Civil action. On motion addressed to the amended complaint.
William A. Smith, J.s.c. (specially assigned).
In this case I have previously decided a motion on the part of the defendants for dismissal and summary judgment; an opinion was filed by me and permission given to the plaintiff, Chandless, to file an amended complaint, which has been done; and now a motion has been made and submitted to me, wherein the defendants move to dismiss under Rule 4:12-2(e), but as matters outside the pleadings are presented, the motion is to be treated as a motion for summary judgment.
To save repetition and setting forth the long articles referred to in the two counts of the amended complaint, I am referring to the opinion on the original motion, reported in 24 N.J. Super. 73, 93 A. 2 d 651 (Law Div. 1952), and also the record in this case.
The present amended complaint consists of two counts. The right was reserved to the defendants to make such motions addressed to the amended complaint as they deemed advisable. The first count of the complaint charges as libelous an article published on March 26, 1951. The second count charges as libelous an article published March 29, 1951. These articles were included in the original complaint. Special damages are not sought under the
amended complaint or specifically stated as required by Rule 4:9-6, nor does the plaintiff charge actual or express malice. The record shows that the plaintiff, when specifically asked as to claims for special damages, stated that he was not going to allege special damages.
In approaching the consideration of the questions involved on this motion, we must consider the relationship as to the political controversies which gave rise to the articles published. This relationship is shown by the opinion on the motion addressed to the original complaint, reference to which is made, and suffice it to say that a controversy existed between the plaintiff, who was a political leader of one faction but not a candidate, and the defendants, in a primary election campaign, and that the defendants were supporting another faction in the same primary. The individual defendants were connected with the corporate defendant, which was a leading newspaper in the community where the parties live. No claim is made that the individual defendants were actuated by any motive other than support of the views expressed by the paper on the merits of the respective candidates in the primary.
The charge as to the article referred to in the first count is that it is libelous per se. In passing on this question, it must be borne in mind that, where newspapers are dealing with public questions and elections and there is no express malice, fair public criticism is for the public good, so that the public may pass upon the issues and the candidates, and also pass upon the support to be given to the factions involved. This court, on the original motion, in passing on this question of whether the articles were libelous per se , under circumstances such as are here involved, relied on the determination in the case of Dressler v. Mayer , 22 N.J. Super. 129, 91 A. 2 d 650 (App. Div. 1952), wherein Judge Eastwood in his opinion quoted from 53 C.J.S. under Libel and Slander , § 13, page 59, which need not be repeated here.
The force and effect of the article set forth in the first count is not to charge the plaintiff with the innuendo as set forth in paragraph 7 of the complaint, but is to charge what
went on when the complainant's faction was in office. The charge of the innuendo must be supported by the text of the published article and whether it does or not is for the court to decide. The addition of the innuendo does not make the article libelous as there is no special damage alleged.
The second count of the complaint falls in a somewhat different category. The article set forth and claimed libelous was published March 29, 1951 and is a publication of a communication by the plaintiff to the defendant, John Borg, wherein a demand is made that the communication be given as much publicity as the article to which it replies, which article was published in the Bergen Evening Record on March 26, 1951, and forms the basis of the first count of the amended complaint. The article of March 29, 1951, which forms the basis of the second count, sets forth the letter of the plaintiff verbatim and the publisher complies with the plaintiff's demand, namely, "* * * I shall expect you to publish this letter in full with equivalent prominence in your next issue." The letter repeats many of the statements contained in the article of March 26, 1951 about which the plaintiff writes. Interspersed in the article of March 29, 1951, are comments by the editor on the pertinent parts of the letter. The statements set forth by the plaintiff in his letter from the article of March 26, 1951 cannot be the basis of a libel charged against the defendants, as the plaintiff demands the publication of his letter in reference to it. Much of the ...