Defendants move for summary judgment (R. 4:46). The complaint filed December 3, 1968 and the pretrial order entered September 12, 1969 allege libel of Mrs. Weller, who died on August 19, 1970, and of her daughter and son-in-law, Mr. and Mrs. Semple, and invasion of Mrs. Weller's right of privacy. The facts, which are substantially undisputed, are unusual.
Mrs. Weller in 1967 was a paying patient in defendant hospital suffering from a heart affliction. Defendant Murray as its public relations director prepared a series of three articles dealing with charity patient care. Defendant newspaper published these articles. The second had as its central figure Prudence "Grandmom" Pickett, a charity patient not eligible for Medicare, cheerful, unselfish and destitute. "Grandmom" Pickett was fictitious, although the article, which was published on Sunday, December 10, 1967, did not so state. The accompanying photograph, captioned
"Grandmom" Pickett, was that of Mrs. Weller in a walker in profile view.
A release entitled "Photographic Consent" is alleged but not relied upon by defendants on this motion. Plaintiffs deny such consent.
As to Mrs. Weller's causes of action for libel and invasion of privacy, defendants urge their abatement upon her death during the pendency of the litigation. The authority cited is Alpaugh v. Conkling , 88 N.J.L. 64 (Sup. Ct. 1915), which held that the survival statute (now N.J.S.A. 2A:15-4) did not apply to a cause of action for slander by the decedent, who died during the pendency of the litigation. Justice Parker stated broadly (at 67) that "the conclusion that the Legislature did not intend that libel or slander, considered purely as injurious to the feelings and reputation and apart from special damage, should survive to the personal representative."
Alpaugh has been cited as the law of New Jersey in the Federal District Courts for New Jersey and for the Southern District of New York. Palmisano v. News Syndicate Co. , 130 F. Supp. 17 (S.D.N.Y. 1955); Patrick v. Esso Standard Oil Co. , 156 F. Supp. 336 (D.N.J. 1957).
The former Supreme Court in Alpaugh construed the words "trespass done to the person or property" as encompassing torts generally (Ten Eyck v. Runk , 31 N.J.L. 428, 431 (Sup. Ct. 1866)) but only if involving physical injuries or, possibly, special damage claims. The present case parallels Alpaugh in that general damages, not special damages, are sought.
The holding in Alpaugh is by a court of like jurisdiction at nisi prius and need not be followed. Wolf v. Home Insurance Co. , 100 N.J. Super. 27, 35 (Law Div. 1968), aff'd 103 N.J. Super. 357 (App. Div. 1968); 20 Am. Jur. 2d, Courts , § 201 (1965). The result is repressive and out of keeping with the preferable trend outside New Jersey. Emmanuel v. Bovino , 26 Conn. Sup. 356, 223 A.2d 541 (Conn. Super. Ct. 1966); Brown v. Mack , 185 Misc. 368, 56 N.Y.S.
2d 910, 914-915 (Sup. Ct. 1945); Prosser, Law of Torts (3 ed. 1964), at 923; Note, "Inadequacies of English and State Survival Legislation," 48 Harv. L. Rev. 1008 (1935); Evans, "A Comparative Study of the Statutory Survival of Tort Claims For and ...