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Brogan v. Passaic Daily News

Decided: June 25, 1956.


On appeal from the Superior Court, Law Division, Passaic County.

For reversal and remandment -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Jacobs and Brennan. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Oliphant, J. Heher, J. (concurring in reversal). Heher, J., concurring in result.


[22 NJ Page 144] This is an appeal from a judgment of the Superior Court, Law Division, in a libel action entered on a jury verdict in favor of the plaintiff and against the

defendants for $1,000 in compensatory damages for libelous statements published by the defendants, and of no cause of action in favor of the defendants and against the plaintiff for punitive damages. We certified the case here on our own motion.

The defendant Passaic Daily News owns and publishes The Passaic-Herald News.

The libel action was based upon a publication made in the Passaic-Herald News of April 17, 1954. The defendants are the publisher of the paper and its managing editor Allen W. Smith, who wrote the article. At the time of the publication the plaintiff Brogan was a married man with a family, a member of the bar of this State and engaged in the practice of law in Clifton, a member of the Clifton City Council, and at the time of the publication he was a candidate for re-election, which election was held in May 1954. The gist of the newspaper article was that Brogan, accompanied by William Smith, was involved in a fist fight with the Dog Warden of the City of Clifton, one Stefano, on Good Friday afternoon, April 16, 1954, and that the embroglio or brawl occurred in a Clifton restaurant and bar and was the result of a political argument; that Brogan swung at Stefano, knocked him down, blackened his eye and engaged in a slug-fest until separated by onlookers; and that Brogan at 7:00 P.M. that evening went to Stefano and invited the dog warden to a tavern for a drink and that Stefano was reported to have refused or even to shake hands, forget it and keep quiet.

It was conceded at the trial that the article was palpably untrue and false, and the trial court correctly ruled it was defamatory per se. Rogers v. Courier Post Co., 2 N.J. 393, 399 (1949), and the cases cited there. While Smith denied that at the time of the publication he knew this to be a fact, nevertheless the testimony shows that both Brogan and Stefano had denied the truth of the story to members of his staff who had reported the denials to him before the paper went to press. That same afternoon Stefano made a statement to his superiors at the Clifton

City Hall giving some details of the alleged brawl. Then again, in answer to a telephone call from the paper Brogan vehemently denied the alleged occurrence.

On the following Monday morning, April 19, at 8:00 A.M., Brogan, accompanied by William Smith, a friend who is named in the libelous article, and his attorney John F. Quinn, called on the managing editor Allen W. Smith, and presented 12 affidavits, all of which indicated that Brogan was not at the place where Stefano allegedly said the fight took place. These affidavits showed that at the time in question Brogan was attending Good Friday services in his church and spent the rest of the afternoon in his office. After some discussion, Quinn served on Smith a signed demand for a retraction on behalf of Brogan.

In their answer to the complaint which set forth the article in question the defendants admitted the publication but denied the matter complained of was false, malicious and defamatory, and denied that they had refused to make a retraction and set up the following separate defenses: (1) the article was not a libel; (2) it was published in good faith believing it to be true; (3) that in the next succeeding issue of the paper on April 19, 1954 they had retracted the article complained of in as public a manner as that in which it was published; (4) that the plaintiff was a candidate for public office at the time and that the statements contained in the article were within the boundaries of fair comment and were not motivated by actual malice.

The first point of plaintiff-appellant is that the court below erred by refusing to rule, as a matter of law, that the defendants had not retracted the libelous publication and by submitting the issue of retraction to the jury, despite the fact that the alleged retraction was clearly not full and complete, thereby prejudicing the plaintiff's claim to punitive damages.

Our statute, N.J.S. 2 A:43-2, applicable to punitive damages in a libel suit provides as follows:

"The defendant, in an action for libel against the owner, manager, editor, publisher or reporter of any newspaper, magazine, periodical,

serial or other publication in this state, may give proof of intention; and plaintiff, unless he shall prove either malice in fact or that defendant, after having been requested by plaintiff in writing to retract the libelous charge in as public a manner as that in which it was made, failed to do so within a reasonable time, shall recover only his actual damage proved and specially alleged in the complaint."

There have been no cases in New Jersey as to the nature and sufficiency of a retraction under the statute, and the cases are in conflict elsewhere on the question whether the issue of sufficiency of a purported retraction of a libel is for the court or the jury. 13 A.L.R. 794; 13 A.L.R. 2 d 287; 33 Am. Jur. 285, ยง 300.

The retraction in this case published on April 19, 1954 carried the heading "'UNMITIGATED LIE!' BROGAN SAYS OF STEFANO STORY." In the body of the story there was a two-sided version of the alleged fight, setting forth Brogan's denial and the contents of some of his affidavits, and Stefano's statement that the fight had occurred. It further stated that the Herald-News story was based on the Stefano statement, which was not a fact since the paper was on the street before the Stefano statement was completed, and it then went on to state

"The Herald-News regrets any embarrassment caused Councilman Brogan, who is a candidate for reelection, and will continue to probe the story until all of the facts are brought out."

A retraction is defined as "the act of withdrawing a declaration, accusation, promise, etc." Webster's New International Dictionary (2 d ed.). It has been held that a retraction, as such, can be effected only if it is a full and unequivocal one which does not contain lurking insinuations or hesitant withdrawals. It must, in short, be an honest endeavor to repair all the wrong done by the defamatory imputation. Prosser on Torts (2 d ed.), p. 633. Such an apology must be frank and full, since a guarded and half-hearted apology will only injure the defendant's position, and a so-called apology is not ...

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