Finkelstein v. Geismar

• Decision Date: 03 May 1918
• Docket Number: No. 77.,77.
• Citation: 106 A. 209
• Parties: FINKELSTEIN v. GEISMAR.
• Court: New Jersey Supreme Court

106 A. 209

FINKELSTEIN

v. GEISMAR.

No. 77.

Court of Errors and Appeals of New Jersey.

May 3, 1918.

Appeal from Supreme Court.

Action by Ned K. Finkelstein against Herman Geismar. Judgment for plaintiff, and defendant appeals. Affirmed.

The following is the opinion of Trenchard, J., in the court below:

On May 15, 1910, the plaintiff below opened a clothing store on Washington street, in Hoboken. Three days later he was invited to the mayor's office in the city hall. In this suit for slander he avers that then and there the defendant said to the mayor of and concerning him: "This man, Mr. Finkelstein, is a faker, and came to Hoboken to fake the public, and his method of doing business is to show an article in the window, and when a man comes inside to purchase that article to give him inferior goods in its place. He is a disgrace to Hoboken and Washington street, and a man like him should be driven out of the town."

The jury found for the plaintiff, and the defendant's chief contention here is that the trial judge should have directed a verdict for him on the ground that the alleged slander was a privileged communication. We think the judge rightly refused to direct a verdict.

The question is whether the defendant's statement came within that class of communications which is regarded in law as having a qualified privilege.

A communication is qualifiedly privileged where circumstances exist, or are reasonably believed by the defendant to exist, which cast on him the duty of making a communication to a certain other person to whom he makes such communication in the performance of such duty, or where the person is so situated that it becomes right in the interests of society that he should tell third persons certain facts, which he in good faith proceeds to do. King v. Patterson, 49 N. J. Law, 417, 9 Atl. 705, GO Am. Rep. 622; Fahr v. Hayes, 50 N. J. Law, 275, 13 Atl. 261; Rothholz v. Dunkle, 53 N. J. Law, 438, 22 Atl. 193, 13 L. R. A. 655, 26 Am. St Rep. 432.

It is seen, therefore, that a qualifiedly privileged communication is inconsistent with the existence of express malice and requires both an occasion of privilege and the use of that occasion in good faith and is actionable if actuated by express malice. Where there is evidence of express malice to rebut the occasion of privilege, the judge must submit the case to the jury.

By express malice in this connection is meant some motive actuating the defendant different from that which prima facie rendered the communication privileged, and being a motive contrary to good morals. The existence of such a motive may be legitimately gathered from the character of the defamatory communication, as if the terms used be utterly beyond and disproportionate to the facts which the defendant had reason to believe, or from the circumstances under which the communication is made, or from any extraneous facts which in reason tend to prove it. Fahr v. Hayes, supra.

In the present case it may be assumed that the occasion upon which the words were spoken was one giving rise to a qualified privilege. But we think that the evidence was such that the jury could legitimately find express malice and a want of good faith, as in fact i

The evidence showed that at the time of the defendant's statement the plaintiff and the defendant were competitors in business, the plaintiff having opened his store three days before, and the defendant being an old-established merchant The defendant was a member of a committee appointed by the Merchants' Association to investigate the plaintiff's method of doing business. According to his own testimony he made no investigation except to observe that "the plaintiff had his goods on ordinary packing boxes," but nevertheless he went immediately to the mayor and caused the plaintiff to be sent for, and then and there made the statement complained of. His own testimony shows that his sole reason for making the defamatory statement was that a corporation (with which the plaintiff was formerly connected), whilst in business for a short period during the year...