Schwarz Brothers Company v. Evening News Publishing Company

• Court: New Jersey Supreme Court
• Writing for the Court: SWAYZE, J.
• Citation: Schwarz Brothers Company v. Evening News Publishing Company, 87 A. 148, 84 N.J.L. 486 (N.J. 1913)
• Decision Date: 09 June 1913
• Parties: SCHWARZ BROTHERS COMPANY v. EVENING NEWS PUBLISHING COMPANY ET AL

87 A. 148

84 N.J.L. 486

SCHWARZ BROS. CO.

v. EVENING NEWS PUB. CO. et al.

Supreme Court of New Jersey.

June 9, 1913.

[Copyrighted material omitted.]

Action by the Schwarz Bros. Company against the Evening News Publishing Company and others. Motion to strike out answer granted, with leave to file amended answer.

Argued before SWAYZE, J., sitting alone.

Merritt Lane, of Jersey City, for the motion.

Alfred F. Skinner and Corwin Howell, both of Newark, opposed.

SWAYZE, J. This is an action for libel. The complaint contains four counts. To this the defendants have interposed an answer of 43 typewritten pages. The counsel who drew the answer have shown commendable care in the somewhat delicate task of dealing with the practice under the new act of 1912 (Act March 28, 1912 [P. L. p. 377]), but it is obvious that, if that act requires or even permits such an answer as this, it will, so far from simplifying pleadings, make them intolerably prolix. I think the statute does not require pleadings to be put in this form, and that models are to be found in Bullen & Leake's "Precedents of Pleadings," and in Odgers "On Libel and Slander," which state succinctly the defense intended to be made. The rules annexed to the statute require a plain and concise statement of the facts and not of the evidence by which they are to be proved (rule 17). This is substantially the rule in common-law pleading. By a statement of the facts is of course meant the facts to be put in issue and not all the facts surrounding the case. The rules are also careful to provide that unnecessary repetition, prolixity, and any other violations of the rules of pleading are objectionable (rule 25), and that pleadings must be direct, precise, specific, and not argumentative (rule 33). In short, the object of the statute was to do away with the technicalities of common-law pleading and require a plain, intelligible statement of the real point involved, and to do away with the blind method which had grown up, by which, for example, under a plea of not guilty in an action for libel, almost any defense could be interposed. I propose to examine the answer in tills case in the light of these rules.

The defenses, in substance, are: First. That the four libels set forth in the four counts of the plaintiff's declaration are not an accurate statement of the publication made by the defendants; that portions only of the publication are selected and other portions are omitted which, perhaps, would explain or qualify what is set forth as libelous.

Second. That the words were not used in the defamatory sense imputed to them by the plaintiff.

Third. That the publication complained of was true in substance and fact.

Fourth. That the publication was privileged because it related to a matter of great public interest and was published in an honest belief of the truth of the statements.

Fifth. That the business conducted by the plaintiff and for injury to which damages were claimed was unlawful.

1. With reference to the first defense, inasmuch as the claim of the defendants is that the complaint sets forth only a partial and an unfair statement of the publication, it is open to the defendants to interpose a general denial. If they are right, they did not publish the alleged libel. If, for instance, to paraphrase Lord Erskine's classical example, the publication had actually been that certain malevolent rascals had published the following statements of and concerning the plaintiff, no one would assert that the plaintiff could maintain an action for libel by averring and proving the statements without the preliminary averment that they were the statements of a malevolent rascal; if the plaintiff undertook to maintain his suit on such an incomplete statement, the defendants could well deny generally the publication. I think the same principle applies in any case where the complaint does not fairly set forth the whole publication. This leads me to refuse to strike out the first defense.

2. The second defense is intended to put in issue the defamatory sense averred in the complaint. If it had merely said that the words and language in the complaint, when read and considered in connection with all the other words and language published therewith, did not admit of the defamatory sense averred in the complaint, it would have been a good plea, but in its present form it is prolix and argumentative. It is also subject to a further objection. It avers that the words, when read in connection with the text, whether taken in their natural sense or in the alleged defamatory sense averred in the complaint, do not constitute and are not a false, slanderous, malicious, and defamatory libel. This is in the alternative and therefore objectionable; but, if taken as equivalent to an averment that the words even in the alleged defamatory sense are not libelous, it is objectionable because it tenders an issue in law. It is only when the language may be libelous or not according as it may be construed that a jury question is presented. Odgers, 94; 25 Cyc. 542. I have examined the complaint to determine whether the words, if used in the alleged defamatory sense, may be found by a jury to constitute an actionable libel. I think they may. The second defense is stricken out, but the defendants may plead anew within ten days.

3. The third defense is a long and prolix statement in narrative form, setting forth, among other things, communications from outside parties to outside parties derogatory to the plaintiff. The real defense appears only in the last two or three lines where it is averred that, according to the fair and ordinary meaning of the words and language as used in the newspaper in which the same were published, the statements are true in substance and fact. This is the issuable fact. It is the ordinary plea of the truth of the charge. The form is given in Bullen & Leake, at page 840, and in Odgers, at page 641. The material particulars justifying the allegation that the publication was true in substance and fact are that diseased horses, unfit for food, were slaughtered for human food by the plaintiff; that the flesh of horses that died otherwise than by slaughter was pickled or corned into a product for human consumption; that the slaughtering of horses for human food was conducted by the plaintiff under unsanitary conditions, and with the same implements and in the same place where diseased animals were killed and cut up to be sent to the rendering tanks; that sales of horse meat for human food were habitually made without tagging them as horse meat; that shipments of pickled horse meat for use as food were made by the plaintiff to Holland, which were not in compliance with the laws of that country; that the horse meat so shipped was not slaughtered and prepared in compliance with the laws of this state; and that horse meat, not properly tagged as such, was sold in New York, contrary to the laws of that state. These averments are proper; but, if such specifications are relied on, the specific occasions should be set forth in order to apprise the plaintiff of the proof to be made. The rest of the defense is a mere narrative of what was done by certain public officials in the investigation of the business of the plaintiff. This is no part of a proper pleading, and some of it is highly objectionable as containing statements of third parties. Repetition of libelous statements made by others is not justifiable. This defense must be stricken out, with leave to plead anew within ten days.

The fourth defense is the same as the third, except that it avers that the words were true in the alleged defamatory sense. The pleader seems thereby to take an unnecessary burden upon himself, since all he need do is to prove the truth of the words used; if true, they must be so for all purposes, and the defendant is justified although the words may have the defamatory sense put upon them in the complaint. This defense should be stricken out.

The fifth defense sets up specifically that the publication as set forth in the complaint is a garbled extract from the real publication. I see no reason why this defense should be specifically interposed, but it is not improper, and the only objection to it is that it is set forth with unnecessary prolixity. The material averment of this defense is that the words quoted by the plaintiff were accompanied by other statements explanatory and necessary to the correct understanding thereof; that according to their fair and ordinary meaning, as used in the newspaper when taken in their true order and context and in connection with the omitted words, the statements are true in substance and in fact I will strike out this defense in order that a more concise statement may be made within ten days.

4. The sixth and seventh defenses aver that the defendants had the right and privilege to describe the conditions of the plant of the plaintiff and its methods of doing business, and to comment upon the same in the newspaper, and that it published the statements in the belief in their truth without malice and in good faith. The gist of the claim under these defenses is that, inasmuch as the plaintiff was engaged in a public business in which the public were interested, the newspaper had the right to publish such statements as it chose about them, whether true or false, provided the newspapers honestly believed them to be true. This raises a legal question. The sixth defense sets forth a right to describe the conditions at the plaintiff's place and the right to comment as if the two rights were the same. If the only meaning of the pleader is to aver that the newspaper had the right to comment upon admitted facts as to the condition of the plant and the method of doing business, it would be unobjectionable, for fair comment is not libelous at all and requires no justification. Odgers, 32; Campbell v. Spottiswoode, 3 B. H. 769; Davis v. Shepstone, 11 App. Cas. 187; 55 L....