On appeal from the Mercer County Circuit Court.
For the plaintiff-appellant, Frank I. Casey.
For the defendant-respondent, Trent Broadcasting Corporation, Ernest S. Glickman (John J. Connell, of counsel).
The opinion of the court was delivered by
BURLING, J. There is involved in the decision of this appeal the law applicable to defamation of character by radio. It presents a case of first impression in this state. The gist of the cause of action against the defendant-respondent is found in the answer to the following question:
Is a radio broadcasting company which leases its facilities, liable for a defamatory statement during a radio broadcast by a person hired by the lessee and not in the employ of the radio broadcasting company, the words being carried to the radio listener by its facilities?
Adjectively, the question arises in the following manner: An action for defamation of character by means of the radio was initiated by the plaintiff in the Mercer County Circuit Court. This is an appeal fro an order made by the Mercer County Circuit Court Judge striking out the third count of the complaint pursuant to a motion made by the defendant Trent Broadcasting Corporation upon the ground that the count set forth no cause of action. The plaintiff failed to exercise the leave granted to him by the court in the following language:
"Here an actual speaking of the words complained of consumed a period of time of some three or four minutes and is therefore a factual question to be determined by a jury as to whether this defendant used due care under all of the circumstances then existing.
"This complaint must allege a want of due care on the part of the defendant, Trent Broadcasting Corporation. It fails to do so.
"Permission, however, is granted to amend the third count of the complaint accordingly within fifteen days of the time of the filing of this memorandum. If not amended and filed, the complaint as to this defendant, will be stricken."
In this count it is alleged that this defendant was the owner and operator of radio station known as WTTM located in Trenton, New Jersey, from which broadcasts emanated and were published and circulated to listeners through machines and equipment supplied by the defendant; that it let, rented and permitted its radio facilities to be used by the co-defendant Trentonian Publishing Company and the co-defendant Arthur D. Hoffman, the alleged editor and servant of the Trentonian Publishing Company, for the making of a certain news broadcast during which statements were made by Hoffman on the 17th day of October, 1946, concerning the plaintiff which are set up verbatim in the pleading. The plaintiff was a public official of the City of Trenton and occupied the office of Deputy Commissioner of Public Safety. The complaint alleges the broadcasted matter reflected upon the integrity of the plaintiff as such official.
The remarks are defamatory per se as they impute directly and by innuendoes malfeasance upon the part of a public official. Garven v. Finch (Court of Errors and Appeals, 1921), 97 N.J.L. 329; Reilly v. Curtiss (Supreme Court, 1912), 83 Id. 77. They are actionable when thus spoken or written, Shaw v. Bender (Court of Errors and Appeals, 1916), 90 Id. 147, and a suit will lie without proof of special damage, Walsh v. Trenton Times, Inc. (Court of Errors and Appeals, 1939), 124 Id. 23.
The count also contains the following allegations:
"5. Copies of the said remarks, comments, observations and criticisms were available to the said Trent Broadcasting Corporation prior to their publication on and over the radio facilities of said defendant corporation.
"6. Servants and agents of the defendant corporation were present and heard the aforesaid remarks, comments, observations and criticisms, read, spoken and published and said defendant corporation thereby published and adopted the said remarks, comments, observations and criticisms.
"7. The said defendant corporation, Trent Broadcasting Corporation, well knew the position of respect and esteem occupied by plaintiff at that time, and by means of the foregoing, wickedly and maliciously contrived to take away plaintiff's good name, fame and credit and to bring him into public infamy and disgrace."
The complaint is set forth in three counts -- the first is against the defendant Arthur D. Hoffman, the second against the defendant Trentonian Publishing Company and the third count is against the defendant Trent Broadcasting Corporation. ...