Hohl v. Mettler, A--122

• Decision Date: 10 June 1960
• Docket Number: No. A--122,A--122
• Citation: 162 A.2d 128,62 N.J.Super. 62
• Parties: Charles HOHL, Plaintiff-Appellant, v. John METTLER, Jr., et al., Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 62

62 N.J.Super. 62

162 A.2d 128

Charles HOHL, Plaintiff-Appellant, v. John METTLER, Jr., et al., Defendants-Respondents.

No. A--122.

Superior Court of New Jersey Appellate Division.

Argued Feb. 8, 1960.

Decided June 10, 1960.

Leonard Adler, Englewood, argued the cause for plaintiff-appellant (Edward Marshall, Englewood, attorney).

Richard H. Thiele, Jr., Somerville, argued the cause for defendants-respondents (Wharton, Stewart & Davis and William T. Stewart, Jr., Somerville, attorneys).

Before Judges GOLDMANN, CONFORD and FREUND.

CONFORD, J.A.D.

Plaintiff sues in tort for damages against defendants for wrongfully preventing his obtaining a license to operate a trailer court in the Township of Readington by false and malicious statements concerning the nature of his proposed operation in public advertisements and circulars, by word of mouth, and before the township committee. Defendants applied for summary judgment upon the basis of the complaint, the answer, and plaintiff's answers to interrogatories. There were no affidavits on either side. The trial court granted the motion on the ground that plaintiff's claim did not amount to a cause of action. In the course of colloquy on the argument of the motion, the judge also expressed doubt as to plaintiff's ability to establish proximate causal relationship between defendants' acts and the denial of the license.

From the allegations of the complaint, liberally read, as necessary on such a motion, Di Cristofaro v. Laurel Grove Memorial Park, 43 N.J.Super. 244, 249, 128 A.2d 281 (App.Div.1957), and the answers to the interrogatories, we piece out the following factual contentions by plaintiff.

In the fall of 1952 plaintiff contracted to purchase certain lands on State Highway No. 28 in Readington conditional upon obtaining a municipal license to operate a trailer court thereon. He thereupon applied for and received such a license from the township committee October 9, 1952. Relying thereon, he consummated the purchase of the property. Thereafter, on November 7, 1952, the committee revoked the license because of failure of publication of notice of a hearing on the application (Hohl v. Township of Readington, A--792--58, App.Div., decided February 29, 1960, unreported). A new application, filed December 1, 1952, was set down for public hearing January 2, 1953. Thereupon defendants instigated and financed a campaign of advertising and publicity in opposition to plaintiff's proposed tourist park 'representing the same in words and pictures to be offensive, dangerous to health, leading to increase of taxes, depreciating the value of real property,' all asserted by plaintiff to be false. As a result the hearing was adjourned to February 2, 1953 and the license then denied, allegedly because of the 'atmosphere of prejudice and antipathy to the thought of a trailer camp' engendered by defendants' activities. This action was instituted November 7, 1958.

Among the specific allegations of false statements attributed to defendants in the answers to interrogatories are found these: (a) a newspaper advertisement consisting or a cartoon 'depicting dirty, unkempt trailer court and containing statements that trailer courts depreciate value of real property, impair public health and are against the public welfare'; (b) another advertisement reading, Inter alia, 'Can our schools accommodate children from upwards of 200 families who pay a minimum in taxes, stay only a short time, and then move on?' The advertisement called upon the people to come to a township committee meeting November 3 (1952) 'to stop this.' (Plaintiff contends that his filed application for the license showed that only 40--50 families were to be accommodated); (c) statements to the newspapers to the effect that inadequate drainage conditions would create a health menace to surrounding residents and farms; and (d) statements at the township committee meeting of February 2, 1953 concerning drainage conditions and prospective number of school children from the camp. Plaintiff cites as evidence of malice a statement by two of the defendants that they would stop at nothing to defeat plaintiff's plans.

The complaint is in three counts, one predicated upon interference with plaintiff's contractual relationships, the second upon interference with his prospective business advantage, and the third upon the theory of injurious falsehood. Of these, there is utterly no factual support for the first. The other two causes of action mentioned are well recognized in our cases, the second involving the whole gamut of conduct injurious to legally protected interests (not based upon false statements as the gravamen), the third being specifically predicated upon false statements. Examples of these causes of action are found in Rainier's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 117 A.2d 889 (1955); Mayflower Industries v. Thor Corp., 15 N.J.Super. 337, 83 A.2d 366 (Ch.1951), affirmed opinion below 9 N.J. 605, 89 A.2d 242 (1952); Longo v. Reilly, 35 N.J.Super. 405, 114 A.2d 302 (App.Div.1955), certification denied 25 N.J. 45, 134 A.2d 540 (1957); Di Cristofaro v. Laurel Grove Memorial Park, 43 N.J.Super. 244, 128 A.2d 281 (App.Div.1957); Sustick v. Slatina, 48 N.J.Super. 134, 137 A.2d 54 (App.Div.1957); Kurtz v. Oremland, 33 N.J.Super. 443, 111 A.2d 100 (Ch.Div.1954), affirmed opinion below 16 N.J. 454, 109 A.2d 286 (1954); Joseph v. Passaic Hospital Ass'n, 38 N.J.Super. 284, 118 A.2d 696 (App.Div.1955), certification denied 20 N.J. 535, 120 A.2d 661 (1956); cf. Trautwein v. Harbourt, 40 N.J.Super. 247, 123 A.2d 30, 59 A.L.R.2d 1274 (App.Div.1956), certification denied 22 N.J. 220, 125 A.2d 233 (1956); 20 A.L.R.2d 344 (1951).

In view of the precise basis for our conclusion that the judgment should be affirmed, hereinafter to be stated, we shall not expatiate upon the sufficiency of the facts here exposed to make out a colorable case for the wrongfulness of the defendants' conduct within the principles expounded in the cited cases. It will suffice to express the view that defendants' activity was at least conditionally privileged, having regard for their ownership of property in the immediate vicinity of the proposed trailer camp, as well as their status as citizens of the community interested in its general welfare. They would, therefore, be liable at most for abuse of the privilege; for example, if their statements were knowingly false or their conduct motivated by actual malice. Prosser, Torts (2d ed. 1955), § 108, pp. 767, 768. 'The justification must be 'as broad as the act, and must cover not only the motive and the purpose, or, in other words, the object sought, but also the means used. " Louis Kamm, Inc. v. Flink, 113 N.J.L. 582, 589, 175 A. 62, 67, 99 A.L.R. 1 (E. & A. 1934). As to the other features of defendants' complained-of activity, the publication of the cartoon referred to, and the stirring up generally of opposition to the proposal on grounds of civic interest, depreciation of realty values and general considerations of health, taxation, etc., we think it patent no legal cause of action is made out by the plaintiffs. The acts complained of in that general category fall well within the qualified privilege of citizens to protect their property and serve the general common good. They would appear to come within the protection analogous to that secured by the defamation rule of 'fair comment' as to matters of public interest or concern. See e.g., Leers v. Green, 24 N.J. 239, 253, 131 A.2d 781 (1957); Licciardi v. Molnar, 23 N.J.Misc. 361, 368, 44 A.2d 653 (Dist.Ct.1945); and see Charles Parker Company v. Silver City Crystal Co.,142 Conn. 605, 116 A.2d 440 (Sup.Ct.Err...