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Dijkstra v. Westerink

Decided: May 9, 1979.

GERRIT J. DIJKSTRA AND MARIE DIJKSTRA, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
JAN WESTERINK, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Law Division, Morris County.

Lynch, Crane and Horn. The opinion of the court was delivered by Lynch, P.J.A.D. (retired, temporarily assigned).

Lynch

Gerrit J. Dijkstra*fn1 instituted an action against defendant Jan Westerink for libel and slander, malicious use and abuse of process and invasion of privacy. Dijkstra claimed that defendant falsely accused him, in a statement to the police, of being the assailant in an attempted shooting of defendant.

After defendant had reported to the authorities that he found a bullet hole in the wall of his garage, the police began an investigation. Defendant gave a statement to the police which named Dijkstra as an "enemy" and which implicated him in the alleged crime. After further investigation of Dijkstra the police issued a search warrant and executed it at plaintiff's home. Plaintiff alleges defendant initiated the police investigation which resulted in the search and caused Dijkstra and his wife to lose most of their friends.

At trial, plaintiff and his wife testified. Defendant's motion to dismiss the complaint at the end of plaintiff's case was granted. This appeal followed.

We affirm the dismissal of plaintiff's complaint, but we do so for reasons other than those given by the trial judge.

A

As to libel and slander.

In an oral opinion the trial judge gave these reasons for granting defendant's motion for involuntary dismissal: (1) defendant in his statement to the police did not name plaintiff as the assailant, but rather plaintiff's name was suggested by the police; (2) there was no evidence that the statement was false, and (3) defendant's statement to the police was absolutely privileged.

(1)

Identification of plaintiff in defendant's statement.

It is true that in the earlier part of his statement to the police defendant hesitated to name plaintiff as the one who shot at him. Later in the statement the police suggested the name of Dijkstra and defendant stated: "* * * that is the name I am thinking of * * *."

In any event the actual naming of plaintiff is not a necessary element in an action for libel. It is enough that there is such reference to him that those who read or hear the libel reasonably understand the plaintiff to be the person intended. Restatement, Torts 2d, § 564, Comment (a) (1977); Prosser, Law of Torts (4 ed. 1971), § 111 at 749 (hereafter cited as Prosser); see Gnapinsky v. Goldyn , 23 N.J. 243, 253 (1957); Mick v. American Dental Ass'n , 49 N.J. Super. 262, 286 (App. Div. 1958); Kilpatrick v. Edge , 85 N.J.L. 7 (Sup. Ct. 1913). See also, ...


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