Lawrence v. Bauer Pub. and Printing Ltd.

• Decision Date: 23 November 1977
• Parties: Alonzo W. LAWRENCE and James Simpson, Plaintiffs-Appellants, v. BAUER PUBLISHING & PRINTING LTD., a corporation, Kurt Christopher Bauer,Jeffrey Lance Bauer and Patsy Bontempo, Defendants, and Joseph Hartnett, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 271

154 N.J.Super. 271

381 A.2d 358

Alonzo W. LAWRENCE and James Simpson, Plaintiffs-Appellants, v. BAUER PUBLISHING & PRINTING LTD., a corporation, Kurt Christopher Bauer,Jeffrey Lance Bauer and Patsy Bontempo, Defendants and Joseph Hartnett, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Submitted June 13, 1977.

Decided Nov. 23, 1977.

William & Flynn, Westfield, for plaintiffs-appellants (Harry Green, Freehold, of counsel; James B. Flynn, Westfield, on the brief).

Alan J. Karcher, Sayreville, for defendant-respondent.

Before Judges FRITZ, ARD and PRESSLER.

The opinion of the court was delivered by

FRITZ, P. J. A. D.

This is an appeal ¹ by plaintiffs from an adverse determination by way of summary judgment against them in a libel action. Most of the significant facts appear in the published opinion of the trial judge and we will not restate them. 143 N.J.Super. 387, 363 A.2d 357 (Law Div.1976). We would add only that which we believe to be of substantial import and not the subject of comment in the opinion below: there is evidence which, if credited, might be found to demonstrate that the reluctance of deposed defendants to furnish the name of the "reliable and informed source" was produced by the specific request of Joseph Hartnett that he not "be revealed as the source." In this respect we observe that a court order was necessary to compel the ultimate identification of Hartnett as the "reliable and informed source."

We do not quarrel with the determination of the trial judge that Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 299 A.2d 394 (1973), and R. 4:26-4 appear to control to defeat plaintiffs' argument that the statute of limitations did not commence to run until they discovered the name of the source, theretofore known to be "a source in the administration," but unnamed. It is entirely true that recent trends with respect to statute of limitations questions have extended such limitations by imposing discovery conditions upon their assertion in order to promote justice and afford equity, e. g., Moran v. Napolitano, 71 N.J. 133, 363 A.2d 346 (1976); Fox v. Passaic General Hosp., 71 N.J. 122, 363 A.2d 341 (1976); Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973). Nonetheless, we are satisfied that our court of last resort has not yet abrogated the necessity for "John Doe" complaints where an ascribable defendant (and the cause of action against him, her or it) is known, although a precise name is not known. We concur generally with the trial judge that Farrell commands:

Our fictitious name practice requires that when a claimant is in a position to describe a defendant in terms of what he did or failed to do which gave rise to the claim, an action against that defendant must be commenced within the limitations period even though the claimant does not then know defendant's name. * * * (143 N.J.Super. at 391, 363 A.2d at 359.)

In such circumstance we may respectfully question the continuing soundness of the fictitious name practice and rhetorically inquire why the "discovery rule" of Moran, Fox and Lopez should not apply to names and actual identities as well as conditions, but we may not alter this rule of our court of last resort and we may not ignore it. In re Education Ass'n of Passaic, Inc., 117 N.J.Super. 255, 261, 284 A.2d 374 (App.Div.1971), certif. den. 60 N.J. 198, 287 A.2d 458 (1972).

Accordingly, we confirm the determination by the trial judge that the statute of limitations should be deemed to run from no later than April 17, 1975.

On the other hand, Farrell also makes it abundantly clear that limitation statutes are "subject to later judicial interpretation and application even though the interpretation and application have the effect of lengthening the defendant's jeopardy." 62 N.J. at 121, 299 A.2d at 399 (emphasis supplied). While the statute involved, N.J.S.A. 2A:14-3, is unmistakable in its limitation of the commencement of actions to a period "within 1 year next after the publication of the alleged libel or slander" (thereby answering, perhaps the rhetorical question asked above), we think its application in matters in the courts should be made subject to the same concepts of justice as those which prompted Justice Jacobs to suggest in Farrell that when "the considerations of individual justice and the considerations of repose are in conflict * * * other factors may fairly be brought into play." 62 N.J. at 115, 299 A.2d at 396. In our control of the proceedings in our courts toward the ends of the interests of justice, see Aruta v. Keller, 134 N.J.Super. 522, 342 A.2d 231 (App.Div.1975), we believe ourselves to be at liberty to restrict the statute to the purposes for which it was designed: repose for the benefit of the individual whose conduct has not cost him the privilege, and to bring other factors into play toward that end when considerations of individual justice require. There is no longer any doubt that a defendant may be estopped from pleading the statute of limitations if he is guilty of inequitable conduct. Barres v. Holt, Rinehart & Winston, Inc., 131 N.J.Super. 371, 390, 330 A.2d 38 (Law Div.1974), aff'd o. b.141 N.J.Super. 563, 359 A.2d 501 (App.Div.1976), aff'd o. b. 74 N.J. 461, 378 A.2d 1148 (1977).

So we hold that with the spoken word so boundless in its availability and so fraught with potential for harm in wrongful use one who speaks respecting another and then actively hides his identity should not enjoy the benefits of repose to the detriment of one who is harmed and who, though diligent, is in fact the victim of the intended concealment. We recognize that considerations of individual justice in such case may be clearly paramount to considerations of repose, and the equitable doctrine of estoppel should be available to promote justice. While not entirely analogous, State v. United States Steel Corp., 22 N.J. 341, 126 A.2d 168 (1956), is instructive:

* * * (S)tatutes of limitations are characteristically considered to be tools of repose. They require that alleged rights be timely asserted and thereby operate to prevent unjust claims. They obviate the difficulties in defending actions against such claims. Death or removal of witnesses, factual obscurity from lapse of time, loss of supporting records are the common handicaps. Tortorello v. Reinfeld, 6 N.J. 58, 67, 77 A.2d 240 (1950); State, by Parsons v. Standard Oil Co., supra, 5 N.J. 281 at page 295, 74 A.2d 565; 53 C.J.S. Limitations of Actions § 1, pp. 902-903; Callahan, "Statutes of Limitations Background," 16 Ohio St.L.J. 130, 133 (1955). (The period of limitation is often geared to the perishable nature of the proof which normally accompanies a particular claim.) Where, however, the bar is used primarily as a sword rather than a shield and by one who has been responsible to disclose the actionable essentials in the face of a duty to speak, factors of vicarious enrichment become a dominant consideration which we are prone to remedy in equity and good conscience. Cf. Carrier v. Chicago, R. I. & P. Ry. Co., 79 Iowa 80, 44 N.W. 203 (Sup.Ct.1890); Twining v. Thompson, 68 Cal.App.2d 104, 156 P.2d 29 (Ct.App.1945). (At 358-359, 126 A.2d at 177-178.)

Such a rule involves the identification, evaluation and weighing of equities, and its application may depend upon such considerations, among others, as diligence, good faith, and intentional concealment. For all the reasons set forth in Lopez, supra, 62 N.J. at 274-276, 300 A.2d 563, we think this can better be done by a judge than a jury, and that the determination as to whether this estoppel be invoked should be made by a judge.

Accordingly, we reverse the summary judgment entered below and remand for further proceedings consistent with this opinion. We do not retain jurisdiction. No costs.

ARD, J. A. D. (dissenting).

I must respectfully dissent from the opinion of my colleagues. The facts of this case do not warrant the invocation of the doctrine of equitable estoppel. Moreover, I find no basis or need to judicially interpret the language of the statute in question. I believe plaintiffs' cause of action against Joseph Hartnett is barred by the statute of limitations. N.J.S.A. 2A:14-3.

The majority supports its reversal of the trial court by blending two theories which have no application to the facts of this case. It is suggested that the facts of this case warrant the invocation of the equitable doctrine of estoppel and that Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 121, 299 A.2d 394, 399 (1973), "makes it abundantly clear that limitation statutes are 'subject to later judicial interpretation and application even though the interpretation and application have the effect of lengthening the defendant's jeopardy.' "

Unlike the statute of limitations which governs negligence actions, I do not believe the language of the one-year statute which limits libel or slander actions is subject to judicial interpretation. The distinction between the statutes becomes obvious upon a comparison of the language. In N.J.S.A. 2A:14-3 (libel and slander statute), the language is as follows:

Every action at law for libel or slander shall be commenced within 1 year next after the publication of the alleged libel or slander. (Emphasis supplied)

The statute begins to run on "publication." The language is precise and definite. Justice Schreiber defined "publication" in his dissenting opinion in Barres v. Holt, Rinehart and Winston, Inc. 74 N.J. 461, 378 A.2d 1148 (1977). The case dealt with the application of the "single publication rule" as it relates to N.J.S.A. 2A:14-3; however, the language is pertinent to the court's authority to judicially interpret the legislative intent.

* * * "Publication" is a word of art and refers to the distribution of written material or the transmittal of the spoken word to a third person. There can be no doubt that when the Legislature enacted the libel statute of limitations...