Hartley v. Newark Morning Ledger Co.

• Decision Date: 25 April 1946
• Docket Number: No. 9.,9.
• Citation: 46 A.2d 777,134 N.J.L. 217
• Parties: HARTLEY v. NEWARK MORNING LEDGER CO. et al.
• Court: New Jersey Supreme Court

134 N.J.L. 217

46 A.2d 777

HARTLEY

v.NEWARK MORNING LEDGER CO. et al.

No. 9.

Court of Errors and Appeals of New Jersey.

April 25, 1946.

Suit for libel by Fred A. Hartley, Jr., against Newark Morning Ledger Company, a corporation of New Jersey, and others. Judgment for plaintiff, and defendants appeal.

Judgment reversed and record remitted for issuance of a venire de novo.

Syllabus by the Court.

1. It is not error to refuse a request to charge which states an abstract principle of law without any instruction to the jury as to its applicability.

2. The truthfulness of a libel is a complete defense in a civil action, but it must be pleaded fully and as to every particular, and be strictly proved, to be availed of.

3. The repetition of libelous statements made by others is not per se justifiable.

4. A request to charge which rests upon the assertion of a qualified privilege must state the character of the privilege and its qualification and also the facts to which and the circumstances under which the privilege is applied.

5. Questions which call for information irrelevant to the issues are incompetent.

6. Where, in a libel suit, the plaintiff's poverty is not attributed, and is not attributable, to the libel, the plaintiff may not be asked questions in his own behalf to elicit the fact of poverty.

7. When, following trial and verdict for the plaintiff, the defendant moves for a new trial and states as a ground that the verdict was the result of partiality, bias and prejudice, that ground comprehends the assumption that there was not credible evidence to sustain the verdict; and if the application for a new trial is denied without the earlier excision of that ground, error may not later, on appeal, be alleged because of the refusal of the trial court to nonsuit or to direct a verdict for the defendant.

8. The proofs in the case considered and held to present a jury question.

9. The action of a trial court in granting or refusing a new trial is within the discretion of that court and will not be reversed on appeal from the judgment unless the judicial act is such an abuse of discretion as to shock reason and justice.

10. Under the circumstances of the case the fact that the wife of a juror and the wife of a witness for, and assistant of, the plaintiff at the trial were sisters was not so flagrant an incident as to cause an appellate court to find error in the refusal of the trial court, on application after verdict, to grant a new trial.

Harry Green, of Newark, for plaintiff-respondent.

Emanuel P. Scheck, of Newark, Edward J. O'Mara, of Jersey City, and Osborne, Cornish & Scheck, of Newark, for defendants-appellants.

CASE, Chief Justice.

Plaintiff is and for a number of years has been the elected representative from the tenth district of New Jersey in the national House of Representatives. In 1940 he was running for reelection, and during the summer preceding the election he addressed a joint meeting of the various organizations making up the German-American Federation of Essex County. Some of his acts, including his attendance at that meeting, were aggressively criticised in the columns of the Newark Star Ledger. Two years later, when Hartley was again a candidate for reelection, the same newspaper published a series of news items and editorials arising in part out of the same incidents. These were made the subject of this libel suit by Mr. Hartley. The trial culminated in a verdict against the several defendants-the Newark Morning Ledger Co., owner of the newspaper, Samuel I. Newhouse, a stockholder, director, owner and publisher of the corporation, and Philip Hochstein, managing editor-in the amount of $24,000, being $6,000 on each of four counts. The defendants appeal from that judgment.

Appellants first argue that ‘the trial court erred in holding that truth is not a complete defense to a civil claim for libel.’ That is not precisely what the court held; it is appellants' interpretation of the legal effect of certain trial incidents consisting of two refusals by the court to charge and of a portion of the court's charge. Of the second refusal we find that the request was so framed as to constitute merely an abstract proposition of law and that consequently it was properly refused. ‘* * * A request to charge stating an abstract principle of law without any instruction to the jury as to its applicability, is bad.’ Hoffman v. Trenton Times, 125 N.J.L. 450, 16 A.2d 814, 815. As to the matter charged and now complained of there was no exception taken at the trial.

The first request to charge was: ‘The plaintiff cannot recover from the defendants for the publication of any matter which was true, no matter how defamatory, and regardless of the motives of the defendants in publishing it.’ The fault in appellants' position is well illustrated by the treatment in their brief of the opinion in Merrey v. Guardian Printing and Publishing Co., 79 N.J.L. 177, 74 A. 464, 466, affirmed 81 N.J.L. 632, 80 A. 331. Appellants quote therefrom as follows: ‘The truthfulness of a libel is a complete defense in a civil action * * *’; whereas the full sentence from which that abstract is taken is: ‘The truthfulness of a libel is a complete defense in a civil action; but it must be pleaded fully and as to every particular, and be strictly proved to be availed of.’ The complaint contained nine counts, each setting up a separate newspaper publication as the libel there sued upon. The responsive portions of the answer contained no allegation of truth. The only part of the pleading which is disclosed by our study as going to the truth of the alleged libel is the ‘first separate defense to all counts' which reads as follows:

‘All statements of fact printed and published by defendants or any of them about the plaintiff were substantially true, except statements attributed to others. As to statements of others, defendants have no knowledge as to their truth, but quoted them with substantial accuracy.’

The defendants did not plead the truth of their publications fully and as to every particular. The fact of an exception without greater specification of the excepted matter is of itself a divergence from pleading the truth fully and as to every particular. Moreover, the repetition of libelous statements made by others is not per se justifiable. Schwarz Brothers Co. v. Evening News Publishing Co., 84 N.J.L. 486, 490, 87 A. 148. Whether truth is pleaded specifically or simply under the general issue, the truth of the alleged libelous words may be proved to the extent of rebutting the presumption of malice, Bingham v. Schindel, 92 N.J.L. 502, 105 A. 727, Merrey v. Guardian Printing and Publishing Co., supra; but the request to charge must be correct in all particulars, and the present request as framed did not go to that field of law nor to a distinction between compensatory and punitive damages.

Appellants further complain of the court's refusal to charge three additional requests relating to privilege. The first two of those requests were mere statements of legal principles unapplied to the issues of the case and therefore faulty for the reason heretofore given. This is the third request in its entirety: ‘The defendants are not liable to the plaintiff for publishing any matter qualifiedly privileged, even if untrue and defamatory, unless the defendants published the same with actual malice.’ It is to be observed that this language as it stands would not be intelligible to a jury; that, on the contrary, it would be misleading and confusing. In fact, without more, it is puzzling to a mind trained in the law. A qualified privilege is, of course, a limited privilege. What is the qualified privilege which, although less than full privilege, will still give the defamer immunity unless the defamation be made with actual malice? Can every person who has any sort of a qualified privilege perpetrate a gross libel, whatever the circumstances and the nature of that libel, and be immune provided only he was not moved thereto by actual malice? How can it be known whether the perpetrator was privileged to publish the defamatory matter unless the character of and the qualification upon the privilege, and the facts of the publication, be stated? ‘The occasions which give rise to the privilege of speaking or publishing words which otherwise would be defamatory and actionable are various. * * * Whether the privilege is available as a defense depends upon the circumstances of the particular case, the situation of the parties, the persons to whom, the circumstances under which, and the manner in which, the communication was made.’ King v. Patterson, 49 N.J.L. 417, 420, 9 A. 705, 706, 60 Am.Rep. 622. Clearly, the request was not so framed as to entitle the defendants to the benefit of it as an instruction to the jury.

Appellants next present that the trial court erred in each of fourteen rulings against the admission of testimony from a defense witness. It will serve no useful purpose to particularize the numerous...