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Herrmann v. Newark Morning Ledger Co.

Decided: January 13, 1958.

LEWIS M. HERRMANN, PLAINTIFF-RESPONDENT,
v.
NEWARK MORNING LEDGER CO., A CORPORATION OF NEW JERSEY, SAMUEL I. NEWHOUSE, PHILIP HOCHSTEIN AND TOM GALLAGHER, DEFENDANTS-APPELLANTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.

Conford

This is an action for libel based on an article published May 29, 1955 in the Newark Star Ledger , a daily newspaper published by the defendant corporation. The article was written by the defendant Tom Gallagher, a reporter for the paper. There were counter-motions by the plaintiff to strike the defenses in the answer, and by the defendants to strike the complaint, respectively. The trial court denied the defendants' motion, granted that of plaintiff, and entered interlocutory judgment of liability for compensatory damages against the defendants, directing the issues of the amount of such damages and the matter of punitive damages to be tried before a jury. At the trial, conducted before a different trial judge, the jury returned a verdict of $3,000 in favor of plaintiff for compensatory damages "and no punitive damages." This appeal by defendants raises questions concerning the correctness of the rulings on the pretrial motions and as to the admission and rejection of evidence at the trial.

The controversial article reads as follows:

"LABOR EDITOR FACES QUIZ BY UNION

By Tom Gallagher

It's all being kept very hush-hush, but according to very reliable sources Lewis M. Hermann, labor paper editor, will be called on the carpet at a special meeting of ITU Local 103 here this week to explain how he obtained the credentials he presented as a delegate at the State Federation of Labor convention in Atlantic City last week.

While the same observers regard the move with some skepticism because of the long record in local labor circles of the new 103 president's Richard Ryan, Jr., as a super-progressive, they insist it is designed to add to the embarrassment Hermann already feels as a result of a speech at the convention.

Opposed Friends

Hermann, casting close ties of friendship to the winds, vigorously opposed State Fed officers Marciante and Murphy, in a debate on adoption of a resolution supporting Mayor Carlin's determination to cost teachers and other Newark City employees taking the Fifth Amendment in Red inquiries.

He was supported by two ITU members and opposed only by Leo Feeney, president of the Allied Printing Trades Council.

The same observers say the move to look into his credentials ostensibly to disavow his speech at the convention, is actually designed by critics within the union to unload him even though they do not disagree with his convention stand. They point out that Herrmann has been one of the most active leaders in one of the two factions which for years have divided the ITU not only in this state but nationally, and his opponents regard his present predicament as a heaven sent opportunity.

Faces Quiz

Insiders indicate he will be questioned about previous as well as his 1955 credentials. They say he attended some conventions as a delegate from AFL Office Workers Local 32, and this year with the imprimatur of the State Printers League. He was not entitled to League credentials, they say, because he has not worked at the craft in years.

His inquisitors in 103, it is reported have requested a copy of the official minutes of the convention as transcribed by a private agency the State Federation retains for that purpose.

The complaint recites that plaintiff is and was when the publication took place editor and publisher of a labor paper, the New Jersey Labor Herald , and an active member of Newark Typographical Union No. 103 and the Union Printers League of New Jersey; that he was a delegate from said Union Printers League to the State Federation of Labor convention at Atlantic City in May 1955; and that he was not at said times a member of Office Workers Union, Local No. 32, affiliated with the American Federation of Labor, and did not at said times attend any conventions as a delegate of that union. The complaint charges the article to be false and defamatory "of and concerning the plaintiff as a labor representative, labor paper editor and individually." There is no allegation that the article was defamatory in any other specific respect.

The answer of the defendants admits the publication, and, so far as presently material, sets forth as separate defenses that: (first) the language published does not "admit of the defamatory sense averred to in the complaint"; (sixth) the alleged statements were true and within the bounds of fair comment; and (seventh) that the words and statements were true "except that through a typographical error

AFL Office Workers Local 32, was designated instead of Office Employees International Union Local #20, formerly Local #19840." After exchange of interrogatories and answers thereto between the opposing sides, plaintiff moved, in effect, to strike the defenses in the answers for insufficiency in law and for entry of judgment interlocutory as to liability in favor of plaintiff, and defendants moved to strike the complaint for the reasons, inter alia , that the complaint (1) "fails to set forth alleged false portions of the said libel," (2) is not libelous per se and "fails to set forth any innuendoes or contrary meaning to that set forth in the article," and (3) "is not defamatory per se and no special damages are shown." The trial court rendered an oral opinion disposing of the cross-motions. It denied the defendants' motion summarily. On the plaintiff's motion it held: (1) the complaint sufficiently stated a claim upon which relief could be granted; (2) to the extent that the defenses relied upon truth of the publication they were deficient because falsity "of a part of the libel" was admitted in the answer and truth must be pleaded as to the entirety of the publication; (3) that the publication was a libel per se , "particularly" in respect to the matter of plaintiff's credentials to attend the convention, leaving open only the question of assessment of damages by a jury; and (4) that the other defenses bore only upon damages, not liability. Interlocutory judgment in the tenor recited above was accordingly entered.

The jury trial proceeded upon the basis of a pretrial order entered the day the motions were decided in which plaintiff's contention as to the defamatory nature of the publication was that the article charged "that plaintiff improperly obtained credentials as a labor delegate, that the manner of obtaining the credentials was to be the subject of inquiry," that the article by reason thereof held him up to shame and ridicule and "injured his reputation as a labor paper editor." There was no reference to the statements in the article pertaining to plaintiff's position on the resolution concerning ousting Newark city employees.

The facts relative to the admission and rejection of evidence at the trial will be referred to infra , when the pertinent legal questions are discussed.

We note, preliminarily, that our study of this appeal elicits a number of legal questions not raised in the arguments. We deal only with issues argued or which have impressed us as essential for consideration and determination in the interest of substantial justice both upon this appeal and upon the retrial which our determinations will entail.

I.

Defendants argue, first, that the trial court erred in holding that the publication was libelous per se , using that phrase in the sense of libelous on its face as a matter of law. The substance of their argument is confined to the "sting," or alleged derogatory imputation of the article, in respect of the investigation of plaintiff's credentials as a convention delegate. We must here point out that at the trial of the cause and in the plaintiff's brief upon this appeal considerable evidence and argument, respectively, were adduced addressed to the theory, absent from the complaint, pretrial order and interlocutory adjudication, that the publication was defamatory in imputing to plaintiff a position on the resolution relative to the ousting of Newark city employees "taking the Fifth Amendment in Red inquiries" which "associated him with Communism." As defendants have made no specific point as to the deficiencies of the complaint if taken to charge defamation in that respect, we reserve the discussion of that question for our consideration (infra , V) of the extent of the issues to be litigated on the remand.

As to the subject of credentials, defendants contend the article does not necessarily impute wrongful or illegal conduct to the plaintiff, that there are no innuendoes in the complaint, and that a jury could conclude it meant only that there was a technical deficiency in plaintiff's credentials to attend the convention. However, it is the function of

the court, not the jury, in the first instance to determine whether the language used is reasonably susceptible of a defamatory meaning. Leers v. Green , 24 N.J. 239, 255 (1957). Only if the language is ambiguous in the sense of being reasonably subject to either an innocent or a defamatory meaning, as determined by the court, does the jury decide as a question of fact whether the readers of the publication understood the language in its defamatory sense. Ibid. , 24 N.J. at page 253; 3 Restatement, Torts , § 614; 1 Harper and James, Law of Torts (1956), § 5.29, p. 463. But where the publication is not reasonably susceptible of a non-defamatory signification it is libelous as a matter of law and the declaration of that conclusion is obviously for the court alone. Utah State Farm Bureau Federation v. National Farmers Union Service Corp. , 198 F.2d 20, 33 A.L.R. 2 d 1186 (10 Cir. 1952); Wright v. Farm Journal , 158 F.2d 976 (2 Cir. 1947); and see Washington Post Co. v. Chaloner , 250 U.S. 290, 293, 39 S. Ct. 448, 63 L. Ed. 987; Rogers v. Courier Post Co. , 2 N.J. 393, 404 (1949). Thus, if the tenability of the construction of the article advanced by defendants were substantively advantageous to their defense, it would be for the court in the first instance to declare whether the language reasonably could sustain it. However, there is doubt as to the legal materiality of the version submitted. In essence, defendants argue that under their interpretation of the article no "immoral" or "illegal" conduct is imputed to the plaintiff.

But it was not requisite that the article should necessarily impute illegality or immorality to plaintiff to constitute defamation. A common classification of slanderous imputations actionable per se is that as to those which affect another's business, trade, profession or office. 3 Restatement, Torts , § 569, comment (e), p. 168; 1 Harper and James, op. cit., supra , § 5.12, p. 381; Ramsdell v. Pennsylvania R. Co. , 79 N.J.L. 379 (Sup. Ct. 1910); Feder v. Herrick , 43 N.J.L. 24 (Sup. Ct. 1881); Annotation, 6 A.L.R. 2 d 1008, 1020 (1949). A fortiori is such a

written imputation libelous. The language in question must be construed according to the fair and natural meaning which will be given it by reasonable persons of ordinary intelligence. Dressler v. Mayer , 22 N.J. Super. 129, 135 (App. Div. 1952). The publication here in question plainly imputes that plaintiff had for years and in 1955 attended conventions with improper or undue credentials and was to "be called on the carpet" to defend himself on the charge before a union local. This, we think, did subject him "to a loss of the good will and confidence entertained towards him by others," Leers v. Green, supra (24 N.J. at page 251), specifically those who knew him as prominent in the labor movement of the state. This would be so regardless of plaintiff's subjective behavior in obtaining the credentials. The mere imputation that he was not entitled to them impugns his status as a labor leader. A harmless interpretation of the language was not reasonably inferable. We therefore hold the trial court correctly determined the publication to be libelous as a matter of law in this regard.

II.

Defendants' second, and, we think, well-founded, contention is that the trial court took too narrow a view of the law concerning the pleading of truth as a defense to a complaint of libel. As noted above, defendants pleaded the truth of the publication except only in respect of the identification of the office workers union local which the article said plaintiff had represented as a delegate in prior years. Solely because of the concession in the answer as to the error in that regard, the trial court struck the defense of truth and also the defense of fair comment because of the constituency of truth as a part of that defense. In support of its action the trial court invoked the principle "that truth must be pleaded in its ...


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