Weinrib v. Ohmer Register Co., Inc.

• Decision Date: 29 May 1939
• Citation: 122 N.J.L. 524,6 A.2d 489
• Parties: WEINRIB v. OHMER REGISTER CO., Inc., et al.
• Court: New Jersey Supreme Court

6 A.2d 489

122 N.J.L. 524

WEINRIB

v. OHMER REGISTER CO., Inc., et al.

Supreme Court of New Jersey.

May 29, 1939.

Action by Morris Weinrib, individually, and trading as Store Fixture Exchange, against the Ohmer Register Company, Inc., a corporation of the State of Ohio, and Simon Urdang, jointly, severally and in the alternative, for defamation. On motion of the corporate defendant to remove cause to the United States District Court for the District of New Jersey on ground of diversity of citizenship.

Motion denied.

Before HEHER, J., at the Passaic Circuit.

Burton B. Wiener, of Paterson, for plaintiff.

Evans, Smith & Evans, of Paterson, for petitioning defendant.

HEHER, Justice.

The gravamen of the complaint is the "speaking and publishing" by defendant Urdang, "acting" as the "agent and servant" of his co-defendant—it is also alleged that he was the company's "authorized agent * * * for the purpose of furthering and fostering sales of cash registers manufactured by" it? "in the presence and place of business" of others, "including certain customers" of plaintiff, of certain "false, scandalous and defamatory words of and concerning the plaintiff * * * for the purpose of injuring" him "in his good name, integrity, fame and reputation for honesty and reliability" in his business; and the corporate defendant's petition for removal, under section 28 of the Federal Judicial Code, 28 U.S.C.A. § 71, is grounded in the claim that the "litigation presents a separable controversy as to" it, and "properly could be fully determined without the presence of" the individual defendant, and the cause is therefore removable for diversity of citizenship.

More specifically, it is averred that the complaint does not allege that the corporate defendant authorized the uttering by its co-defendant of the pleaded defamatory words, or that it "ratified" his "acts;" that, under the laws of New Jersey, "the mere fact that a person is employed by another does not furnish any basis to find as a "fact that he has implied power to make false and scandalous accusations;" that Urdang, a citizen of New Jersey, "is wrongfully and fraudulently joined as a defendant" with the petitioning defendant "for the sole purpose of preventing a removal" of the cause to the Federal Court, and such joinder "was merely a sham or device to prevent an exercise of such a removal by this defendant;" that "plaintiff well knew all along that this defendant was not in any degree whatsoever responsible for the alleged action of the defendant" Urdang, and was "not guilty of any joint tort and was not present when defendant" Urdang "allegedly spoke the false, scandalous and defamatory words, and that this defendant did no act or deed which caused or contributed to any damage alleged to have been suffered by the plaintiff."

The rule is invoked that the "power to make false and slanderous accusations" is not to be implied from the relationship of master and servant (citing Peterson v. Crossley, 185 A. 926, 14 N.J.Misc. 501, affirmed 117 N.J.L. 525, 189 A. 624); and it is argued that the complaint on its face discloses an "improper joinder," and that the allegations of the petition for removal, which "must be taken by a state court as true," reveal the joinder as "a sham or fraudulent device to prevent a removal." I do not yield the argument so made.

Apart from the cited allegations of the complaint, it is pleaded that the utterances complained of "were false and malicious and were spoken by the said" Urdang "as the agent and servant of" the corporate defendant, "for the purpose of so injuring * * * plaintiff in the operation of his said business that it," the corporate defendant, "would secure the sales which might otherwise go to its competitor, the said plaintiff."

While not phrased with technical nicety, these averments, if established by evidence, are sufficiently broad to sustain a judgment against the corporate defendant for the averred tortious act of its servant. And it was proper to join the master and servant as defendants in the one suit. See Hoboken Printing & Pub. Co. v. Kahn, 59 N.J.L. 218, 35 A. 1053, 59 Am.St.Rep. 585; Evening Journal Ass'n v. McDermott, 44 N.J.L. 430, 43 Am.Rep. 392; Brokaw v. N. J. R. & Transportation Co., 32 N.J.L. 328, 90 Am.Dec. 659. The legal sufficiency of the complaint and the procedural propriety of the joinder are questions of state law. Chicago, R. I. & P. R. Co. v. Schwyhart, 227 U.S. 184, 33 S.Ct. 250, 57 L.Ed. 473; Chicago, R. I. & P. R. Co. v. Whiteaker, 239 U.S. 421, 36 S.Ct. 152...