On motion to strike complaint.
Foley, J.c.c. (temporarily assigned).
This motion to strike plaintiff's complaint, charging libel, is grounded upon the contention that it fails to set forth a claim for relief.
Plaintiff is the widow of Lloyd C. Stickles to whom she was married on October 24, 1917. Defendant admittedly was his mistress for many years and in his later days was the author of the writings upon which the action is brought. They are four in number and are pleaded in five counts, falsity and malice being alleged in each.
The complaint is attacked broadside upon the assertion that it is in fact an action for alienation of affections redressed as a libel action for purposes of avoiding the barrier of the "Heart Balm Act," N.J.S. 2 A:23-1. This approach entirely overlooks the nature of the mischief which the Legislature undertook to remedy in revising the common law by this enactment.
In Grobart v. Grobart , 5 N.J. 161, at page 166 (1950), the court, holding actionable a conspiracy to injure the plaintiff in her marital relations with her husband, to deprive her of her rights in his property by means of fraud and deceit, and inter alia to impair her good name and reputation, said:
"In ascertaining the scope of actions the abolishment of which the 'Heart Balm Act' was intended to accomplish, we are aided in our inquiry by the broad principles said to underlie the enactment as
expressed in the preamble thereto. A preamble may be resorted to for assistance in arriving at the true intention of the lawmakers where doubt arises as to the construction of the statute. [Citing Blackman v. Iles , 4 N.J. 82 (1950).] It is evident from a reading of the preamble thereto that the purpose of the aforesaid statute is to abolish certain causes of action, i.e. , alienation of affections, criminal conversation, seduction and breach of contract to marry, arising out of and dependent upon the marital relation, which causes of action, as stated in the preamble, have subjected our people to 'extreme annoyance, embarrassment, humiliation and pecuniary damage.' Experience has shown that these actions have been abused by unscrupulous persons and have served as vexatious vehicles in the perpetration of fraud. This is the evil the legislature intended to remedy by the enactment of the 'Heart Balm' statute."
And again, 5 N.J. , at page 167:
"* * * We cannot conceive that the statute was designed to deprive plaintiff of redress for such wrongs merely because they are related or incidental to the marital relation. To so conclude would result in placing a strained construction upon the act far beyond the mischief sought to be remedied and cast grave doubts upon its constitutionality, at least to that extent. The intention of the lawmakers was to prevent extortion and blackmail that often accompanied the institution of the actions specifically outlawed by the statute but it was not intended to reach further and prohibit all actions involving property and personal rights not subject to those abuses in which actions married persons are concerned."
In the present case it is quite true that the offensive writings may have been part and parcel of the defendant's invasion of the marital preserve and so would have been evidential in an action for alienation of affections. But it does not follow that since the right to recover damages in such form of action is proscribed they may not suffice to state a claim for relief which exists independently of such action. Alienation of affections struck at the conjugal relationship, and the various means to accomplish it included libel. But libel is itself a wrong the effects of which are measured in terms of disfavor of the repute of the injured individual. Thus it is held that a valid claim of libel is not debarred by reason of the fact that coincidentally it might have supported the now abolished action for alienation of affections.
It is next contended that the complaint is faulty for failure to plead special damages. Supporting argument for this proposition is buttressed by respectable authority adjudicative of slander actions: Ogden v. Riley , 14 N.J.L. 186 (Sup. Ct. 1833); Bartow v. Brands , 15 N.J.L. 248 (Sup. Ct. 1836); Davenport v. Patteson , 98 N.J.L. 65 (Sup. Ct. 1922); Shaw v. Bender , 90 N.J.L. 147 (E. & A. 1916). But the rule is otherwise in libel cases. In Hand v. Winton , 38 N.J.L. 122 (Sup. Ct. 1875), Chief Justice Beasley pointed out that in an action for libel any defamatory matter is per se libelous and no special damage need be proved.
The defendant also urges that the complaint should be stricken because its several counts fail to set forth matter ...