For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Schettino, J.
Plaintiffs appeal from a final judgment of the Superior Court, Law Division, dismissing plaintiffs' complaint for libel against defendant, The Passaic Daily News, and from an order denying plaintiffs' motion for a new trial and to set aside the dismissal of the complaint. This defendant's motion was made after plaintiffs rested, having submitted evidence only on the issue of liability; R.R. 4:42-2(b). The complaint against defendant Fitzgerald was later dismissed by consent and with prejudice. While the appeal to the Appellate Division was pending, we certified pursuant to R.R. 1:10-1(a).
At the time of the alleged libels plaintiffs were patrolmen in the City of Clifton police department and had finished first and second, respectively, in the Civil Service examination for promotion to sergeant. The City of Clifton has a
council-manager form of government. Fitzgerald was the City Manager of Clifton.
In the evening of December 27, 1956 the Clifton city councilmen met in a special session to consider, primarily, fiscal matters. Fitzgerald attended the meeting after leaving a board of health Christmas party at which he admitted he had two drinks. Fitzgerald was asked by two of the councilmen why he was planning to bypass plaintiffs and appoint two others to the rank of sergeants. Plaintiffs' complaint alleges that Fitzgerald responded:
"You want to know why they (meaning this plaintiff, Chester R. Swede, and Raymond DeLuca) were skipped? I'll tell you why. Insubordination that's the reason. I should have fired them (meaning this plaintiff, Chester R. Swede, and Raymond DeLuca)."
The report of this statement was published in its newspaper by defendant, The Passaic Daily News (hereinafter "defendant") on December 28, 1956. It was also mentioned in the articles written concerning the aftermath of the incident on eight subsequent occasions.
We deem it necessary to set forth at length the news articles referred to by plaintiffs. In the initial news article the only reference to the alleged defamatory statement was the following:
"Brogan said 'politics' had been claimed in the skipping of Swede and DeLuca. He then asked Fitzgerald why the men had been passed over.
'You want to know why they were skipped?' Fitzgerald said, 'I'll tell you why. Insubordination, that's the reason. I should have fired them.'"
A news report published by defendant on January 3, 1957, entitled "Censure Attempt Fails Over Police Promotions," recited, in part:
"The Clifton City Council last night rejected several attempts to censure John L. Fitzgerald, retiring city manager, for his surprise police promotions of last week. It also decided to proceed with an
investigation of insubordination charges made by Fitzgerald against two patrolmen who were bypassed for promotions.
The resolution proposing that Fitzgerald's charge that Swede and DeLuca had been insubordinate be investigated was referred to the legal department. Edward Johnson, city counsel, was instructed to report at the next meeting what procedure should be followed in such an investigation.
'I want an investigation of the insubordination charges,' Zwier said. 'If these men were insubordinate, they should have been brought up on charges long ago.'
Zwier maintained that all charges of insubordination should be brought to the council's attention.
Last week, Fitzgerald said he had not promoted Swede and DeLuca because they had been insubordinate. Pressed for an explanation, he failed to do so."
On January 23, 1957 defendant reported, in pertinent parts:
"John L. Fitzgerald, retiring Clifton city manager, who is vacationing in Florida, has denied ever stating that he should have fired two Clifton patrolmen who were bypassed in promotions to sergeant, it was learned today.
His denial is contained in a letter to the Clifton City Council which was received on Monday.
The letter reportedly also says that Fitzgerald will consider engaging counsel if the City Council does not discontinue 'threatening' him.
During the last few weeks, members of the council have demanded that an investigation be made of Fitzgerald's statement that Patrolmen Raymond DeLuca and Chester R. Swede had been insubordinate and 'should have been fired.' The manager made the statement at a regular council session December 27. At that time, he refused to elaborate when asked to do so by councilmen.
Miss Edith M. Marrion, city clerk, this morning admitted receipt of the letter. She said, however, she could not release it until she had been authorized to do so by a majority of the City Council.
Fitzgerald created a storm in the council when he made the statements concerning DeLuca and Swede." (Emphasis added.)
On January 29, 1957, in reference to the letter of Fitzgerald, defendant reported in its newspaper that at the Clifton council meeting the night ...