On appeal from a judgment entered on the verdict of a jury at the Camden Circuit of the former Supreme Court.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld and Ackerson. For affirmance -- None. The opinion of the court was delivered by Ackerson, J.
This is an action for libel wherein plaintiff seeks compensatory and punitive damages from the defendant for publishing in its newspapers certain defamatory articles imputing to the plaintiff interference with the administration of justice in Pennsauken Township, in the County of Camden. Defendant had a verdict of no cause of action and, from the judgment entered thereon, the plaintiff appeals.
At the times of these publications the plaintiff resided in the township aforesaid and was treasurer thereof and custodian of its school funds. He was also engaged in the insurance business in the City of Camden, and was a prominent figure in the civic and political affairs of Camden County and a member of the Division of Tax Appeals of this State.
A retraction was demanded pursuant to R.S. 2:59-2, and after defendant's failure to comply therewith, the plaintiff filed his complaint containing six counts, later consolidated into three, all based upon three articles, with bold-faced headlines, substantially alike, appearing in different issues of
defendant's newspapers, the Evening Courier and Morning Post. Each of the consolidated counts incorporates one of these articles in full and asserts that it is libelous and that the publication thereof was induced by the personal ill will of the defendant towards the plaintiff and was in reckless disregard of the plaintiff's rights.
The substance of these publications purports to be an accurate report of a verbal altercation between the Assistant Prosecutor of Camden County, Anthony Mitchell, and the Chief of Police of Pennsauken Township, Thomas Thorpe, which, it is stated, took place at the close of the State's case in the former Court of Quarter Sessions of Camden County against one Roberts for larceny. The dispute apparently arose because two accomplices of Roberts had not been reported to the prosecutor's office for indictment by the grand jury along with Roberts, but instead had been taken before the local recorder on a disorderly charge and let off with light fines.
The headlines of these articles contain inter alia, the following statements: "Officials Fix Charges, Aide Avers in Court. Tells Thorpe Township Conditions are 'Rotten'; Says Rogers 'Gives Orders.'" "Mitchell Hits Pennsauken's Crime 'Fixing.' Rogers 'Gives Orders' in Covering Cases. * * *." The following references to the plaintiff appear in the body of the articles: "Assistant Prosecutor Anthony Mitchell today charged that politicians in Pennsauken township 'covered up' criminal cases handled by the police. Mitchell named W. Leslie Rogers, Republican leader there, as one of those who 'give orders' to the police department." The following also appears: "'* * * the cases Pennsauken police bring in here stink,' Mitchell declared. 'You know this one stinks but you probably can't do anything about it on account of Les.'" Again, "'Why don't you clean up Matchtown?' Mitchell asked. 'That section is full of speakeasies. If you don't know where they are, I suggest that you ask "Pep" Jones or Les Rogers. They probably know.'"
Defendant's answer, after admitting publication, and making other admissions and denials, added five separate defenses,
all of which, except the second, pleaded various forms of qualified privilege.
Plaintiff's demand for a bill of particulars respecting three of the defenses was denied and exception taken. He thereupon filed his reply to the defendant's answer, denying the allegations of the separate defenses and reserving the right to move to strike them at or before trial as insufficient in point of law, failing to state sufficient facts, alleging conclusions of fact and law, and repetitious. Such a motion was made at the inception of the trial and denied, except as to the second defense which was stricken for the reason last stated.
Obviously the references to the plaintiff in the foregoing articles and the headlines thereto are defamatory per se. Cf. Garven v. Finch, 97 N.J.L. 329 (E. & A. 1921); McDermott v. Evening Journal Ass'n, 43 Id. 488 (Sup. Ct. 1881); affirmed, 44 Id. 430 (E. & A. 1882); Hand v. Winton, 38 Id. 122 (Sup. Ct. 1875); Johnson v. Shields, 25 Id. 116 (Sup. Ct. 1855); Kelly v. Hoffman, 137 Id. 698, 61 A. 2 d 143, 144 (E. & A. 1948); 53 C.J.S. (Libel & Slander), § 13, p. 57; Ibid., § 121, p. 199. At the trial the defendant did not attempt to prove the truth of such statements but did prove that the publications were accurate reports of what was said in the heated colloquy ...