Ingram v. Reed

Opinion by Willabd, J., The only question considered by the learned trial judge mar [556] terial to submit to the jury was whether the printed publication of and concerning the plaintiff’s business, which appeared in the defendants’ newspaper in the issue of October 14, 1892, tended to injure the plaintiff in his good name and reputation, and held him up to public ridicule and contempt, and injured his standing in society. Upon an affirmative finding upon this question the jury were instructed to find for the plaintiff such sum as they believed would be proper compensation for the injury to his character resulting from the publication. The learned trial judge held as a matter of law, under the evidence, that the publication was not privileged. If he was correct in this the case was well tried and the verdict should be sustained. A privileged publication has been considered by this court in Shelly v. Dampman, 1 Pa. Superior Ct. 115; Oles v. Pittsburg Times, 2 Pa. Superior Ct. 130; and Coates v. Wallace, 4 Pa. Superior Ct. 253, and this case must be determined in harmony with those cases. We are not dealing with the rule which protects legislators in words spoken in the heat of debate, the judge in his utterances from the bench, the advocate in his address .to the jury, or the witness on the witness stand. That rule does not apply to the proprietor of a newspaper in publications made by him in pursuance of a duty he owes to society. His privilege is a qualified one to be declared by the judge under plain undisputed facts and circumstances privileged or not privileged. A qualified privileged communication, such as we are considering, is defined to be “ one made upon a proper occasion from a proper motive and based upon reasonable or proper cause and made in a proper manner.” The answer to the defendants’ fourth point discloses the reason of the learned trial judge for withdrawing the case from the jury on every question except as hereinbefore stated. The point and answer were as follows: “ If the jury believe that the publication complained of was made on a proper occasion, in a proper manner and from a proper motive, and the defendants had reasonable or proper cause to believe them to be true, plaintiff cannot recover and the verdict must be for the defendants.” The court answered, “This is a correct statement of a principle of law, gentlemen, but in this case there does not seem [557] to have been any effort made upon the part of the defendants to ascertain whether the statements made were true or false before making the publication, and the principle here laid down is not applicable in this case.” This answer practically says, you cannot find the facts as stated in the point for the reason that the effort made on the part of the defendants to ascertain whether the statements were true or false were inadequate and insufficient. Under the undisputed testimony we think the answer was correct. What was the article and what means were used to ascertain the truth of the alleged facts upon which it was based ? The article published by the defendants, so far as it relates to the plaintiff, Edward Ingram, charged that he, with twenty-nine other persons, was carrying on a business calling for the scrutiny of the police, that “the persons named, whose correct addresses are given, have paid the United States government a tax for the privilege of selling all sorts of liquors, but are not licensed by the county judges to engage in such sales.” That “ Their places are never closed and the proprietors openly sell on the Sabbath.” “ Here are the names. There are thirty names following, of which four are females.” The fourteenth name on the list was that of Edward Ingram, 3717 Butler street, Pittsburg. This was a grave charge against a citizen which never would have been made had the reporter made inquiry of the revenue officer, or visited Ingram’s place of business prior to the publication. It appears that in the published article the list was made up from the record of the United States Internal Revenue Office, which was admitted on the trial to be a public record of that office. From the evidence it appears that a book is kept by the collector of internal revenue containing the names of the spe- • cial taxpayers and all those that registered as manufacturers of cigars and tobacco, etc., that on said list, first, appears the name of the taxpayer or dealer; second, the character of the business the person is engaged in; third, his place of residence; fourth, the amount of tax he pays, if any. The retail liquor dealers are numbered as a class and the dealers in cigars and tobacco as a class. The number of the former far exceeds that of the latter. It further appears that the letters R. L. D., opposite the person’s name in the column designating the business, indicates [558] retail liquor dealer, and the letters M. C. indicate manufacturer of cigars. Opposite the name of Edward Ingram in the column designating his business were ditto marks, and above, opposite another name, appeared in the same column R..L. D. But it appears that opposite the plaintiff’s name there was nothing to indicate that he had paid a special tax, and the smallness of his number would indicate that he was not a retail liquor dealer. The ditto marks indicating his business were entered on the record by mistake, and after the publication complained of were changed to M. C. in the revenue office. A careful investigation of the record before it was thus changed and inquiry of the revenue officers would have disclosed the true character of Mr. Ingram’s business. It appears from the testimony of Mr. Reed, one of the proprietors of the Commercial Gazette, that a person was sent from the office of the newspaper to the office of the collector of internal revenue to look at the record. As a result of his investigation, in the next issue of the newspaper the plaintiff, with others, was published as a person paying tax to the United States as a retail liquor dealer who had no license from the commonwealth to engage in such business, and by fair implication from the language of the article was keeping open house on Sunday. It is stated in that part of the charge of the court made the subject of the second and third specifications of error that the inspection of the record was inadequate, in other words that the means were at hand for ascertaining the exact truth, but, without availing themselves thereof, the defendants published the article, and the judge adds : “ Even if it had not been disclosed by the book itself that he was not engaged in this business, it would have been their duty to make some effort, at •least, to ascertain the truth of the charge that they were making, viz., that he was engaged in this illegal business before making the publication. In other words, they took the chances of the publication, if they did publish, without making any investigation to ascertain whether or not it was true.” We do not think the trial judge erred in his estimate of the effort. In Odgers on Libel and Slander at page 199 it is said, “If indeed there were means at hand for ascertaining the truth of the matter, of which the defendant neglects to avail himself and chooses rather to remain in ignorance when he might have [559] obtained full information, there will be no pretense for any claim of privilege.” There are undoubtedly cases where, under certain circumstances, it is the duty of the judge to submit the testimony and all the circumstances to the jury in order to ascertain whether the publication is privileged or not. But where the evidence is undisputed as in this case “ whether the communication be privileged or not, is a question for the court, and not for the jury: ” Briggs v. Garrett,. Ill Pa. 404. In pursuance of this rule we think the learned trial judge properly disposed of this case in his charge and submitted to the jury the only question for their consideration. The assignments of error are overruled and the judgment affirmed.