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Sokolay v. Edlin

Decided: January 16, 1961.

JOHN A. SOKOLAY, PLAINTIFF-APPELLANT,
v.
MAX EDLIN AND FRANCIS E. HUMISTON, BOTH INDIVIDUALLY AND AS PARTNERS TRADING AS EDLIN'S PHARMACY, AND PHILIP WITTCOFF, DEFENDANTS-RESPONDENTS



Goldmann, Foley and Collester. The opinion of the court was delivered by Collester, J.s.c. (temporarily assigned).

Collester

The plaintiff John A. Sokolay appeals from summary judgments entered in the Superior Court, Law Division, in favor of the defendants.

Suit was instituted by the plaintiff in four counts, the first count of which has been abandoned. In the second count plaintiff charges that the defendants, Max Edlin and Francis E. Humiston, defamed the plaintiff by publishing a defamatory oral statement which, by innuendo set out in the count, charged that plaintiff had stolen certain demerol tablets. In the third count plaintiff charges the defendant Philip Wittcoff with malicious interference with plaintiff's employment causing his discharge. In the fourth count plaintiff charges the defendants Edlin, Humiston and Wittcoff with an unlawful conspiracy to cause plaintiff's discharge.

None of the defendants filed affidavits with the trial court in support of their motions for summary judgments. They chose to rely on the pleadings, depositions, interrogatories and the testimony of the plaintiff taken before the court during a preliminary hearing on the issue of express malice.

The plaintiff, a registered pharmacist, was employed as a part-time manager and pharmacist at Edlin's Pharmacy in North Arlington, New Jersey, which was owned and

operated by the defendants, Max Edlin and Francis E. Humiston, as partners.

In June 1958 a shortage of approximately 2,200 demerol tablets, a narcotic, was discovered in the pharmacy inventory. The defendant Philip Wittcoff, a sergeant of the New Jersey State Police, was assigned to investigate. During the course of the investigation Wittcoff questioned the owners and employees of the pharmacy, including the plaintiff, and on July 15, 1958 polygraph tests were taken voluntarily by the plaintiff, the defendant Humiston, and two pharmacist internes, Ronald Green and Richard Diehl, with negative results.

Plaintiff states in the pretrial discovery proceedings that on July 15, 1958, following his lie detector test, Wittcoff endeavored to persuade him to confess to the theft of the demerol tablets and made various threats in the course thereof, one of which was that he would have the plaintiff discharged.

A month later, on August 15, 1958, after the daily closing hour of the pharmacy, the defendant Edlin discharged the plaintiff by stating to him:

"I am convinced that you are responsible for the missing demerol tablets. I am also going to find out who else is implicated in it with you. Because of this, I have got to let you go."

Plaintiff states that these words were spoken by Edlin in the presence of Humiston, Ronald Green and one Frank Weber, who was employed as a part-time delivery and clean-up man by the pharmacy.

In his letter opinion granting summary judgments in favor of the defendants Edlin and Humiston, the trial judge stated that the words spoken by Edlin were not spoken with malice and were not actionable. He further stated that the circumstances under which the words were spoken justified their use and explained the reason for plaintiff's discharge.

R.R. 4:58-3 provides that summary judgment may be rendered "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show palpably

that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." The burden is on the moving party to exclude all reasonable doubt as to the existence of any genuine issue of fact. All inferences of doubt are drawn against the movant in favor of the opponent of the motion, and the papers supporting the motion are closely scrutinized and the opposing papers indulgently treated. Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67, 74-75 (1954). The motion should be cautiously granted. Bouley v. Borough of Bradley Beach , 42 N.J. Super. 159, 168 (App. Div. 1956). It should not be used for a trial of disputed facts upon affidavits, ibid. Furthermore, it has been said:

"* * * in any case where the subjective elements of willfulness, intent or good faith of the moving party are material to the claim or defense of the opposing party, a conclusion from papers alone that palpably there exists no genuine issue of material fact will ordinarily be very difficult to sustain. The telltale factor of demeanor in the presence of the trier of fact often assumes such vital importance in such cases that the opposing party should generally not be denied the opportunity to have the moving party, or its officers, appear on the witness stand before the trier of fact." Judson v. Peoples Bank & Trust Co. of Westfield, supra , 17 N.J. , at p. 76.

If the pleadings and answers to interrogatories and affidavits filed in support of and in opposition to the motion show the existence of a genuine question of fact which, if proven, would establish the plaintiff's right to recovery on the issues joined by the complaint and answer, and such question of fact can be established by evidence in the form of depositions, interrogatories, affidavits and admissions which would be evidential on the trial, the trial court may not grant summary judgment. If no such question of fact can be established on the record, the motion may be granted. Shiddell v. Electro Rust-Proofing Corp. , 34 N.J. Super. 278, 282-283 (App. Div. 1954).

Motions for summary judgment do not admit all the well-pleaded facts in a complaint. Summary judgment is not to be denied if other papers pertinent to the motion show palpably the absence of any issue of material fact, although the allegations of the pleadings, standing alone, may raise such an issue. Summary judgment procedure pierces the allegations of the pleadings to show that the facts are otherwise than as alleged. Judson v. Peoples Bank & Trust Co. of Westfield, supra , 17 N.J., p. 75. Thus, the plaintiff's own papers may indicate that the facts are otherwise than alleged in the complaint.

In the count alleging slander, plaintiff relies upon the fundamental rule that where spoken language is of such a character as to make the slander actionable per se , a suit will lie without proof of special damages. Restatement of Torts, sec. 570, p. 170 (1938). Cf. Bock v. Plainfield Courier-News , 45 N.J. Super. 302 (App. Div. 1957). Various types of statements may constitute slander per se. One who falsely, and without privilege to do so, publishes a slander which imputes to another conduct constituting a criminal offense is liable to the other, without proving special damages, if the offense charged is of a type which, if committed in the place of publication, would be chargeable by indictment. Restatement of Torts, sec. 570, p. 170, sec. 571, p. 171 (1938); Shaw v. Bender , 90 N.J.L. 147 (E. & A. 1916). If the language used charged the plaintiff with either larceny of the demerol tablets or a violation of the Uniform Narcotics Law, R.S. 24:18-1 to 49, there is no doubt it would be slanderous per se. This is likewise the case where the unavoidable implication of the language is that a crime has been committed. Jorgensen v. Pennsylvania R. Co. , 38 N.J. Super. 317, 343 (App. Div. ...


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