O'Donnell v. Philadelphia Record Co.

Opinion by Mr. Justice Linn, Defendant appeals from judgment on a verdict for plaintiff in an action for libel. Defendant’s counsel states the controlling question to be “whether defendant had reasonable and probable cause for believing that which it published concerning the plaintiff.” That was one of the questions; in addition, it was necessary for the jury to consider whether the publication was inspired by a proper motive and was made in a proper manner. There is evidence to support the verdict on all three grounds. The libelous editorial appeared in defendant’s newspaper April 18, 1941, and will be found in the reporter’s *311 statement of the case. The learned trial judge instructed the jury that the following paragraph in the editorial was libelous per se: “John O’Donnell is a Naziphile. He makes no secret of it. On numerous occasions, to all friends and bar-flies within hearing, he has broadcast his sympathy with most of Hitler’s aims — such as destruction of the British Empire, suppression of labor unions and liquidation of Jews.” Those lines were printed in heavy type. In our review of the record, we must apply two familiar rules in considering the oral evidence. (1) One of them was stated by the present Chief Justice in Galliano v. East Penn Electric Co., 303 Pa. 498, 508, 154 A. 805, as follows: “On a motion for judgment n. o. v., the testimony should not only be read in the light most advantageous to plaintiff, all conflicts therein being resolved in his favor, but he must be given the benefit of every fact and inference of fact pertaining to the issues involved which may reasonably be deduced from the evidence: Mountain v. American Window Glass Co., 263 Pa. 181.” (2) The other rule was referred to by the Chief Justice in MacDonald v. Penna. R. R. Co., 348 Pa. 558, 562, 36 A. 2d 492, as follows: “Justice Sharswood, speaking for this court, said in Reel v. Elder, 62 Pa. 308: ‘However clear and indisputable may be the proof when it depends upon oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence.’ In Nanty-Glo Boro. v. Amer. Surety Co., 309 Pa. 236, 238, 163 A. 523, we said: ‘This rule is firmly established’ (citing cases). We said further : ‘The credibility of these witnesses, without whose testimony plaintiff could not have recovered, was for the jury.’ ” See also the opinions written by Mr. Justice Drew in Kindt v. Reading Co., 352 Pa. 419, 428, 43 A. 2d 145, and in Schnitzer v. P. T. C., 354 Pa. 576, 578, 47 A. 2d 709. *312 The jury accepted the evidence supporting plaintiff’s claim and rejected evidence and inferences from it offered to support the defense of privilege. Pursuant to the one rule, it was the duty of the jury to find the facts; pursuant to the other, it is the duty of the court to give effect to the facts established by the verdict. 1 Defendant now contends that the plaintiff should not hold his verdict because he “admittedly made statements to one of the authors of the publication which support and justify the statement alleged to be libelous.” We must reject that contention because it contradicts the verdict. It was the duty of the jury to find what the witnesses said and what they meant and whether the defense of privilege was made out. There are seven assignments of error, all of which must be overruled. The first two complain that the court held the defamatory paragraph quoted above libelous per se. It requires no argument to show that the learned judge’s conclusion was correct. The reason sufficiently appears in his instruction to the jury: “Now, as a mere abstract statement of a belief based upon an unworthy prejudice, there is nothing particularly libelous about that, but at that time there was sufficient common knowledge of what was being done by Hitler and the Nazis in Germany with respect to the Jews and others holding particular political or religious beliefs that the word liquidation’ meant the wanton extermination or cruel oppression, in one form or another of a people because they happened to be of a particular race or held a particular religious or political belief. Now, to the free Americans among whom this paper was published, that is an atrocious charge, especially if false and unjustified. To say that a man believes in exterminating fellow human beings because of their race natur *313 ally and inevitably holds him up to the hatred, ridicule and contempt of decent people, and unless such a charge is true or is made upon reasonable, probable cause, it is libelous in itself, and the law presumes that it inflicts injury upon the person against whom it is made.” The subject was considered again in the opinion written on behalf of the court in banc and reported in 56 D. & C. 328. The third assignment is to the refusal of a point for charge which, so far as we can understand it, had no relevance to the issue for trial; the point was therefore properly refused. The fourth and the sixth assignments are to the refusal of binding instructions and the refusal of the motion for judgment n. o. v.; as it was necessary to find facts from the oral evidence, the court could not take the case from the jury. On this subject, Judge Gordon said, . . the defendant called a number of witnesses, all conceded by the plaintiff to be reputable and well known Washington correspondents, to show that at various times, they had heard (and reported to J. David Stern, publisher of the defendant paper and one of the authors of the article in question) the plaintiff express opinions and sentiments respecting the treatment of Jews by Hitler and Nazi Germany, which, if communicated to the defendant, the trial judge told the jury furnished ample justification for the charge made in the editorial. Whether these witnesses did in fact so report to Mr. Stern, as testified by him and by them, rested entirely upon his and their oral testimony, and it was upon this question that the liability of the defendant ultimately turned. It was impossible, .therefore, to give binding instructions for the defendant, or to sustain its motion for judgment non obstante veredicto, in view of the well settled rule that, where the proof of a fact rests entirely upon oral testimony, the credibility of the witnesses thereto is solely a question for determination by the jury trying the case.” The fifth assignment is to the refusal of defendant’s motion *314 for a new trial and raises tlie' question whether there was abuse of discretion in dismissing the motion. No abuse of discretion has been shown. In dealing with this point, Judge Gordon said: “Had this been the only trial of the case, we would have acted well within our discretion in directing its submission to another jury, as was done after the first trial. We prefer, however, to accede to the judgment of two juries upon the fundamental question of liability, and to confine the exercise of our discretionary powers to keeping the amount of the verdict within reasonable bounds, in the light of all the evidence. The discretion of a court to grant as many new trials as may be necessary to bring about a verdict acceptable to it is not an absolute discretion, resting upon the personal judgment of the individual judge. It is a judicial discretion, which is limited by a proper recognition of the jury’s function to determine factual matters; and when two juries have spoken so decisively upon the question, their judgment is not to be lightly ignored.” The seventh and last assignment states that the entry of judgment on the verdict violated defendant’s rights “under the Fourteenth Amendment to the Constitution of the United States by depriving it of property without due process of law in that it abridged its right of freedom of speech and freedom of the press.” Defendant’s brief contains nothing which, so far as we can understand it, supports the assignment. The case is very simple in its legal aspects. Did the defendant have reasonable and probable cause? Was defendant’s motive proper? Was the manner reasonable? Was the asserted privilege abused? The jury on proper instructions took plaintiff’s vieAv of the evidence and rejected defendant’s. We need not refer to what is said in- appellant’s brief about burden of proof because we deal with the record as presented; the evidence was sufficient to go to the jury. Defendant contends that its liability should depend on whether it published the libel “solely for the purpose *315 of causing harm to the plaintiff.” That is not the law of Pennsylvania. In Hartman v. Hyman & Lieberman, 287 Pa. 78, 83-84, 134 A. 486, Mr. Justice Simpson said: “It has often been said that a privileged communication is one made upon a proper occasion, from a proper motive, in a proper manner and based upon reasonable or probable cause: Conroy v. Pittsburgh Times, 139 Pa. 334; Wallace v. Jameson, 179 Pa. 98; McGaw v. Hamilton, 184 Pa. 108. The immunity of a privileged communication is the exception, and he who relies upon an exception must prove all the facts necessary to bring himself within it: Collins v. The Morning News Co., 6 Pa. Superior Ct. 330; Mulderig v. Wilkes-Barre Times, 215 Pa. 470; Montgomery v. New Era Printing Co., 229 Pa. 165; McGeary v. Leader Publishing Co., 52 Pa. Superior Ct. 35. Want of reasonable care and diligence to ascertain the truth, before giving currency to an untrue communication, will destroy the privilege: Clark v. North American Co., 203 Pa. 346, 351; Collins v. Morning News Co., supra; McGeary v. Leader Publishing Co., supra; Com. v. Costello, 1 Pa. Dist. R. 745, 747, per Endrich, P. J.” While that statement was made in an action of slander of trade, it was repeated in the libel action of Stevenson v. Morris, 288 Pa. 405, 409 et seq., 136 A. 234. See, also, Williams v. Kroger Grocery & Baking Co., 337 Pa. 17, 19, 10 A. 2d 8. The rule of those cases was reaffirmed in Bausewine v. Norristown Herald, Inc., 351 Pa. 634, 645, 41 A. 2d 736, in an opinion written by Mr. Justice Jones. Counsel for plaintiff contends that defendant’s attacks on him in the same editorial in which defendant praised plaintiff’s employer are evidence from which the jury could find that defendant was maliciously trying to have plaintiff discharged from his employment, referring, in this connection to Mr. Stern’s testimony: “Q. Well, you were only interested in Mr. O’Donnell’s connection with the papers he represented, weren’t you? A. That was all.” In addition, defendant repeated the *316 libel 2 by publication August 8, 1942, long after the original publication and after the United States was at war with Germany, and after this suit was brought. This republication was relevant in the jury’s inquiry; if there was abuse of privilege in the original publication, the jury may have found the republication convincing evidence of wrong motive, of actual malice; see Newell: Slander and Libel, 4th ed., section 287, p. 322; Seip v. Deshler, 170 Pa. 334, 32 A. 1032; Thompson v. McCready, 194 Pa. 32, 40, 45 A. 78; Williams v. Hicks Printing Co., 159 Wisc. 90; Halley v. Gregg, 74 Iowa 563; Behee v. Mo. Pac. R. R. Co., 71 Tex. 424; Westerfield v. Scripps, 119 Cal. 607; Austin v. Remington, 46 Conn. 116; McDermott v. Evening Journal Ass’n, 43 N. J. L. 488. The jury was instructed to find “whether the publication itself, in its tone and format, revealed such malice as robbed it of its privileged character.” This was in accord with our decisions: Pittock and Mills v. O’Niell, 63 Pa. 253, 258; Neeb v. Hope, 111 Pa. 145, 153, 2 A. 568; Wallace v. Jameson, 179 Pa. 98, 116, 36 A. 142; Conroy v. Pittsburgh Times, 139 Pa. 334, 21 A. 154; Weglein v. Golder, 317 Pa. 437, 440, 177 A. 47. Judgment affirmed. Footnotes [1] The verdict was in tlie sum of $25,000, which was reduced by tbe court below to $8,000. On a former trial, tbe verdict was for tbe plaintiff in tbe sum of $50,000. [2] Defendant’s newspaper of August 8, 1942, printed on the front page an article containing the following: “On April 18, 1941, we published an editorial stating that John O’Donnell, head of Joe Patterson’s Washington Bureau, and Joe’s close friend and adviser, was a great admirer of the Nazis, a hater of the British Empire, an advocate of the destruction of trade unions, and quite pleased by the liquidation of Jews by Hitler. The occasion for that editorial was an unfair and untrue article signed by O’Donnell, attacking the integrity of the President, which was run in Joe’s Daily News. (Italic supplied.) “So vicious and so sinister was O’Donnell’s diatribe that President Roosevelt himself called it ‘a deliberate lie.’ ” This sentence was made conspicuous by the use of heavy type.