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Germann v. Matriss
Citations: 250 A.2d 424; 104 N.J. Super. 466
Court: New Jersey Superior Court; February 12, 1969; New Jersey; State Appellate Court
In the case of Oscar Germann v. Joseph P. Matriss, the Superior Court of New Jersey, Appellate Division, reviewed a malpractice action concerning the death of Gerda Germann, allegedly due to a dentist's failure to properly sterilize an acrylic denture. The case involved three causes of action: a wrongful death claim by the plaintiff as administrator ad prosequendum, a survival action by the plaintiff as general administrator, and a per quod claim as the deceased's husband. The defendant raised contributory negligence, which was presented to the jury. The court's opinion found reversible error due to the trial court's failure to instruct the jury on the Dead Man's Act (N.J.S. 2A:81-2), which requires clear and convincing proof when a party asserts claims against a deceased's estate based on oral testimony. The trial court denied the plaintiff's exception, reasoning that the statute should not apply in a dual action context, arguing that the jury could not apply differing standards of proof to contributory negligence in the survival action versus the wrongful death action. The plaintiff argued that the defendant's negligence in sterilization led to decedent contracting tetanus, resulting in her death. The defendant claimed contributory negligence, stating he had instructed the decedent to keep the denture in place, yet she removed it shortly after the procedure. The appellate court recognized the lack of precedent regarding the application of the Dead Man's Act in negligence actions in representative capacities, but aligned with previous rulings that supported its applicability to such cases. The statute allows for the defense of contributory negligence to be asserted by a defendant in a negligence survival action initiated by a general administrator of a deceased. In this case, the defendant attempted to support this defense with oral testimony regarding the decedent's actions or statements. The defendant was required to demonstrate contributory negligence through "clear and convincing proof." In a previous case, Farago v. Sluke, it was established that the Dead Man's Act (N.J.S. 2A:81-2) did not apply to contributory negligence in wrongful death actions when the plaintiff was not acting in a representative capacity. The current issue concerns the applicability of N.J.S. 2A:81-2 in a joint trial where both a survival action by the general administrator and a wrongful death action by an administrator ad prosequendum are being heard, specifically regarding the differing standards of proof. The burden of proof of "clear and convincing" evidence is distinct from the lower "preponderance" standard, requiring a firm belief in the truth of the allegations. The Legislature recognized this difference when enacting N.J.S. 2A:81-2. The court found that the right to this higher standard of proof should not depend arbitrarily on whether the survival or wrongful death action is considered the more significant case in the trial. Therefore, N.J.S. 2A:81-2 applies to the contributory negligence defense in the survival action, necessitating that the jury be instructed to apply the "clear and convincing" standard. The defendant's argument that the jury would be confused by the differing standards was rejected, as juries are often tasked with complex legal principles. The court concluded that the jury should have been instructed accordingly and reversed the decision, remanding for a new trial.