Rothholz v. Dunkle

• Decision Date: 16 June 1891
• Citation: 53 N.J.L. 438,22 A. 193
• Parties: ROTHHOLZ v. DUNKLE.
• Court: New Jersey Supreme Court

22 A. 193

53 N.J.L. 438

ROTHHOLZ

v. DUNKLE.

Court of Errors and Appeals of New Jersey.

June 16, 1891.

(Syllabus by the Court.)

Error to circuit court, Atlantic county; before Justice Reed.

A. Stepbany, for plaintiff in error.

Howard Carrow, for defendant in error.

VAN SYCKEL, J. This is an action for damages for an alleged libel contained in the following letter, written by Oliver R. Dunkle, the cashier of the Merchants' Bank of Atlantic City: "Robert Ohnmeiss, Esq.: Inclosed please find one share of Merchants' stock received some time ago. Our board refuses to purchase at present, but hold under advisement. We have stricken your name from the bond of Mr. Carl Voelker by request; also Samuel Rothholz's, as the latter has no financial standing. Respectfully, O. R. Dunkle, Cashier." Robert Ohnmeiss was a stockholder in the same bank, and he and Rothholz, the plaintiff, were sureties on the official bond of Carl Voelker, an employe of the bank. Previous to the writing of this letter, Ohnmeiss had requested Dunkle to have his name stricken from the said bond, but did not make any inquiry with respect to the plaintiff, Rothholz. At the close of the plaintiff's case, the trial judge, regarding the communication a privileged one, ordered the plaintiff to be called. Whether, under the given circumstances, the nonsuit should have been ordered is the sole question in this court.

The statement that the plaintiff had no financial standing was libelous, and constituted a legal foundation for the recovery of damages, unless the occasion upon which it was uttered gave rise to the privilege of publishing what would otherwise be actionable. The term "privilege," as applied to a communication alleged to be libelous, means, simply, that the circumstances under which it was made are such as to repel the legal inference of malice, and to throw upon the plaintiff the burden of offering some evidence of its existence beyond the falsity of the charge. This court, in King v. Patterson, 49 N. J. Law, 419, 9 Atl. Rep. 705, declared "that a communication, made bona fide, upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain connivatory matter which, without this privilege, would be actionable. "In the case cited the learned judge who delivered the opinion of the court referred with approbation to Lawless v....