Conford, Kilkenny and Lewis. The opinion of the court was delivered by Conford, S.j.a.d.
This is an appeal by plaintiff from the grant of summary judgment in favor of defendants in an action for libel. The libel claims arise from a series of news stories and editorials published by the defendant daily newspaper in July and August 1957 growing out of the testimony given by one Wallace before a United States Senate Subcommittee on internal security laws ("Senate Subcommittee," hereinafter) inquiring into the "Scope of Soviet Activities in the United States."
This action was instituted on June 16, 1958. The unfortunate protraction of the proceedings is a story which need not now detain us. Much time was devoted to pretrial discovery and motions. A collateral phase of the matter was dealt with in Nusbaum v. Newark Morning Ledger Co. , 33 N.J. 419 (1960). It is of interest that the Supreme Court there, in looking over the complaint and answer, was troubled by an apparent lack of adequate specificity in the pleadings and urged a full and careful pretrial conference to produce a pretrial order as a "specific guide to the ultimate trial" (at p. 427).
In April 1962 former Superior Court Judge Coolahan denied a motion for summary judgment by defendants after consideration of argument and briefs on the ground "that a question of fact exists and under such circumstances the motion for summary judgment must be denied." At a prior pretrial conference the court had granted leave to the parties "to address such motions as they feel are applicable * * * at or before trial." At about the same time the court heard and reserved decision on a motion by plaintiff to strike certain defenses "as an issue to be determined at trial." After Judge
Coolahan's resignation in order to accept appointment to the United States District Court bench the case was assigned to another judge for trial. The latter, on October 15, 1962, conducted an extensive conference for further clarification of the issues, and then, over plaintiff's objection, entertained a renewal of defendants' motion for summary judgment, at the same time permitting plaintiff to argue motions for judgment of liability as a matter of law and to strike defenses. The court granted the defendants' motion, denied those of plaintiff and entered final judgment for defendants.
The first issue argued is the alleged impropriety of the entertainment of the motion for summary judgment after a full consideration and denial of the same motion previously by another judge. The court takes the view that the action complained of was within the second judge's discretion for the reason that a party always has a right to apply for reconsideration by a judge of a ruling by him and that since no such motion could be made before Judge Coolahan after his resignation it was appropriate for the judge thereafter assigned to the case to entertain it. TCF Film Corporation v. Gourley , 240 F.2d 711 (3 Cir. 1957); Clarkson v. Kelly , 49 N.J. Super. 10 (App. Div. 1958).
The earlier publications here complained of by plaintiff raise questions, primarily, as to whether the defendant newspaper abused its privilege of publishing a fair and accurate report of a legislative proceeding without malice. That qualified privilege is clearly applicable here. Coleman v. Newark Morning Ledger Co. , 29 N.J. 357, 379 (1959); Swede v. Passaic Daily News , 30 N.J. 320, 333 (1959). But the nub of this phase of the case is whether the asserted fairness and accuracy of defendant's reports of Wallace's testimony as adduced before the Senate Subcommittee, and in their defamatory impact on plaintiff, were so unquestionable
as to be properly subject to resolution by the court as a matter of law in favor of defendants on motion for summary judgment; or whether reasonable men might fairly differ as to the fairness and accuracy of the reports so as to require the submission of the issues to a trial jury. Ordinarily, "[u]nless only one conclusion can be drawn from the evidence, the determination of the question whether the privilege has been abused is for the jury." Prosser, Torts (2 d ed. 1955), § 95, at p. 629; Coleman v. Newark Morning Ledger Co., supra.
We state at once that our careful examination of Wallace's testimony and of the publications complained of, taken against the background of all the material before the trial court, satisfies us that there was no fact issue for trial by jury as to most of the published material impugned which purported to report or be based upon that testimony. But we think there was a proper question for jury resolution as to the fairness and accuracy of those portions of the publications which, in substance or effect, reported Wallace to have testified that plaintiff attended a meeting of the Communist Party or that she was an "intermediary of the Communist Party." Defendants do not deny that such statements were defamatory per se in the concomitant context of the publications, see Mosler v. Whelan , 28 N.J. 397, 405 (1958); Herrmann v. Newark Morning Ledger Co. , 48 N.J. Super. 420, 438 (App. Div. 1958), affirmed on rehearing, 49 N.J. Super. 551 (App. Div. 1958), and were actionable unless made under privilege, were true in fact, or constituted fair comment.
A proper resolution of these questions calls for laying the Wallace Senate testimony and the published articles and editorials side by side and comparing them.
Wallace's testimony on the morning of Tuesday, July 23, 1957, is what was reported by the first of the defendant's publications here assailed as libelous -- a news article in the defendant newspaper of Wednesday, July 24, 1957 (inaccurately datelined July 25), being the subject matter of the first count of the complaint. The two lead paragraphs of that article read as follows:
"A former Communist told Senate probers today that Newark's three 'Fifth Amendment' teachers were present at a party meeting called to try to get Judge John O. Bigelow, a member of the Rutgers board of governors, to lend his prestige to a plan aimed at thwarting the House Un-American Activities Committee's 1954 probe of communism in New Jersey's labor and teaching ranks.
In testimony before the Senate Internal Security subcommittee, William A. Wallace, former high-ranking official of the independent United Electrical Workers Union (UE), said the Communist Party 'went after Judge Bigelow as a big shot' in the State Bar Association in an effort to influence other prominent lawyers into defending witnesses before the House Committee." (Emphasis ours)
Thereafter the article purportedly summarized Wallace's testimony of his background as a Communist and union shop steward at Singer Sewing Machine Co. in Elizabeth, as an F.B.I. undercover agent beginning in 1952, and of the presence of three Newark schoolteachers, Laba, Lowenstein and Zimmerman, at the meeting referred to, at the home of a Dr. Tushnet in Maplewood, "called to enlist the aid of Judge Bigelow." The article said that Wallace identified three of the people at the meeting besides himself as Communists -- the teacher, Zimmerman, and two other people, a Sylvia Cohen and one Moroze. The article then went on:
"As a result of the meeting, Wallace said a woman was sent to urge Bigelow to make a statement saying it was 'perfectly all right for lawyers to defend witnesses in the use of the Fifth Amendment' before the House group.
'We felt that Judge Bigelow (continued on Page 8 Col. 6)
3 TEACHERS NAMED IN SENATE RED QUIZ
(Continued from Page One)
was a big shot.' Wallace said. 'And if we could get him to take a position, other lawyers would fall into line -- prominent lawyers who carried lots of weight in the community.'
'When we knew the committee was coming into Newark,' Wallace added, 'we knew we had to discredit its work. The meeting was called to discuss use of the Fifth Amendment before the committee in order to thwart its purpose, but we knew we would have to get somebody prominent to back us where the Fifth Amendment was concerned.'
Wallace said that he worked as a liaison [ sic ] agent between the union and the Emergency Civil Liberties Committee 'to help any
Communist teachers who were called to testify before the House UnAmerican Activities Committee.'"
Plaintiff asserts by way of innuendo that some readers of the foregoing article would identify her as the unnamed "woman" who was supposedly sent to Judge Bigelow at the "1954" meeting (actually 1955) as a Party representative on behalf of the teachers as she was a well-known Newark leader of a movement in defense of the teachers when their prospective summoning by the House UnAmerican Activities Committee was a matter of wide public knowledge. She would have a right at trial to attempt to prove that she was so identified by the public or some of it. See Gnapinsky v. Goldyn , 23 N.J. 243, 252-55 (1957); Garrison v. Newark Call Printing & Pub. Co. , 87 N.J.L. 217 (E. & A. 1914). Defendants did not offer proof on the motion for summary judgment negating that fact. It therefore remains a triable issue of fact. The same applies to plaintiff's innuendo that the article is susceptible of the meaning of placing her at the "party meeting."
We turn, then, to Wallace's testimony before the Senate Subcommittee for appraisal and determination as to whether reasonable minds could fairly differ as to the fairness and accuracy (or substantial accuracy; Restatement, Torts , § 611, comment (d)) of the news account's report of that testimony as placing plaintiff (subject to the above) at a Communist Party meeting for the purposes and in the company described.
Notwithstanding plaintiff's argument to the contrary, we find that a printed transcript of the Wallace Senate testimony was before the trial court on the motion.
In the first part of that testimony Wallace traced the history of his activity as a Communist in a party club at the Singer plant, where he was shop steward of the local union; and he told how the party influenced union policy in contract negotiations and in calling strikes during the Korean War to impede the war effort. The Wallace testimony then prefaced and covered the subject matter of this action as follows:
"MR. MORRIS. Now, in connection with your work, Mr. Wallace, did you have any dealings with other groups -- people like schoolteachers or lawyers? Communist schoolteachers or Communist lawyers?
MR. WALLACE. Yes. I was a liaison between the union and the front organizations. One of the front organizations -- well, I won't say that it is a front organization, but it is not a legitimate organization -- was this Emergency Civil Liberties Union.
MR. MORRIS. That is the Emergency Civil Liberties Committee?
MR. MORRIS, And had no connection whatever with the American Civil Liberties Union?
MR. WALLACE. No. In 1954, I was assigned to work with this committee on exposing -- not exposing, but discrediting -- the Un-American Committee.
MR. MORRIS. Un-American Activities Committee?
MR. WALLACE. That is right. They were coming in, in July of 1954 to Newark. My job was to coordinate the activities of the union with this committee.
At that time, I met several teachers and professional people -- doctors and lawyers -- who were also on that committee.
At that time, I found out -- well, I can't say that they were Communists -- but I found out that they spoke as I did, as far as communism was concerned.
MR. MORRIS. Now, in connection with this hearing, you told us you attended a certain meeting in some doctor's home in Maplewood.
MR. WALLACE. Yes. I attended a meeting at Dr. Tushnet's home.
MR. MORRIS. Was he a Communist?
MR. WALLACE. I can't say that he attended meetings with me, but from the discussions that went on at these meetings, I would say yes.
MR. MORRIS. Who was present at this meeting in Dr. Tushnet's home in Maplewood, N.J.?
MR. WALLACE. There was myself. There was Lew Moroze, M-o-r-o-z-e. He was secretary of the Civil Rights ...