For the plaintiff-respondent, Harry Green.
For the defendants-appellants, Osborne, Cornish & Scheck (Emanuel P. Scheck and Edward J. O'Mara).
The opinion of the court was delivered by
CASE, CHIEF JUSTICE. Plaintiff is and for a number of years has been the elected representative from the tenth district of New Jersey in the national House of Representatives. In 1940 he was running for re-election, and during the summer preceding the election he addressed a joint meeting of the various organizations making up the German-American Federation of Essex County. Some of his acts, including his
attendance at that meeting, were aggressively criticized in the columns of the Newark Star Ledger. Two years later, when Hartley was again a candidate for re-election, the same newspaper published a series of news items and editorials arising in part out of the same incidents. These were made the subject of this libel suit by Mr. Hartley. The trial culminated in a verdict against the several defendants -- the Newark Morning Ledger Co., owner of the newspaper, Samuel I. Newhouse, a stockholder, director, owner and publisher of the corporation, and Philip Hochstein, managing editor -- in the amount of $24,000, being $6,000 on each of four counts. The defendants appeal from that judgment.
Appellants first argue that "the trial court erred in holding that truth is not a complete defense to a civil claim for libel." This is not precisely what the court held; it is appellants' interpretation of the legal effect of certain trial incidents consisting of two refusals by the court to charge and of a portion of the court's charge. Of the second refusal we find that the request was so framed as to constitute merely an abstract proposition of law and that consequently it was properly refused. "* * * A request to charge stating an abstract principle of law without any instruction to the jury as to its applicability is bad." Hoffman v. Trenton Times, 125 N.J.L. 450. As to the matter charged and now complained of there was no exception taken at the trial.
The first request to charge was: "The plaintiff cannot recover from the defendants for the publication of any matter which was true, no matter how defamatory, and regardless of the motives of the defendants in publishing it." The fault in appellants' position is well illustrated by the treatment in their brief of the opinion in Merrey v. Guardian Printing and Publishing Co., 79 N.J.L. 177; affirmed, 81 Id. 632. Appellants quote therefrom as follows: "The truthfulness of a libel is a complete defense in a civil action * * *;" whereas the full sentence from which that abstract is taken is: "The truthfulness of a libel is a complete defense in a civil action, but it must be pleaded fully and as to every particular, and be strictly proved to be availed of." The complaint contained nine counts, each setting up a separate newspaper publication
as the libel there sued upon. The responsive portions of the answer contained no allegation of truth. The only part of the pleading which is disclosed by our study as going to the truth of the alleged libel is the "first separate defense to all counts" which reads as follows:
"All statements of fact printed and published by defendants or any of them about the plaintiff were substantially true, except statements attributed to others. As to statements of others, defendants have no knowledge as to their truth, but quoted them with substantial accuracy."
The defendants did not plead the truth of their publications fully and as to every particular. The fact of an exception without greater specification of the excepted matter is of itself a divergence from pleading the truth fully and as to every particular. Moreover, the repetition of libelous statements made by others is not per se justifiable. Schwarz Brothers Co v. Evening News Publishing Co., 84 N.J.L. 486, 490. Whether truth is pleaded specifically or simply under the general issue, the truth of the alleged libelous words may be proved to the extent of rebutting the presumption of malice, Bingham v. Schindel, 92 Id. 502; Merrey v. Guardian Printing and Publishing Co., supra; but the request to charge must be correct in all particulars, and the present request as framed did not go to that field of law nor to a distinction between compensatory and punitive damages.
Appellants further complain of the court's refusal to charge three additional requests relating to privilege. The first two of those requests were mere statements of legal principles unapplied to the issues of the case and therefore faulty for the reason heretofore given. This is the third request in its entirety: "The defendants are not liable to the plaintiff for publishing any matter qualifiedly privileged, even if untrue and defamatory, unless the defendants published the same with actual malice." It is to be observed that this language as it stands would not be intelligible to a jury; that, on the contrary, it would be misleading and confusing. In fact, without more, it is ...