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Farrell v. Votator Division of Chemetron Corp.

Decided: January 22, 1973.

JOSEPH N. FARRELL AND EDITH FARRELL, PLAINTIFFS-RESPONDENTS,
v.
VOTATOR DIVISION OF CHEMETRON CORPORATION, A CORPORATION WITH OFFICES LOCATED IN LOUISVILLE, KENTUCKY, DEFENDANT-APPELLANT



For affirmance -- Justices Jacobs, Hall and Mountain and Judges Conford and Sullivan. For reversal -- None. The opinion of the Court was delivered by Jacobs, J.

Jacobs

The Appellate Division reversed the Law Division's dismissal of the plaintiffs' complaint against the defendant Votator Division of Chemetron Corporation. We granted certification on Votator's application. 60 N.J. 465 (1972.)

In May 1967 the plaintiff Joseph Farrell was employed by Standard Brands, Inc. at its plant in Pennsauken. While cleaning a machine at the plant, his pant leg was caught on the exposed teeth of an axle-like shaft and he suffered consequential injuries. He duly received compensation benefits from his employer but not until April 1969 did he retain counsel. On April 18, 1969 his counsel filed a complaint against the defendant Reliance Electric & Engineering Company, along with the defendant Reeves Pulley Company, a division of Reliance, and against the defendant "John Doe and/or John Doe, Inc.," who was alleged to be the assembler, supplier or seller of the machine which caused the injuries. The John Doe appellation was stated to be fictitious, the real name being then unknown to the plaintiff. The complaint alleged that the machine was not equipped with a suitable guard (Bexiga v. Havir Manufacturing Corp., 60 N.J. 402 (1972); Finnegan v. Havir Manufacturing Corp., 60 N.J. 413 (1972)), that the injuries suffered by the plaintiff Joseph Farrell were the result of the negligence of the defendants, that the defendants were responsible not only because of their negligence but also under strict liability principles, and that Joseph, along with his wife Edith who sought damages for loss of consortium (Ekalo v. Constructive Serv. Corp. of America, 46 N.J. 82 (1965)), were entitled to compensatory damages from each of the defendants.

In the course of taking depositions, counsel for the plaintiffs learned for the first time on February 26, 1970 that the name of the defendant Chemetron Corporation appeared on the base of the machine which had caused the injuries; and there was testimony at that time that the name plate data on the base indicated that the machine had been built by

the Votator Division of Chemetron Corporation, Louisville, Kentucky. As soon as counsel learned of Chemetron's identity he applied to amend the complaint to change the name of "John Doe and/or John Doe, Inc." to Votator Division of Chemetron Corporation. On March 17, 1970 the Law Division entered an order for the amendment of the complaint and thereafter the amended complaint was served on Votator. In due course the defendant Reliance moved for summary judgment and the motion was granted. This was affirmed by the Appellate Division in an unreported per curiam, and since the plaintiffs have not at any point or in any manner sought further review of this summary judgment we need not concern ourselves with the claim originally asserted by the plaintiffs against Reliance and its division Reeves.

Under date of June 19, 1970 Votator moved to set aside the order amending the complaint on the stated ground that it violated the statute of limitations. On October 19, 1970 the Law Division, being of the opinion that the plaintiffs' claim against Votator had been barred by limitations, dismissed it with prejudice. This was reversed in the Appellate Division's per curiam which pointed out that "the amendment to the complaint substituting Votator Division of Chemetron Corporation for John Doe related back to the original complaint which was filed before the expiration of the statute of limitations" (R. 4:9-3); accordingly, it remanded the matter to the Law Division for further proceedings in accordance with the Rules of Court. In its petition for certification Votator urged that the Appellate Division erred in its holding that the amendment related back to the date of the original complaint and it cited several New Jersey Supreme and Superior Court opinions, none of which, however, dealt with or bore upon the effectiveness of the filing of a John Doe complaint in tolling the statute of limitations. See Comment, "Unknown Parties: The John Doe Defendant," 1970 Law and the Social Order 256-68; Note, "Designation of Defendants by Fictitious Names -- Use of John Doe Complaints," 46 Iowa L. Rev. 773-785 (1961); Comment,

"Suing Parties Defendant by Fictitious Names," 22 Calif. L. Rev. 685-695 (1934).

Statutes of limitations are designed to stimulate litigants to pursue their causes of action diligently and "to spare the courts from litigation of stale claims." Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S. Ct. 1137, 1142, 89 L. Ed. 1628, 1635 (1945). They penalize dilatoriness and serve as measures of repose. Wood v. Carpenter, 101 U.S. 135, 139, 25 L. Ed. 807, 808 (1879). When a plaintiff knows or has reason to know that he has a cause of action against an identifiable defendant and voluntarily sleeps on his rights so long as to permit the customary period of limitations to expire, the pertinent considerations of individual justice as well as the broader considerations of repose, coincide to bar his action. Where, however, the plaintiff does not know or have reason to know that he has a cause of action against an identifiable defendant until after the normal period of limitations has expired, the considerations of individual justice and the considerations of repose are in conflict and other factors may fairly be brought into play. See Fernandi v. Strully, 35 N.J. 434, 438 (1961); cf. Rosenau v. City of New Brunswick and Gamon Meter Co., 51 N.J. 130, 139-140 (1968); New Market Poultry Farms, Inc. v. Fellows, et al., 51 N.J. 419, 422-426 (1968); Diamond v. New Jersey Bell Telephone Co., et al., 51 N.J. 594, 597 (1968); Lawlor v. Cloverleaf Memorial Park, Inc., 56 N.J. 326, 339 (1970); Rosenberg v. Town of North Bergen, 61 N.J. 190, 195 (1972).

In Strully a foreign object was left in the patient's body during the course of an operation; the patient did not bring her action within the normal period of limitations but did bring it expeditiously after she first knew or had reason to know that she had cause for action. After reviewing all of the pertinent factors we determined that, on balance, the considerations of individual justice far outweighed the considerations of repose (35 N.J. at 449-451); accordingly, we held that she was not barred by limitations, applying the

so-called discovery principle" which has since been applied by us in varying situations (New Market, supra, 51 N.J. 419; Diamond, supra, 51 N.J. 594) and has been receiving ever increasing support elsewhere. See Rosenau v. City of New Brunswick and Gamon Meter Co., supra, 51 N.J. at 139. In the case at hand the plaintiffs knew they had cause for action against the manufacturer or assembler of the machine but did not know his true identity. They in good faith instituted their action against the manufacturer or assembler within the normal period of limitations, naming him under the fictitious name John Doe, describing him as best they then could, and later identifying him by an amendment to their complaint as soon as they, acting with reasonable diligence, ascertained his identity. Such John Doe practice has received approval in many states (46 Iowa L. Rev. 773); in some it has the explicit support of statute (46 Iowa L. Rev. at 776 n. 15); in others it has the support of settled practice without statute (46 Iowa L. Rev. at 776 n. 16); and in our own State there have been early statutes and recent Court Rules dealing specifically with the designation of defendants under "fictitious names." See Harris, Pleading and ...


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