of Rule 39, Professor Moore states, at pages 729-730, supra:
'Where the 'equitable' issue is in the nature of a defense, the courts quite generally and properly order that the 'equitable' issues be disposed of first. If the 'equitable' defense is found to be valid, the case will have been disposed of with minimum time and expense. If disposition of the 'equitable' claim or counterclaim would make it unnecessary to go into the 'legal' issues, then the equitable issues should be disposed of first.'
Implicit in this discussion of the triability of legal and equitable issues in the same action is the fact that the issues be related evidentially, and that no prejudice result to any of the parties in trying such issues at the same time. The cases which Professor Moore cites are illustrative of this point. Elkins v. Nobel, D.C.E.D.N.Y.1940, 1 F.R.D. 357; Munkacsy v. Warner Bros. Pictures, Inc., D.C.E.D.N.Y.1942, 2 F.R.D. 380.
The essence of the matter at hand is that the evidence to be offered in the basic suit -- the tort action founded on negligence -- is totally unrelated to be equitable issue of fraud. If this in itself does not suffice to sustain separate trials, the element of prejudice should remove all doubt.
Generally speaking, in New Jersey a jury in a negligence case is not permitted to be informed that a defendant is covered by insurance against liability for damage. Patterson v. Surpless, E. & A.1930, 107 N.J.L. 305, 151 A. 754; and see Haid v. Loderstedt, App.Div.1957, 45 N.J.Super. 547, 133 A.2d 655. To follow plaintiffs' prescription in this case would inevitably inject testimony concerning the fact that defendants are insured against liability for damages, a matter not only unrelated to the cause of action itself, but in which the defendants could not help but be prejudiced thereby.
In deciding which issue should be tried first, it is necessary to place the issues in their proper focus. To try the main issue of negligence before determining whether the action is barred by the statute of limitations would not be logical. This, too, is emphasized by Professor Moore, in his discussion of Rule 42(b), when he observes in Moore's Federal Practice, 2d Edition, Vol. 5, § 42.03, at page 1214:
'It may be desirable in many situations to hold a hearing in advance of the main trial on certain defenses, such as jurisdiction and venue, statute of limitations, statute of frauds, license and invalidity of a patent, as well as various other defenses. This is particularly true where the defense, if successful, would make it unnecessary to try other and more complicated issues, or would limit the issues as to which testimony should be given.' (Emphasis supplied.)
And see his discussion of cases in point under his footnote 9, also at page 1214, supra.
Finally, it might be observed that little, if any, delay will result from the ordering of a separate trial. As noted earlier, the complaint was filed on May 23, 1957. The issue of fraud relative to the statute of limitations will be placed on the nonjury calendar, presently contemplated to be reached in November, and there appears to be no reason why the jury trial, if there is to be one, should not be held within another month thereafter. This case therefore should be fully adjudicated before the expiration of about eight months from the date of its inception.
Defendants should submit an order in accordance with the foregoing, if plaintiffs consent as to form; otherwise, this order should be noticed for settlement on the next motion day, viz., November 4, 1957.