to the person or property real or personal, of their testator or interestate * * *' within the meaning of N.J.S. 2A:15-3, N.J.S.A., so that it abated upon the death of plaintiff administratrix's intestate. Meyer v. Peter, Cir.Ct. Hudson Co. 1932, 9 N.J.Misc. 1309, 157 A. 250. I conclude, therefore, that the second count sounds in trespass vi et armis, and states a cause of action for false imprisonment for which remedy is not barred by the applicable two-year statute of limitations. N.J.S. 2A:14-2, N.J.S.A. It has, therefore, survived to the plaintiff administratrix by virtue of N.J.S. 2A:15-3, N.J.S.A., but not to the other plaintiffs, individually, falling as it does within the general rule that a tort committed against one person furnishes no cause of action in favor of another. 52 Am.Jur. (Torts) § 95. As such, it does not abate, as would a cause of action for libel or slander, upon the death of the injured party. See, Alpaugh v. Conkling, 1915, 88 N.J.L. 64, 95 A. 618; and Palmisano v. News Syndicate Co., Inc., D.C.N.Y. 1955, 130 F.Supp. 17.
The third count contains allegations supportable by evidence tending to show a malicious interference by defendant with decedent's right of employment, as was the case in Strollo v. Jersey Central Power & Light Co., N.J.Sup.Ct. Monmouth Co., 1942, 26 A.2d 559, 20 N.J.Misc. 217 (which cites and follows Van Horn v. Van Horn, 1890, 52 N.J.L. 284, 20 A. 485, and Brennan v. United Hatters, 1906, 73 N.J.L. 729, 65 A. 165). It must be considered, therefore, as stating an action on the case and not an action for words. The critical question is whether the alleged unlawful interference involves a property right which survives to the administratrix under N.J.S. 2A: 15-3, N.J.S.A., for the third count does not state a claim for which relief may be granted to the plaintiffs individually. Souvay v. Fricke, Cir.Ct. Hudson Co. 1933, 11 N.J.Misc. 882, 169 A. 33; Meyer v. Peter, supra. The right to pursue one's business, calling or occupation and to earn a livelihood free from undue interference or molestation is a property right and, therefore, unlawful interference with the exercise thereof gives rise to a claim which does not abate. U.S.Const. Amends. 5, 14; N.J.Const. Art, 1, par. 1; Lane Distributors, Inc., v. Tilton, 1951, 7 N.J. 349, 81 A.2d 786; Newark Hardware & Plumbing Co. v. Stove Mfrs. Corp., 1948, 136 N.J.L. 401, 56 A.2d 605, affirmed E. & A. 1948, 137 N.J.L. 612, 61 A.2d 240; Carroll v. Local No. 269, etc., Electrical Workers, 1943, 133 N.J.Eq. 144, 31 A.2d 223; Kamm, Inc., v. Flink, 1934, 113 N.J.L. 582, 175 A. 62; Van Horn v. Van Horn, supra. Being, as it is, an action on the case, for the interference with a property right, the exercise of which was allegedly unlawfully interfered with by defendant by use of false and malicious statements defaming decedent and injuring his feelings and reputation, the claim stated in the third count survived the death of plaintiffs' intestate. It may be asserted by the administratrix as a claim alleging a 'tortious injury to the rights of another.' N.J.S. 2A:14-1, N.J.S.A. In so holding, I am mindful that one of the reasons for sustaining a right of action to a living plaintiff in such circumstances was based upon the right of the individual to control his own affairs, free from unlawful molestation. What would result from a contrary holding is well expressed in Barr v. Essex Trades Council, 1894, 53 N.J.Eq. 101, at pages 113-114, 30 A. 881, at page 885, as follows:
'* * * freedom of business action lies at the foundation of all commercial and industrial enterprise -- men are willing to embark capital, time, and experience therein, because they can confidently assume that they will be able to control their affairs according to their own ideas, when the same are not in conflict with law. If this privilege is denied them, if the courts cannot protect them from interference by those who are not interested with them, if the management of business is to be taken from the owner and assumed by, it may be, irresponsible strangers, then we will have come to the time when capital will seek other than industrial channels for investments, when enterprise and development will be crippled, when interstate railroads, canals, and means of transportation will become dependent on the paternalism of the national government, and the factory and the workshop subject to the uncertain chances of co-operative systems.'
In view of the conclusions hereinbefore set forth, the fourth count of the complaint, which apparently seeks damages in behalf of the individual plaintiffs, fails to set forth a cause of action which either accrued to those plaintiffs directly or devolved upon them by virtue of their relationship to the decedent, irrespective of any loss which may have been suffered by these individual plaintiffs as a consequence of the tort committed against the decedent.
I conclude, therefore, that as to counts one, two and three, which I have sustained on behalf of the plaintiff administratrix but dismissed as to the other plaintiffs individually, defendant may, of course, move for a more definite statement upon a proper showing under Rule 12(e) of the Federal Rules of Civil Procedure, and that remaining count four must be dismissed as to the administratrix as well as to all individual parties plaintiff.
With respect to plaintiffs' motion under Rule 34 of the Federal Rules of Civil Procedure for leave to permit the inspection and copying of certain documents embodying references concerning decedent, it must be denied, not only because plaintiffs have not shown good cause therefor, in that these alleged documents are not affirmatively shown to be in the defendant's possession, custody or control, but also because defendant has presented to this Court an affidavit, which is uncontradicted by plaintiffs by way of counter-affidavit or otherwise, to the effect that no inquiry concerning decedent was ever made by any potential employer of decedent, no communication was ever transmitted by defendant to any such potential employer and defendant has no communications or other writings concerning decedent here sought by plaintiffs. Stewart-Warner Corp. v. Staley, D.C.Pa.1945, 4 F.R.D. 333. Further, plaintiffs concede, by counsel's letter to this Court, that responsive to their inquiries, defendant has stated that it has no such statements in its possession or control. It is, therefore, unnecessary, in deciding the propriety of plaintiffs' motion, to determine whether such statements as might exist would be privileged. Plaintiffs' motion is denied.
An order may be submitted in conformity with this opinion.
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