On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. The opinion of the court was delivered by O'Hern, J.
We granted this appeal to consider whether an action for libel survives the death of the defamed party. We agree with the two lower courts that the action survives and affirm.
On Sunday, October 21, 1979, the New York Daily News published an article written by its reporter David Hardy, entitled "Report corruption in housing agency." The article reported that reputed "mob-connected contractors," working in collusion with political leaders, "ripped off" millions in state housing funds. The article identified Alvin Raphael and James Canino as two such contractors.
On October 16, 1980, Raphael and Canino filed their complaint against the News and Hardy, disputing the article's statement that they were "linked by authorities" to a certain New Jersey-based crime family. They sought damages, claiming that their reputations and businesses were injured and that they had suffered humiliation and emotional distress. Defendants answered that the publication was privileged under the constitutions and laws of both New Jersey and New York, as well as under the First and Fourteenth Amendments of the United States Constitution. They pleaded truth and fair comment along with other defenses.
On January 5, 1981, Raphael died. In December 1981, Raphael's widow and executrix, Kathleen Raphael, was substituted as a party plaintiff. She filed an amended complaint in a representative capacity, seeking damages for the injury to the decedent. Kathleen Raphael asserted no individual claims.
Defendants moved in March 1982 to dismiss the amended complaint, relying primarily on the case of Alpaugh v. Conkling, 88 N.J.L. 64 (Sup.Ct.1915), which held that defamation actions were a personal right and abated at defendant's death. On May 7, 1982, the trial court denied the motion to dismiss. The court found more persuasive the decision in Weller v. Home News Pub. Co., 112 N.J. Super. 502 (Law Div.1970), in which Judge Furman allowed a libel action to survive plaintiff's
death. The court in this case interpreted N.J.S.A. 2A:15-3, which allows the survival of a "trespass done to the person or property," to embrace an action for defamation. The Appellate Division in an unreported opinion affirmed the trial court on the basis of its oral opinion, adding: "We also note with approval, Judge Sarokin's opinion in MacDonald v. Time, Inc., et al., 554 F. Supp. 1053 (D.N.J.1983)." We granted defendants' motions for leave to appeal. 95 N.J. 178 (1983).
The MacDonald case dealt with a similar claim. MacDonald had been a member of the New Jersey Casino Control Commission. The publication linked him with "Mob influence." He, too, died before trial. Defendant moved to dismiss on the ground that the cause of action abated upon his death. The District Court denied the motion:
But if the plaintiff had a valid cause of action here, there is no just reason why it should not survive his death. To say that a man's defamed reputation dies with him is to ignore the realities of life and the bleak legacy which he leaves behind.
There is no valid reason which should deny the family of Kenneth MacDonald the right to clear his name and seek compensation for its destruction. Why should a claim for a damaged leg survive one's death, where a claim for a damaged name does not. After death, the leg cannot be healed, but the reputation can. [ MacDonald, 554 F. Supp. at 1054 (footnote omitted).]
In exercising its diversity jurisdiction, the court carefully reviewed New Jersey precedent to aid it in discerning what the state's highest court would do if presented with the issue. It concluded, as we do now, that the Weller decision represents the correct interpretation of the survival ...