Merrey v. Guardian Printing & Publ'g Co.

• Decision Date: 19 June 1911
• Citation: 80 A. 331,81 N.J.L. 632
• Parties: MERREY v. GUARDIAN PRINTING & PUBLISHING CO. et al.
• Court: New Jersey Supreme Court

80 A. 331

81 N.J.L. 632

MERREY

v. GUARDIAN PRINTING & PUBLISHING CO. et al.

Court of Errors and Appeals of New Jersey.

June 19, 1911.

(Syllabus by the Court.)

Pitney, Ch., and Trenchard, J., dissenting.

Error to the Supreme Court.

Action by Edward F. Merrey against the Guardian Printing & Publishing Company and Clarence H. Baxter. Judgment for plaintiff was reversed by the Supreme Court (74 Atl. 464), and he brings error. Affirmed.

William B. Gourley, for plaintiff in error.

John W. Harding and Michael Dunn, for defendants in error.

SWAYZE, J. The plaintiff recovered judgment in an action for libel, which was reversed by the Supreme Court. Their judgment is now before us for review. We find it necessary to consider only one of the assignments of error, and express no opinion upon the other points involved in the case.

The learned trial judge at the request of the plaintiff charged the jury: "As no justification can be made under the pleas filed in this case of that part of the published article of May 9, 1908, which the defendants admit publishing in relation to the plaintiff's official position being used to protect lawbreakers, the plaintiff is entitled to a verdict." The point of this request appears from an early part of the charge where the court said that the defendants failed in the pleas to justify the truth of a portion of the alleged libel. Since the request and the charge that followed related only to the published article of May 9th which is fully set forth in the opinion of the Supreme Court, we need not consider the later article. An examination of the pleadings shows that all of the essential portion of the article of May 9th was justified by the plea except the following: "While the taint of anarchy was a blight upon this city, it does not begin to equal in evil results the knowledge that our city officials, the men sworn to uphold the law, are the very ones to use the power of office to protect lawbreakers and make it impossible by evasion and legal quibble to punish open violation of the law. That hurts Paterson most, far more than anarchy, because it cannot be truthfully contradicted." We say all the essential portion, since the only other words not covered by the plea of justification are the italicized words of the following sentence: "The recent action of the board of aldermen and city counsel had brought forth caustic comment that does this city incalculable harm—because it is true." It is quite clear that the words, ...