79 N.J.L. 379 | N.J. | 1910
The opinion of the court was delivered by
These are two actions of libel, arising out of the same state of facts, and tried together. Nonsuits were granted as to the Pennsylvania Railroad Company, and the jury found a verdict in favor of defendant Trout. The court granted a rale to show cause in each case why the nonsuit and verdict should not be set aside and a new trial granted. The reasons allege error in the nonsuit, in the admission and rejection of evidence, in the charge, and that the verdict was against the weight of evidence. The records are identical except as to names of the respective plaintiffs, and the matter will he i rented for present purposes as one case.
The declaration alleges that the defendant Pennsylvania Eailroad Company operated a dining car service, of which
“Dining Cae and Restaurant Department.
“Memorandum.
“June 5, 1905.
“Notice to ail Conductors.
“Eor your information, Conductors O. C. Bubeck, * * * T. H. Bamsdell * * *, were discharged for failing to issue meal checks according to instructions.
“H. Ii. Baker, “Ass’t. Sup’t. Dining Cars.”
The declaration contained an innuendo and a specification of defamatory sense under section 106 of the Practice act, which, for reasons presently to appear, need not be inserted at length. The only plea was that of general issue. At the trial it was amply proved, and not denied, that the notice was published by direction of defendant Trout by displaying it in the railroad commissary office, a place where conductors and other employes in the dining car department were required to report for orders and on matters connected with their employment; and that in accordance with the company’s rules a large number of conductors who had seen the notice, had signed their names below it as an evidence of that fact. Several such conductors testified to having seen the notice thus displayed. It was also testified without denial that plaintiff had not been discharged, but had resigned. No evidence was offered for the defence on any phase of the ease.
The statement that the plaintiff had been discharged, evidently for disobedience of orders, if, as claimed, and without
We think it was privileged as to the employes of the dining ear department resorting in the course of business to the office where it was set up. These should properly be officially informed of the severance of relations between the company and one of its conductors. Xo malice was made to appear; and if the plaintiff had been permitted to exhaust his evidence as to publication and. had then failed to show such publication to any persons but those within the designated class, there might well have been a direction for both defendants on the ground of qualified privilege. King v. Patterson, 20 Vroom 417; Rothhoz v. Dunkle, 24 Id. 438. But evidence was wrongly excluded which, if allowed, might well have shown an unprivileged publication. The witness Watt was asked whether during the time that the notice was posted and exposed to view, he saw other people besides dining car conductors in the room. This was objected to “on the ground that counsel should first fix the time wheD the witness knew,” and excluded. This exclusion was erroneous. The gist of the inquiry at this stage was not the period during which the notice was posted, but what persons had been in the office where it -was exposed to view; and the witness should have been allowed to answer this question even if he had been unable to fix any dates or time at all, so long as he could place the visitors and the notice in the room together.