross-claim and without the authority of the Court as required by Rule 3:15-1.” The cited rule provides that a party “may amend his pleading as a matter of course at any time before a responsive pleading is served * * *.” The defendant Young argues that no pleading responsive to the first cross-claim had been served, this being met by the contention that the motion to strike the first cross-claim constituted a responsive pleading. In view of a further provision of the rule the matter would appear to be academic. This provision is: “Otherwise a party may amend his pleading only by leave of court * * * and leave shall be freely given when justice so requires.” If for no other reason than the severance of the cross-claim, its amendment at this time should be allowed. That is my decision.
The motion to dismiss the amended cross-claim is denied. The claim as amended will be severed and ordered to trial separately.