Weston Elec. Instrument Co. v. Benecke

• Decision Date: 04 March 1912
• Citation: 82 A. 878,82 N.J.L. 445
• Parties: WESTON ELECTRICAL INSTRUMENT CO. v. BENECKE. WESTON v. SAME.
• Court: New Jersey Supreme Court

82 A. 878

82 N.J.L. 445

WESTON ELECTRICAL INSTRUMENT CO.

v. BENECKE.

WESTON

v. SAME.

Court of Errors and Appeals of New Jersey.

March 4, 1912.

(Syllabus by the Court.)

Error to Supreme Court.

Action by the Weston Electrical Instrument Company against Adelbert O. Benecke and by Edward Weston against the same defendant. Judgments of nonsuit, and plaintiff in each case brings error. Reversed, and new trial ordered.

Franklin W. Fort and Alfred F. Skinner, for plaintiffs in error.

Riker & Riker, for defendant in error.

TRENCHARD, J. These two writs of error bring up for review judgments of nonsuit in actions against Adelbert O. Benecke, one at the suit of the Weston Electrical Instrument Company, and the other at the suit of Edward Weston.

The suits were, by consent, tried together before the circuit court judge, sitting without a jury, at the Essex circuit, and have been here argued together. The actions were for libel. The article alleged to be libelous was published in the Newark Morning Star and the Newark Evening Star. The declarations averred that the defendant below, Dr. Benecke, published the article, or caused it to be published.

The evidence, when the plaintiffs rested, and at the time the nonsuit was granted, tended to show the following matters of fact: The article in question was written by Mr. Travis, a newspaper reporter, from information obtained, partly from one Fischer, and partly from a bill of complaint which was subsequently filed by Dr. Benecke against the plaintiffs in the court of chancery. The bill of complaint came into the possession of the reporter three days before it was filed in Trenton; but from what source he received it does not appear. It was filed September 20, 1907. The article in question was published the same day. After the article had been written by Mr. Travis, it was "set up," the "proof" corrected, and a new proof was made. On the morning of September 20th, or the afternoon of the day before, Mr. Travis, under the guidance of Mr. Fischer, went with this revised proof to Dr. Benecke's office, and was introduced to him. Mr. Fischer said: "Dr. Benecke, this is Mr. Travis, who has gotten up this article," and further stated that Mr. Travis was "a newspaper man who not only represented the Evening Star, but a number of New York afternoon papers and the Associated Press." Thereupon Dr. Benecke took the "galley proof" of the article, read it, corrected the spelling of a proper name, substituted or erased a word or two, and handed it back to the reporter with the remark, "That is all right." After the article had been thus corrected by the defendant, and at the time or immediately before it was returned to the reporter, Mr. Fischer said to the reporter, in the presence of the doctor, "You can put this in the Moraing Star also," and asked "some other questions about sending it to the New York papers." The reporter answered that "the Morning Star picked up the type used in the afternoon edition." After some further conversation, not necessary to detail, the reporter departed, made the corrections in the type noted by Dr. Benecke, and "released" the article—that is to say, ordered it printed—and it appeared in the Evening Star of September 20th and the Morning Star of September 21st.

The motion for nonsuit was made by the defendant at the close of the testimony upon the part of the plaintiffs. Concerning it, the record is as follows: "Mr. Riker: I move for a nonsuit in both of these cases, on the ground that there has not been shown any authorization of the publication of this document, under the evidence, by Dr. Benecke. (Motion argued.) The Court: I think I may assume that there is no case that goes beyond the cases referred to; if there had been, counsel no doubt would have found it. Neither of the cases cited goes far enough; and the question, therefore, is left to be determined by the view which seems most just, and most in accordance with the spirit of the authorities. My conclusion is that enough has not been shown to bring home to the defendant the publication. It is not necessary for me to elaborate upon that; but that conclusion leads to a nonsuit, which I accordingly grant in each case." To this ruling an exception was duly taken, and error is assigned thereon.

We are of opinion the nonsuit was erroneous. It is well settled that one who causes or procures a libel to be published in a newspaper is responsible therefor. 25 Cyc. 429; 18 A. & E. E. of L. (2d Ed.) 1066; Newell on Slander and Libel (2d Ed.) 244; Odgers on Libel and Slander, *157; Hazy v. Woitke, 23 Colo. 556, 48 Pac. 1048; Washington Gaslight Co. v. Lansden, 172 U. S. 534, 19 Sup. Ct. 296, 43 L. Ed. 543; Partes v. Prescott, L. R. 4 Exch. 109, 38 L. J. Exch. 105; Reg. v. Cooper, 8 Q. B. 533, 55 E. C. L. 533, 15 L. J. Q. B. 206.

The rules as to nonsuits are the same, and have the same application, when the trial is by the court as when it is by...