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Herrmann v. Newark Morning Ledger Co.

Decided: April 18, 1958.


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


On January 13, 1958 we reversed a judgment for the plaintiff in the foregoing libel action for reasons fully set forth in the opinion of the court, reported in 48 N.J. Super. 420, and remanded the cause for retrial. To facilitate the disposition of the entire controversy on the retrial we undertook consideration of the question whether the publication complained of was libelous in respect of the sting charged by the plaintiff on the appeal, but not in the pretrial order, that he was defamed by being associated with Communism. We determined that plaintiff should be allowed to amend the complaint and pretrial order and that if the facts in the complaint, as amended, were established, the publication was libelous in the sense stated as a matter of law and should be so considered on the remand (saving defendants' defenses as to truth, fair comment, etc.).

Defendants filed a petition for rehearing, complaining, not of the judgment, but of the opinion of the court in the respects, inter alia , (b) "that the Court had insufficient facts upon which to determine that a substantial number of people would infer from the article (after amendment) that the plaintiff had Communistic leanings," and (e) "that no opportunity was afforded to the defendants to brief the point as to the defamatory character of the remarks concerning the adoption of the resolution." Reference is made to the full text of the opinion for enlightenment as to the significance of these points. As it was true that these questions had not been argued in the initial briefs we granted the petition. Full supplemental briefs have been filed on both of the points, including the merits of the subject referred to in "(e)."

The first point argued by defendants is based upon a misconception of the nature of our determination. We did not make the determination complained of on the basis of any evidence in the case as tried. We concluded, as a matter of law, based on aspects of current public opinion so commonly held by some segments of the general public as to be a matter of common knowledge to the well-informed,

that such elements of the public, not fairly to be described as disrespectable or negligible, would regard the opponent of the substance of a resolution supporting a City of Newark policy to discharge teachers and other city employees who plead the Fifth Amendment in investigations of Communism, as sympathetic with Communists, and therefore hold him in disrepute. On that basis, and applying the established rule that words are actionable if the plaintiff would be demeaned thereby in the eyes of a "substantial number of respectable people" in the community, whether or not "right-thinking" (48 N.J. Super. at page 439), we held the publication defamatory as a matter of law in the respect stated.

It is true that we referred in our opinion to testimony that a number of people did regard the plaintiff as a Communist after reading the article, but this was merely illustrative comment, not intended to signify that the basis for our conclusion was laid in the evidence adduced at the trial. It was not.

We indicated in our previous opinion why we entertained the view that in a case of this kind the court should not delegate to a jury the issue of the existence in the community of a substantial number of people in whose eyes the questioned writing would demean the plaintiff (48 N.J. Super. at pages 440-442). In the light of defendants' supplemental brief, some further comment on the subject may be helpful.

To be distinguished is the situation wherein the defamatory impact of the writing is not dependent upon the mental habits or political or social views or biases of the public or some of its members, but where there is merely an ambiguity as to what the words mean, semantically, the court finding two meanings reasonably possible, one derogatory and the other not. Here the law hypothesizes a single readership mentality (albeit, in many cases, unrealistically) and the inference by the entirety of that readership of only one of the two meanings. It then becomes the jury's function from the evidence to determine which of the two potential

meanings was drawn by the readership (48 N.J. Super. at page 430).

When we pass from the field of meaning to that of the defamatory effect of unambiguous language, dependent upon a particular reader's biases, logical mental processes and political or social views, we are no longer dealing with alternative potential reactions to a given writing by the presumed unitary general readership of the publication, but with the problem of two distinct segments of the reading public, in one of which the unambiguous writing excites "scorn, aversion or hostility" (Grant v. Reader's Digest Ass'n , 151 F.2d 733, 735 (2 Cir. 1945), certiorari denied 326 U.S. 797, 66 S. Ct. 492, 90 L. Ed. 485 (1946)) toward the subject of the writing, and in the other not. As we have shown, under the prevailing American rule, the court is not concerned, within broad limits, with whether the segment of the public which thinks odiously of plaintiff because of the facts stated in the publication is "right-thinking" (48 N.J. Super. at page 439). It is sufficient that it be "substantial" and "respectable." In that case the false writing, realistically, is as hurtful to plaintiff as though the harmful imputation were drawn only by paragons of fair, unbiased and logical judgment. As stated by Prosser, "The American courts have taken a more realistic view, recognizing that the plaintiff may suffer real damage if he is lowered in the esteem of any substantial and respectable group, even though it be a minority one, with ideas that are not necessarily reasonable." Law of Torts (1955 ed.), ยง 92, p. 577.

It will at once be obvious that, in most cases, the existence of a substantial segment of the community in whose eyes the plaintiff will be demeaned by reason of the facts stated in the questioned publication cannot practicably be an issue for factual proof in a trial. To attempt to project such an issue for resolution by a jury would generally be futile, if for no other reason than the impossibly great number of witnesses who ...

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