Rogers v. Courier Post Co., No. A-297.

CourtNew Jersey Supreme Court
Writing for the CourtACKERSON, J.
Citation66 A.2d 869
PartiesROGERS v. COURIER POST CO.
Docket NumberNo. A-297.
Decision Date20 June 1949

66 A.2d 869

ROGERS
v.
COURIER POST CO.

No. A-297.

Supreme Court of New Jersey.

Argued May 2, 1949.
Decided June 20, 1949.


66 A.2d 870

COPYRIGHT MATERIAL OMITTED.

Appeal from Camden Circuit of former Supreme Court.

Action for libel by W. Leslie Rogers against Courier Post Co. From judgment for defendant entered on a verdict of no cause of action, plaintiff appeals.

Judgment reversed and cause remanded for trial de novo.

66 A.2d 871

Harry Green, Red Bank, argued the cause for appellant.

Samuel P. Orlando, Camden, argued the cause for respondent (Orlando, Devine & Tomlin, Camden, attorneys).

The opinion of the court was delivered by

ACKERSON, J.

This is an action for libel wherein plaintiff seeks compensatory and punitive damages from the defendant for publishing in its newspapers certain defamatory articles imputing to the plaintiff interference with the administration of justice in Pennsauken Township, in the County of Camden. Defendant had a verdict of no cause of action and, from the judgment entered thereon, the plaintiff appeals.

At the times of these publications the plaintiff resided in the township aforesaid and was treasurer thereof and custodian of its school funds. He was also engaged in the insurance business in the City of Camden, and was a prominent figure in the civic and political affairs of Camden County

66 A.2d 872

and a member of the Division of Tax Appeals of this state.

A retraction was demanded pursuant to R.S. 2:59-2, N.J.S.A., and after defendant's failure to comply therewith, the plaintiff filed his complaint containing six counts, later consolidated into three, all based upon three articles, with bold-faced headlines, substantially alike, appearing in different issues of defendant's newspapers, the Evening Courier and Morning Post. Each of the consolidated counts incorporates one of these articles in full and asserts that it is libelous and that the publication thereof was induced by the personal ill will of the defendant towards the plaintiff and was in reckless disregard of the plaintiff's rights.

The substance of these publications purports to be an accurate report of a verbal altercation between the Assistant Prosecutor of Camden County, Anthony Mitchell, and the Chief of Police of Pennsauken Township, Thomas Thorpe, which, it is stated, took place at the close of the state's case in the former Court of Quarter Sessions of Camden County against one Roberts for larceny. The dispute apparently arose because two accomplices of Roberts had not been reported to the prosecutor's office for indictment by the grand jury along with Roberts, but instead had been taken before the local recorder on a disorderly charge and let off with light fines.

The headlines of these articles contain inter alia, the following statements: ‘Officials Fix Charges, Aide Avers in Court. Tells Thorpe Township Conditions are ‘Rotten’; Says Rogers ‘Gives Orders'.’ ‘Mitchell Hits Pennsauken's Crime ‘Fixing’. Rogers ‘Gives Orders' in Covering Cases, * * *.’ The following references to the plaintiff appear in the body of the articles: ‘Assistant Prosecutor Anthony Mitchell today charged that politicians in Pennsauken township ‘covered up’ criminal cases handled by the police. Mitchell named W. Leslie Rogers, Republican leader there, as one of those who ‘give orders' to the police department.’ The following also appears: “* * * the cases Pennsauken police bring in here stink', Mitchell declared. ‘You know this one stinks but you probably can't do anything about it on account of Les”. Again, “Why don't you clean up Matchtown?‘ Mitchell asked. ‘That section is full of speakeasies. If you don't know where they are, I suggest that you ask ‘Pep’ Jones or Les Rogers. They probably know.''

Defendant's answer, after admitting publication, and making other admissions and denials, added five separate defenses, all of which, except the second, pleaded various forms of qualified privilege.

Plaintiff's demand for a bill of particulars respecting three of the defenses was denied and exception taken. He thereupon filed his reply to the defendant's answer, denying the allegations of the separate defenses and reserving the right to move to strike them at or before trial as insufficient in point of law, failing to state sufficient facts, alleging conclusions of fact and law, and repetitious. Such a motion was made at the inception of the trial and denied, except as to the second defense which was stricken for the reason last stated.

Obviously the references to the plaintiff in the foregoing articles and the headlines thereto are defamatory per se. Cf. Garven v. Finch, 97 N.J.L. 329, 116 A. 771 (E. & A. 1921); McDermott v. Evening Journal Ass'n, 43 N.J.L. 488, 39 Am.Rep. 606 (Sup.Ct.1881), affirmed 44 N.J.L. 430, 43 Am.Rep. 392 (E. & A. 1882); Hand v. Winton, 38 N.J.L. 122 (Sup.Ct.1875); Johnson v. Shields, 25 N.J.L. 116 (Sup.Ct.1855); Kelly v. Hoffman, 137 N.J.L. 695, 698, 61 A.2d 143, 144 (E. & A. 1948); 53 C.J.S., Libel and Slander, s 13, p. 57; Id., s 121, p. 199. At the trial the defendant did not attempt to prove the truth of such statements but did prove that the publications were accurate reports of what was said in the heated colloquy between the Assistant Prosecutor and the Chief of Police, and relied entirely on the asserted privileges, presently to be considered, as complete defenses with respect thereto.

After all of the evidence was in the plaintiff moved for a directed verdict in his favor respecting defendant's liability, with only the question of damages left for the consideration of the jury, which motion was denied and exception noted.

The first point argued on the appeal is that the trial court erred in refusing to

66 A.2d 873

strike the four separate defenses remaining in the defendant's answer, and in denying plaintiff's motion for a directed verdict except as to the assessment of damages.

The first separate defense claimed a qualified privilege because the words so published related to matters of public interest and concern, and to the public acts of public officials, and that the allegations of fact were true in substance and in fact, and any expressions of opinion were fair comment thereon made in good faith and without malice.

In cases where the alleged libelous matter contains both statements of fact and comment thereon, it is proper to plead in this manner. Such a pleading is not regarded as setting up two defenses in one plea-justification (truth) and fair comment, since the latter depends on the former. Only the defense of fair comment is thus pleaded. Cf. Foley v. Press Pub. Co., 226 App.Div. 535, 235 N.Y.S. 340, 350; Cohalan v. New York World-Telegram Corp., 172 Misc. 1061, 16 N.Y.S.2d 706 (1939); Odgers on Libel and Slander (6th Ed.) Chap. 23, p. 514. While this defense could have been pleaded with more particularity, nevertheless, the articles therein referred to are set forth in full in the complaint, containing pertinent facts, and we feel that the criticized plea meets the requirements of modern pleading, and plaintiff was not prejudiced by the court's refusal to strike it at the inception of the trial.

Factually, however, this defense was not sustained by the...

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28 practice notes
  • Sisler v. Gannett Co., Inc.
    • United States
    • United States State Supreme Court (New Jersey)
    • October 21, 1986
    ...must relate statements made in the course of a judicial proceeding or a prosecution. See Rogers v. Courier Post Co., 2 N.J. 393, 403, 66 A.2d 869 (1949). Courts have viewed the qualified privilege as accommodating the "competing social and political interests [of] the protection of the repu......
  • Taj Mahal Travel, Inc. v. Delta Airlines, Inc., No. 97-5652
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 30, 1998
    ...it originally, even though he attributes the libelous statements to the original publisher."); Rogers v. Courier Post Co., 2 N.J. 393, 66 A.2d 869, 873 (N.J.1949); see also Restatement (Second) of Torts § In addition, the letter provides: "[i]t is necessary to retain your ticket in order to......
  • Schiavone Const. Co. v. Time, Inc., Civ. A. No. 83-932.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • October 1, 1985
    ...subject to liability as if he or she had originally published it," 735 F.2d at 96, citing Rogers v. Courier Post Co., 2 N.J. 393, 66 A.2d 869 (1949); Barres v. Holt, Rinehart & Winston, Inc., 131 N.J.Super. 371, 330 A.2d 38 (L.Div. 1974), aff'd, 141 N.J.Super. 563, 359 A.2d 501 (App.Div.197......
  • Gaylord Entertainment Co. v. Thompson, Nos. 88925
    • United States
    • Supreme Court of Oklahoma
    • April 14, 1998
    ...132, 206 A.2d 185, 195 (1965), citing Leers v. Green, 24 N.J. 239, 254, 131 A.2d 781, 789 (1957); Rogers v. Courier Post Co., 2 N.J. 393, 66 A.2d 869, 873 (1949). Ordinarily a defendant must prove that the facts on which the comment is founded are true. Gatley, LIBEL AND SLANDER (5th ed.196......
  • Request a trial to view additional results
28 cases
  • Sisler v. Gannett Co., Inc.
    • United States
    • United States State Supreme Court (New Jersey)
    • October 21, 1986
    ...must relate statements made in the course of a judicial proceeding or a prosecution. See Rogers v. Courier Post Co., 2 N.J. 393, 403, 66 A.2d 869 (1949). Courts have viewed the qualified privilege as accommodating the "competing social and political interests [of] the protection of the repu......
  • Taj Mahal Travel, Inc. v. Delta Airlines, Inc., No. 97-5652
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 30, 1998
    ...it originally, even though he attributes the libelous statements to the original publisher."); Rogers v. Courier Post Co., 2 N.J. 393, 66 A.2d 869, 873 (N.J.1949); see also Restatement (Second) of Torts § In addition, the letter provides: "[i]t is necessary to retain your ticket in order to......
  • Schiavone Const. Co. v. Time, Inc., Civ. A. No. 83-932.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • October 1, 1985
    ...subject to liability as if he or she had originally published it," 735 F.2d at 96, citing Rogers v. Courier Post Co., 2 N.J. 393, 66 A.2d 869 (1949); Barres v. Holt, Rinehart & Winston, Inc., 131 N.J.Super. 371, 330 A.2d 38 (L.Div. 1974), aff'd, 141 N.J.Super. 563, 359 A.2d 501 (App.Div.197......
  • Gaylord Entertainment Co. v. Thompson, Nos. 88925
    • United States
    • Supreme Court of Oklahoma
    • April 14, 1998
    ...132, 206 A.2d 185, 195 (1965), citing Leers v. Green, 24 N.J. 239, 254, 131 A.2d 781, 789 (1957); Rogers v. Courier Post Co., 2 N.J. 393, 66 A.2d 869, 873 (1949). Ordinarily a defendant must prove that the facts on which the comment is founded are true. Gatley, LIBEL AND SLANDER (5th ed.196......
  • Request a trial to view additional results

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