On motion to dismiss the complaint.
Hartshorne, J.c.c. (temporarily assigned).
This cause arises on motion to dismiss the above action, upon affidavits and transcript of proceedings at the previous trial at which a mistrial was declared.
The complaint is in two counts, the first for an assault and battery upon plaintiff by defendant, the alleged facts amounting to criminal rape. The second count, as stated in the pretrial, is based on the allegation that "The defendant has refused to perform his agreement" to compensate the plaintiff woman for the "expenses connected with the birth of the child" resulting from such intercourse, and to contribute to the support of the child." The bases of the motion differ as to each count.
The motion as to the first count is based upon the claim that the plaintiff woman had no right to sue the man who raped her for damages, until after she had instituted criminal proceedings against the man for such rape. In support of this somewhat esoteric doctrine, counsel cites McBlain v. Edgar , 65 N.J.L. 634 (E. & A. 1901); Leeman v. Public Service ,
77 N.J.L. 420 (Sup. Ct. 1909); Vineland v. Maretti , 93 N.J. Eq. 513 (Ch. 1922). These decisions, in alluding to the above rule as previously in effect in England, point out that it is an anachronism in present-day New Jersey, being "founded upon a reason which does not exist with us, and, therefore, should not be followed," and alluding to the fact that it has either been "repudiated" or "abolished * * * by statute," in most of the states where the question has arisen. McBlain v. Edgar, supra, p. 636; 1 C.J.S., Actions, sec. 11, page 994. Indeed, in the Leeman case, after rediscussing the matter, the court says: "as a matter of fact, this doctrine can have no application to our system of government and in practice it does not exist here, nor, as we have above seen, is there necessity for it on the ground of public policy."
However, after these strong animadversions against the policy of this ancient English rule, enacted at a time when, and because, the goods of the felon were forfeited to the Crown, so that an action for damages against him would be useless, these decisions apparently do indicate the rule to have been in effect here some half-century ago, at least to a limited extent. Since this court is, of course, bound to follow the decisions of the appellate courts, regardless of its own viewpoint, we turn to the ascertainment, and applicability to the cause at bar, of the limited rule, as applied in the above cases.
The McBlain case, like the case at bar, was founded upon allegations which would have constituted criminal rape. The court held, not as in the English rule, that the civil cause could not be instituted before the criminal proceedings were instituted, but "that the party may institute the proceedings for damages as promptly as he chooses, only he must not bring on the trial in advance of his public duty," approving the language of Bishop on Criminal Law. Further, the court stated: "The duty of a private person in this state ceases when he has made his complaint and appeared before the grand jury and secured, or failed to secure, an indictment." In the Leeman case, the court concluded: "The failure
to prosecute criminally could be urged merely for delaying the trial until the public duty had been fulfilled, not for a judgment of nonsuit." Since, in the Leeman case, the court discussed for the first time the point that this anachronistic doctrine at all events applied only to common law felonies, plaintiff in the case at bar claims that rape was not a common-law felony. But, as to this, the serious character of the crime of rape is self-evident, and rape was made a felony in England as far back as the time of Edward the Confessor, literally centuries before New Jersey inherited its common law from the mother country. 52 C.J., Rape, sec. 6 (d), p. 1007.
It is a fact that no criminal proceedings as to this rape were instituted by plaintiff woman, or the authorities, prior to the institution of the present suit. In fact, nothing whatever was heard of this alleged bar to the suit in the pleadings, at the pretrial, or at the original trial, until after plaintiff's opening, whereupon, for that and other reasons, a mistrial ensued. Promptly thereafter the plaintiff woman applied to the authorities to take a criminal complaint for rape against defendant. But, by that time, two years had elapsed from the time of the alleged rape, and the criminal court, therefore, refused to take the complaint. The defendant claims, that since the plaintiff woman failed to initiate these criminal proceedings till after they were barred by the statute, she is now estopped to allege her belated attempt to initiate same, as a compliance with her "public duty," which under the above rule must precede the trial of the civil suit.
But what are the facts in regard to this claim of estoppel? Surely if defendant to avoid surprise must, under the rules, specifically allege in his answer the bar of the statute of limitations, or the nonperformance of conditions precedent generally, he should have set up this little known bar, arising from the nonperformance of an alleged condition precedent, to bringing suit. Rule 3:8-3; 3:9-2. But this defendant failed to do. Had he done so, plaintiff would doubtless ...