Fenning v. S. G. Holding Corp., A--512

Citation47 N.J.Super. 110,135 A.2d 346
Decision Date21 October 1957
Docket NumberNo. A--512,A--512
PartiesHerman A. FENNING, Plaintiff-Respondent, v. S. G. HOLDING CORP., a corporation, and Samuel Paris, Defendants-Appellants. . Appellate Division
CourtNew Jersey Superior Court – Appellate Division

Irving I. Rubin, Paterson, argued the cause for appellants.

Daniel G. Kasen, Newark, argued the cause for respondent (Kasen, Schnitzer & Kasen, Newark, attorneys).

Before Judges CLAPP, JAYNE and HUGHES.

The opinion of the court was delivered by

HUGHES, J.A.D.

A public emergency presented by the warborn shortage of housing, in the light of continuing economic pressures, was declared by our Legislature in 1950 (L.1950, c. 234, p. 582, repealed L.1953, c. 216, § 34, p. 1638, following N.J.S.A. 2A:42--13) in justification of the need for stand-by state rent control, to be operative in the event of removal of federal controls. The anticipated expiration of all such federal controls on July 31, 1953 led to the enactment of L.1953, c. 216, supra, continuing rent controls under certain conditions (N.J.S. 2A:42--41, N.J.S.A.), and they were further extended by L.1954, c. 260. The continuing concept of state rent control has weathered determined assaults upon its constitutional propriety (Jamouneau v. Harner, 16 N.J. 500, 109 A.2d 640 (1954); Brookchester, Inc., v. Ligham, 17 N.J. 460, 111 A.2d 737 (1955); Stuyvesant Town, Inc., v. Ligham, 17 N.J. 473, 111 A.2d 744 (1955); Addiss v. Logan Corp., 23 N.J. 142, 128 A.2d 462 (1957)) to and including the most recent extender (L.1956, c. 146; N.J.S. 2A:42--56 et seq., N.J.S.A.), adjudged constitutionally valid in the case of In re Freygang, 46 N.J.Super. 14, 133 A.2d 672 (App.Div.1957).

This active course of juridical dispute was but symptomatic of the psychological unrest of those whose property rights thus were subjected to the discipline of the common need and it was, undoubtedly, in this state of mind that was written the somewhat vituperative missive, the alleged publication of which was the basis for the litigation resulting in the Law Division judgment challenged by this appeal. Specifically, the corporate and individual defendants-appellants seek to overthrow verdicts returned against them by a jury, for nominal compensatory damages in the case of the corporation, and for $750 in punitive damages against the individual defendant, in an action in which plaintiff- respondent contended that by such publication he most cruelly had been defamed.

The events leading to the bruising and allegedly tortious comment upon the good name and fame of plaintiff-respondent were these:

The defendant-appellant, S. G. Holding Corp. (a closely held family corporation of which defendant-appellant Samuel Paris was president, in charge of its management and a major stockholder), had acquired, in July 1954, a large apartment house located in East Orange in Essex County, in an apartment in which plaintiff-respondent, Herman A. Fenning, resided. The rents being subject to control, the owner in May 1955 filed a well-documented application with the Essex County Rent Control Agency (N.J.S. 2A:42--23, N.J.S.A.) for an increase in the rentals of all apartments including that of Fenning. The tenants, of whom there were 130, were unenthusiastic about this proposal and some of them engaged legal counsel to make known their demurrant views to the agency. The attorney for the landlord in those proceedings requested particularization of the grounds for such objections to the increase petitioned for, and Fenning furnished to his attorney a letter which he had prepared and had intended to file directly, in protest of the landlord's request for the rent increase. This document comprised a detailed and critical analysis of the factors upon which the application for increase was based, and on its face cut very deeply into the merits of the landlord's claims. Its factual statements (although almost polite when contrasted with the picturesque language in the letter in suit) were such that the publication of this document was made the subject of a counterclaim in the action for damages for libel. Before pretrial conference, however, this counterclaim had been dismissed on motion for summary judgment, apparently on the basis that no actionable publication in law was attributable to Fenning, who had merely furnished it to his attorneys, who then filed it, Inter alia, in the proceeding thus pending before the agency. That such filing was compatible with that body's rules and practice is apparent by reference to the formula under which the agency provided for notice and adversary procedure relative to such rent increases:

'Rules and Regulations o Essex County Rent Control Agency

'Landlord's Application

'Essex County Rent Control Agency

'1028 Broad Street

'Newark 2, New Jersey

'Instructions to Landlord

'1. Put your entire story in the blank space on the reverse side of this form. Put in grounds and reasons. Attach any supporting documents.

'2. If application is for increase, state lawful rent and amount requested. And if it's a rooming house state the rents per day, week or month and the number of rooms and roomers.

'If for decrease in space, services, etc. state what you wish to be decreased.

'3. Serve on your tenant one copy of application and any attachments.

'4. File with the Agency three copies of application at the above address, together with proof of service on tenant.

'5. If your tenant makes an answer to your application, you have 7 days, if you desire, in which to reply. File two copies of your reply with the Agency Office, stating address of housing space.

'Instructions to Tenant

'If you want to answer your landlord's application, you must put all facts in letter form, serve a copy on the landlord and file your answer in duplicate with the Agency, all of which has to be done within 7 days. The papers filed with the Agency must include proof of service on the landlord and identify the housing space.'

A significant effect of Fenning's powerful objection to the rent increase was that upon reading it, Paris took such umbrage that he dictated by phone, to a secretarial employee of his corporation, a letter addressed to Fenning and containing this caption:--'Re: Your reply to our schedule F--1 Apt. $503 South Munn Ave. East Orange, N.J.' At the direction of Paris, this letter was not only mailed to Fenning but a copy sent for filing with the rent control Agency. It contained the allegedly defamatory matter for which damages are sought.

Turning to the communication itself, we note that after its formal salutation and the notation of its relevancy to the dispute pending before the rent control Agency, it contains in its first paragraph a description of Fenning as 'the ring leader and chief trouble maker for the previous landlord.' From this comparatively restrained beginning the language becomes progressively warmer, soon rising to a pitch of literary incendiarism, including the application to Fenning of epithets such as 'a plague and an abomination,' 'a parasite,' a 'Judas,' a giver of 'spurious testimony,' a bearer of 'false witness,' and attributing to him conduct such as the making of 'false charges, wilful, vile and mendacious inuendoes (sic) against us, from the slimy foul cesspool and abyss of your corruptible mind.' By the 'malevolent accusations' and 'calumnious inferences' charged thereby, the writer plainly refers to the litigant role played by Fenning in connection with the filing of his protest with the Agency, since Paris therein tells Fenning that his 'deliberate attempt to prejudice us in the eyes of the Rent Control authorities, fills us with loathing and contempt.' In conclusion the writer, not surprisingly, confesses a lack of respect for Fenning, branding the latter as an undesirable tenant and urging his early departure from the scene, significantly exposing his chafing under the control restrictions by foreseeing the eventual time when 'our property is confiscated from us.'

As much as one might sympathize with the besieged landlord, it is also understandable that Fenning, scorched in the blast of this fiery eloquence and considering that his reputation thereby was rendered En brochette, at least in the estimation of those to whom it was published, instituted this suit for compensation therefor and to punish the author of the defamatory material.

In the cooler perspective of appellate review, we are bound to agree with the view of the learned trial judge that the letter was libelous Per se, containing as it did '* * * false defamatory words, written and published, injurious to the reputation of another or exposing him to hatred, contempt or ridicule or subjecting him to a loss of the good will and confidence entertained towards him by others * * *,' the imputation of such words on their face being '* * * such as to raise the presumption of damage in the natural course, as a matter of law' (Leers v. Green, 24 N.J. 239, 131 A.2d 781, 787 (1957)), even though it did not charge a crime as such. Garven v. Finch, 97 N.J.L. 329, 116 A. 771 (E. & A. 1922); Bock v. Plainfield Courier-News, 45 N.J.Super. 302, 132 A.2d 523 (App.Div.1957); 33 Am.Jur., Libel and Slander, § 49. The plain import of the written words was that Fenning had and would, for unworthy and corrupt motives, offer false evidence to the rent control agency in support of baseless and spurious charges made against the appellants. A bearer of false witness, whether criminally perjurious or not, is regarded with loathing by just men.

Upon the basis of this classification of the defamatory words as libelous Per se, the trial court controlled all issues of fact as to liability, submitting to the jury only the question of damages to be awarded the plaintiff. The appeal projects many of the legal questions to be expected in this type of litigation, including the status of dictation of libelous matter to a secretary, as publication (Ostrowe v. Lee, 256...

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