Kelly v. Hoffman

• Decision Date: 03 September 1948
• Docket Number: No. 15.,15.
• Citation: 137 N.J.L. 695,61 A.2d 143
• Parties: KELLY v. HOFFMAN et al.
• Court: New Jersey Supreme Court

137 N.J.L. 695

61 A.2d 143

KELLY

v.HOFFMAN et al.

No. 15.

Court of Errors and Appeals of New Jersey.

Sept. 3, 1948.

Appeal from Circuit Court, Mercer County.

Action by Lloyd J. Kelly against Arthur D. Hoffman, the Trentonian Publishing Company, a New Jersey corporation, and Trent Broadcasting Corporation, a New Jersey corporation, for defamation of character by radio. From an order striking the third count on ground that no cause of action was stated against defendant, Trent Broadcasting Corporation, plaintiff appeals.

Order reversed.

Frank I. Casey, of Trenton, for plaintiff-appellant.

Ernest S. Glickman, of Trenton (John J. Connell, of Trenton, of counsel), for defendant-respondent Trent Broadcasting Corporation.

BURLING, Justice.

There is involved in the decision of this appeal the law applicable to defamation of character by radio. It presents a case of first impression in this State. The gist of the cause of action against the defendant- respondent is found in the answer to the following question:

‘Is a radio broadcasting company which leases its facilities, liable for a defamatory statement during a radio broadcast by a person hired by the lessee and not in the employ of the radio broadcasting company, the words being carried to the radio listener by its facilities?’

Adjectively, the question arises in the following manner: An action for defamation of character by means of the radio was initiated by the plaintiff in the Mercer County Circuit Court. This is an appeal from an order made by the Mercer County Circuit Court Judge striking out the third count of the complaint pursuant to a motion made by the defendant Trent Broadcasting Corporation upon the ground that the count set forth no cause of action. The plaintiff failed to exercise the leave granted to him by the Court in the following language:

‘Here an actual speaking of the words complained of consumed a period of time of some three or four minutes and is therefore a factual question to be determined by a jury as to whether this defendant used due care under all of the circumstances then existing.

‘This complaint must allege a want of due care on the part of the defendant, Trent Broadcasting Corporation. It fails to do so.

‘Permission, however, is granted to amend the third count of the complaint accordingly within fifteen days of the time of the filing of this Memorandum. If not amended and filed, the complaint as to this defendant, will be stricken.’

In this count it is alleged that this defendant was the owner and operator of radio station known as WTTM located in Trenton, New Jersey, from which broadcasts emanated and were published and circulated to listeners through machines and equipment supplied by the defendant; that it let, rented and permitted its radio facilities to be used by the co-defendant, Trentonian Publishing Company and the co-defendant, Arthur D. Hoffman, the alleged editor and servant of the Trentonian Publishing Company, for the making of a certain news broadcast during which statements were made by Hoffman on the 17th day of October, 1946, concerning the plaintiff which are set up verbatim in the pleading. The plaintiff was a public official of the City of Trenton and occupied the office of Deputy Commissioner of Public Safety. The complaint alleges the broadcasted matter reflected upon the integrity of the plaintiff as such official.

The remarks are defamatory per se as they impute directly and by innuendos malfeasance upon the part of a public official. Garven v. Finch, Err. & App.1921, 97 N.J.L. 329, 116 A. 771; Reilly v. Curtiss, Sup.1912, 83 N.J.L. 77, 84 A. 199. They are actionable when thus spoken or written, Shaw v. Bender, Err. & App.1916, 90 N.J.L. 147, 100 A. 196, and a suit will lie without proof of special damage, Walsh v. Trenton Times, Inc., Err. & App.1939, 124 N.J.L. 23, 10 A.2d 740.

The count also contains the following allegations:

‘5. Copies of the said remarks, comments, observations and criticisms were available to the said Trent Broadcasting Corporation prior to their publication on and over the radio facilities of said defendant corporation.

‘6. Servants and agents of the defendant corporation were present and heard the aforesaid remarks, comments, observations and criticisms, read, spoken and published and said defendant corporation thereby published and adopted the said remarks, comments, observations and criticisms.

‘7. The said defendant corporation, Trent Broadcasting Corporation, well knew the position of respect and esteem occupied by plaintiff at that time, and by means of the foregoing, wickedly and maliciously contrived to take away plaintiff's good name, fame and credit and to bring him into public infamy and disgrace.’

The complaint is set forth in three counts-the first is against the defendant Arthur D. Hoffman, the second against the defendant Trentonian Publishing Company and the third count is against the defendant Trent Broadcasting Corporation. As to Counts 1 and 2 answers were filed and issue was joined.

For the purpose of this motion, the defendant, Trent Broadcasting Corporation, admits the truth of all facts well pleaded in the complaint and all inferences of fact which can be legitimately drawn therefrom. In testing the sufficiency of a pleading its allegations may alone be looked to. It is to be noted in the disposition of the motion by the Court certain extraneous facts were written into the opinion which resulted from the arguments of counsel and are not available upon the disposition of the motion. The sufficiency of the complaint will be determined from the facts therein properly alleged from which a legal duty and liability for the violation thereof are deduced. The rules of pleading require the pleader either to aver directly the facts which constitute his claim or to set forth circumstances from which those necessarily by intendment of law result. The power to strike out a pleading as frivolous will not be exercised unless it appears clearly and palpably so and the power is to be cautiously exercised. While the present rules of the Supreme Court have abolished the distinctive common law forms, the essential and differentiating rules applicable to pleading as established at common law still survive as a matter of remedial law. Ward v. Huff, Sup.1919,94 N.J.L. 81, at page 84, 109 A. 287.

Now to the substantive question: The pertinent cases are relatively few and the law is still and obviously in the process of crystalization. Much discussion upon the subject is found in articles in law school journals and periodicals throughout the country. So far as the briefs reveal, there is no New Jersey statute imposing or regulating the liability of broadcasting stations in such circumstances. The Federal Communications Act of 1934, 47 U.S.C.A. s 315 &c., contains a provision which forbids a radio station to exercise censorship over political broadcasts by candidates for office under certain circumstances. It is not applicable under the facts in this case. So the issue must be decided according to the common law.

If the decision hinges upon the distinctive features of the substantive law of libel and slander, then it is difficult to make.

The latest declaration in this state upon the definition of a libel is found in State v. Reade, Sup.1948, 136 N.J.L. 432, at pages 433, 434, 56 A.2d 566:

‘All textbook writers and the decisions of our Courts are in accord that ‘libel’ is any printed or written defamation of a person, published maliciously and without justification.'

‘The common acceptation and meaning of the word ‘libel’, is, as stated, a written or printed defamatory publication, as contrasted with an oral, or slanderous, statement.'

Radio broadcasting has provided a medium for the publication of defamatory matter which is unique in the history of law of libel and slander. Defamatory broadcasts have been termed sui generis, possessing characteristics of both libel and slander. Socolow, Law of Radio Broadcasting (1939) Sec. 466. Radio broadcasting presents a new problem, so new that it may be said to be in a state of development and experimentation. When courts distinguished between speech or writing or print, radio was in the realm of the fanciful. Publication by radio has physical aspcts entirely different from those attending the publication of a libel or slander as the law understands them. With a growing tendency to indulge in the practice of ‘ad libbing’ the legal problem assumes greater importance to the broadcasting stations and to the injured persons. The fact that the mechanics of broadcasting include elements of both the written and spoken word, that oral delivery at the microphone of only brief duration is accompanied by wide dissemination of the spoken matter which may be picked up by such receiving apparatus as happens to be tuned in requires an analysis of the quality of the tort and the extent of the liability to be imposed.

There are two schools of thought as to the act of publishing the defamatory statement by the broadcasting medium-one of so-called absolute liability as explained in Sorensen v. Wood, 1932, 123 Neb. 348, 243 N.W. 82, 83, 82 A.L.R. 1098, and the other of liability based upon negligence as elucidated in Summit Hotel Co. v. National Broadcasting Co., 1939, 336 Pa. 182, 8 A.2d 302, 124 A.L.R. 968.

Volume 3 of Torts Restatement of the Law, page 213, contains the following:

‘f. Radio Broadcasting. The proprietors of a radio broadcasting station are at least liable under circumstances which would make a disseminator of defamatory matter liable under the rule stated in this section, that is, if they fail to exercise reasonable care to prevent the publication of defamatory matter. The Caveat to s 577 raises the question, on which the Institute takes no position,...