Price, Sullivan and Leonard. The opinion of the court was delivered by Leonard, J.s.c. (temporarily assigned). Sullivan, J.A.D. (concurring).
This is a slander case. Plaintiff appeals from an involuntary dismissal in favor of defendants after the completion of the case. Defendant Drozd has not responded to the appeal but, of course, his interests are nonetheless before us. Gnapinsky v. Goldyn , 23 N.J. 243, 250 (1957).
Plaintiff testified as follows: On September 5, 1959 at about 3 P.M., while backing his automobile out of his driveway, he was halted by a call from defendant Tiebie, a neighbor. While the latter was on the sidewalk about ten feet from plaintiff, he shouted: "Hey Frank, you'd better watch your step or you're going to get in trouble," to which plaintiff inquired: "What are you talking about?" Defendant Tiebie then, in a loud voice, said:
"You are a no good dirty guinea, and all you do is sit out in front of your house all day long and sit and whistle at all women that ride up and down the street in their cars. You even whistle at the neighbor's wives. My wife can't even walk up and down the street without your whistling at her. Not only that, you even whistle at your own wife."
Later, after running an errand, plaintiff went to the home of defendant Drozd, also a neighbor, and told him that he had learned Drozd "encouraged" Tiebie by saying "Give him hell, give him hell," and that plaintiff was "the biggest hypocrite you ever saw" and was "no damn good." Drozd's reply thereto was "I've nothing to say."
Plaintiff's wife and a friend, one George Ambrosia, who were in a screened porch of plaintiff's house at the time of the aforementioned incident, testified that they heard the defendants make substantially the above statements.
At the time of the incident plaintiff's height was 5'11 1/2" and his weight 213 lbs. He was employed as a trailer-truck driver and was a shop steward at his place of employment.
Plaintiff stated that following these outbursts, his appetite was "curbed," he stopped eating breakfast, his weight dropped
to 192 lbs., he became "very much upset," "very nervous," "very shocked," the thought of this incident was "always on my mind," and his loss of weight necessitated extensive alterations to his wardrobe at a cost of "roughly around forty, forty-five, fifty dollars, I don't know." His wife corroborated his loss of appetite and weight, his nervousness and added "he doesn't sleep well." Plaintiff did not lose any time at his job, nor did he consult a doctor either before or after the incident.
Throughout plaintiff's case defendants objected to his testimony as to the effect of the alleged slanderous words upon him, on the ground that the causal connection between the two had to be established by medical testimony. The court at first sustained these objections but thereafter allowed plaintiff to testify thereon "on condition that the same would be connected up and shown to be the proximate result" of these words.
At the conclusion of the case both defendants moved for an involuntary dismissal of plaintiff's cause of action. The trial judge, in granting these motions, found the words uttered by defendants were not slanderous per se , and therefore "there must be proof of special damages," and further stated:
"I do not feel that evidence which was only admitted upon the condition that it be connected up [by medical testimony] and shown to have been the proximate result of this remark, this statement, to have been made by one of two of these defendants, I don't find that connection has been established and therefore I find that no proof of actual damage has been sustained and the burden of ...