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Mosler v. Whelan

Decided: January 28, 1958.

CHARLES MOSLER, PLAINTIFF-APPELLANT,
v.
FRANCIS J. WHELAN, DEFENDANT-RESPONDENT



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

Conford

[48 NJSuper Page 496] This is a libel action. There was a jury verdict in the Law Division for the defendant. Plaintiff's appeal is from the consequent judgment and the denial of a motion for a new trial. The most substantial errors assigned are the refusals of the trial court to enter an interlocutory judgment in favor of the plaintiff on the issue of liability or to instruct the jury that the publication complained of was "libelous per se." We have concluded that the publication in question was defamatory on its face and libelous as a matter of law, and that the failure of

the trial court to recognize this requires a reversal of the judgment and remand for a new trial.

Both of the parties are residents of Paramus and active in its political affairs. Defendant was and is president of an organization named "Independent Citizens of Paramus Organization." Plaintiff in recent years has been active in Democratic party politics in the municipality, having been president of the local party club and campaign manager for candidates for municipal office.

The present action is founded upon the following "letter to the editor," written by defendant and published in The Paramus Post , a weekly newspaper, March 18, 1956.

"Dear Editor:

Many thanks to your newspaper for presenting both sides of the inter-party squabble resulting from the article issued in the name of Mrs. Harry Ferrante of the executive committee of the Democratic Club and the answer of Republican candidate for Mayor, Robert A. Renna. My reaction, after reading both sides of the matter, indicated quite clearly to me that Mr. Charles Mosler is definitely influenced in his thinking by a foreign philosophy alien to the American way.

I took the trouble to read many of the articles written by the Democratic Club during the last election. To my utter surprise they contained many personal attacks upon the character of the opposing candidates. Although Mayor Galda concluded several of the articles which appeared in the newspapers with the paragraph that he detests personal vilification, character assassination and maligning of individuals, yet the remarks in his previous paragraphs contained these very practices which he stated he could not condone. It became quite apparent to me that all of their articles contained attacks on the dignity of his opponents.

The present controversy, which I am given to understand resulted in an inter-party squabble, likewise was written in the same vein. To my mind the source of this type of writing can be attributable to only one man.

It is unfortunate that many upright citizens have found themselves involved in political squabbles as a result of finding their names signed to articles to which they did not fully subscribe. Can it be that Mrs. Ferrante knew nothing about the contents of this article when it was given to the press? Apparently her ire was aroused when she found herself the center of such a controversy.

As a citizen of high integrity she undoubtedly asserted herself in opposition to any future articles bearing her name and containing such unkind remarks leveled against any candidates as to all intents and purposes she is a well informed and sincere woman.

I would further suggest that the real Democrats in town divest themselves of this type of writer, whose un-American tactics upon other citizens have no place in the true American manner of conducting a campaign.

Sincerely yours,

FRANCIS J. WHELAN"

The letter was apparently motivated by previous publication of news stories based upon a publicity release for the Paramus Democratic Club prepared by plaintiff urging Republican party representatives to select Mayor Galda, incumbent Democrat, as their own candidate in the forthcoming primary election.

In his complaint plaintiff charged that readers of "the words" in the letter "derived the meaning therefrom that plaintiff was a believer in the foreign philosophy known as Communism, that he believed in Communism and was a Communist sympathizer, that he believed in and advocated the use of force or violence to overthrow the Government of the United States * * * that he engaged in un-American or Communist tactics upon other citizens and that he did not conduct himself in the manner of a true and loyal American, but ...


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