Swede v. Passaic Daily News

• Decision Date: 02 July 1959
• Docket Number: No. A--136,A--136
• Citation: 153 A.2d 36,30 N.J. 320
• Parties: Chester R. SWEDE and Raymond DeLuca, Plaintiffs-Appellants, v. PASSAIC DAILY NEWS, a corporation of the State of New Jersey, impleaded with another, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 320

30 N.J. 320

153 A.2d 36

Chester R. SWEDE and Raymond DeLuca, Plaintiffs-Appellants, v. PASSAIC DAILY NEWS, a corporation of the State of New Jersey, impleaded with another, Defendant-Respondent.

No. A--136.

Supreme Court of New Jersey.

Argued June 5, 1959.

Decided July 2, 1959.

Harry Green, Deal Park, for plaintiffs-appellants.

Walter D. Van Riper, Newark, for defendant-respondent (Van Riper & Belmont, Newark, attorneys).

The opinion of the court was delivered by

SCHETTINO, J.

Plaintiffs appeal from a final judgment of the Superior Court, Law Division, dismissing plaintiffs' complaint for libel against defendant, The Passaic Daily News, and from an order denying plaintiffs' motion for a new trial and to set aside the dismissal of the complaint. This defendant's motion was made after plaintiffs rested, having submitted evidence only on the issue of liability; R.R. 4:42--2(b). The complaint against defendant Fitzgerald was later dismissed by consent and with prejudice. While the appeal to the Appellate Division was pending, we certified pursuant to R.R. 1:10--1(a).

At the time of the alleged libels plaintiffs were patrolmen in the City of Clifton police department and had finished first and second, respectively, in the Civil Service examination for promotion to sergeant. The City of Clifton has a council-manager form of government. Fitzgerald was the City Manager of Clifton.

In the evening of December 27, 1956 the Clifton city councilmen met in a special session to consider, primarily, fiscal matters. Fitzgerald attended the meeting after leaving a board of health Christmas party at which he admitted he had two drinks. Fitzgerald was asked by two of the councilmen why he was planning to bypass plaintiffs and appoint two others to the rank of sergeants. Plaintiffs' complaint alleges that Fitzgerald responded:

'You want to know why they (meaning this plaintiff, Chester R. Swede, and Raymond DeLuca) were skipped? I'll tell you why. Insubordination that's the reason. I should have fired them (meaning this plaintiff, Chester R. Swede, and Raymond DeLuca).'

The report of this statement was published in its newspaper by defendant. The Passaic Daily News (hereinafter 'defendant') on December 28, 1956. It was also mentioned in the articles written concerning the aftermath of the incident on eight subsequent occasions.

We deem it necessary to set forth at length the news articles referred to by plaintiffs. In the initial news article the only reference to the alleged defamatory statement was the following:

'Brogan said 'politics' had been claimed in the skipping of Swede and DeLuca. He then asked Fitzgerald why the men had been passed over.

"You want to know why they were skipped? ' Fitzgerald said, 'I'll tell you why. Insubordination, that's the reason. I should have fired them.''

A news report published by defendant on January 3, 1957, entitled 'Censure Attempt Fails Over Police Promotions,' recited, in part:

'The Clifton City Council last night rejected several attempts to censure John L. Fitzgerald, retiring city manager, for his surprise police promotions of last week. It also decided to proceed with an investigation of insubordination charges made by Fitzgerald against two patrolmen who were bypassed for promotions.

'The resolution proposing that Fitzgerald's charge that Swede and DeLuca had been insubordinate be investigated was referred to the legal department. Edward Johnson, city counsel, was instructed to report at the next meeting what procedure should be followed in such an investigation.

"I want an investigation of the insubordination charges,' Zwier said. 'If these men were insubordinate, they should have been brought up on charges long ago.'

'No Details Given.

'Zwier maintained that all charges of insubordination should be brought to the council's attention.

'Last week, Fitzgerald said he had not promoted Swede and DeLuca because they had been insubordinate. Pressed for an explanation, he failed to do so.'

On January 23, 1957 defendant reported, in pertinent parts:

'John L. Fitzgerald, retiring Clifton City manager, who is vacationing in Florida, has denied ever stating that he should have fired two Clifton patrolmen who were bypassed in promotions to sergeant, it was learned today.

'His denial is contained in a letter to the Clifton City Council which was received on Monday.

'The letter reportedly also says that Fitzgerald will consider engaging counsel if the City Council does not discontinue 'threatening' him.

'During the last few weeks, members of the council have demanded that an investigation be made of Fitzgerald's statement that Patrolmen Raymond DeLuca and Chester R. Swede had been insubordinate and 'should have been The manager made the statement at a regular council session December 27. At that time, he refused to elaborate when asked to do so by councilmen.

'Miss Edith M. Marrion, city clerk, this morning admitted receipt of the letter. She said, however, she could not release it until she had been authorized to do so by a majority of the City Council.

'Fitzgerald created a storm in the council when he made the statements concerning DeLuca and Swede.' (Emphasis added.)

On January 29, 1957, in reference to the letter of Fitzgerald, defendant reported in its newspaper that at the Clifton council meeting the night before that the following took place 'Nothing in this opening paragraph that he has followed reports of council meetings in The Herald-News since his departure late in December, Fitzgerald wrote:

"Please be advised that I have never charged Patrolmen (Raymond) DeLuca or (Chester) Swede with insubordination nor did I ever make the remark they should be fired.'

'The promotions angered several members of the council, but they have stuck. The council is considering investigation into the charges which Fitzgerald now says he did not make against DeLuca and Swede, both skipped when Hornby and Shockner were named.'

On February 6, 1957 in an article subtitled 'Governing Body in Accord on Resolution: Will Absolve Swede, DeLuca of 'Charges," the newspaper stated:

'The Clifton City Council last night decided to censure John L. Fitzgerald, retiring city manager, for making statements he later denied. At the same time, it absolved two patrolmen of insubordination charges made by Fitzgerald.

'Fitzgerald in Florida.

'After being pressed by Councilmen William R. Brogan and Stanley Zwier against dropping the action, the entire council informally agreed to adopt a resolution at the next meeting.

'The resolution will censure Fitzgerald, now vacationing in Florida, for stating and later denying he had ever said that Patrolmen Raymond DeLuca and Chester Swede had been insubordinate and 'should have been fired'. It also will clear that men of any charges.'

On March 6, 1957 defendant's report, entitled 'Fitzgerald Censure Resolution Before Council in Two Weeks,' stated:

'After failing to act on the matter at its last meeting, the Clifton City Council last night decided to censure John L. Fitzgerald, retiring city manager, for making a verbal charge of insubordination against two patrolmen and later denying he had made the statement.

'In a resolution to be drawn by the legal department, the council also ordered that the patrolmen, Raymond G. DeLuca and Chester R. Swede, will be exonerated of any insubordination charges. The resolution will be acted on at the March 19 meeting.

'Statements Denied.

'DeLuca and Swede were bypassed in promotions to sergeant in February, 1955. At his last official meeting before going to Florida at the end of last December, Fitzgerald charged the men had been skipped because they had been 'insubordinate'. He said the men 'should have been fired'. Fitzgerald retired as city manager as of March 1 and was succeeded by William Holster. Fitzgerald, still in Florida, has denied making the statements in a letter to the council.' (Emphasis added.)

This article particularly reported many favorable comments made by the councilmen regarding plaintiff, such as a statement that 'I'm cnvinced that Swede and DeLuca are fine patrolmen and are doing a fine job for the city.' On March 20, 1957, in an article entitled 'No Action Taken on Fitzgerald Censure,' it was stated:

'The Clifton City Council later failed to act on a resolution censuring John L. Fitzgerald, retired city manager, and exonerating two patrolmen of charges that they had been insubordinate.

'The resolution would have censured Fitzgerald who is vacationing in Florida, for a statement he made at a meeting in December that Patrolmen Raymond G. DeLuca and Chester R. Swede were bypassed in promotions to sergeant because they had been 'insubordinate' and 'should have been fired.' Subsequently in a letter to the council, Fitzgerald denied making the statement.'

On April 3, 1957 defendant published an article reporting that action on the proposed censure of Fitzgerald was postponed again at the council meeting of April 2, 1957, and said:

'The measure, which is not expected to get sufficient support for passage, would censure Fitzgerald for a remark he made at a meeting last December in which he charged DeLuca and Swede with 'insubordination' and said 'they should have been fired'. The official later denied making the statement. Fitzgerald is expected back soon from an extended Florida vacation.

'Fitzgerald made his remark in explaining why DeLuca and Swede had been bypassed in promotions to sergeant.

'The resolution also would exonerate the patrolmen of any charges.'

On April 18, 1957 the newspaper reported that the counsel had voted 4--3 to censure Fitzgerald and to exonerate plaintiffs of any wrongdoing. In the course of this report defendant stated:

'Fitzgerald had been citicized for a statement he made at a council meeting last December before he left for Florida. Asked why DeLuca and Swede had been bypassed in promotions, Fitzgerald replied that they had been 'insubordinate' and 'should have...