Binder v. Pottstown Daily News Publishing Co.

Opinion by Rice, P. J., A large part of the argument of appellant’s counsel, and many of the assignments of error, are based entirely upon the proposition that the parts of the publication attached to and made part of the plaintiff’s statement of claim which reflect on the plaintiff personally are not properly pleaded as libelous; that the words formally pleaded as libelous were a mere criticism of a “ thing ” — the plaintiff’s newspaper — and constitute the only libel charged in the case. This is the first question to be considered. Its correct determination depends upon the — 423 — proper construction of the averments of the statement of claim. The statement of claim alleges that the plaintiff was proprietor and publisher of the “ Daily Pottstown Ledger,” a public newspaper, and that the defendant, the publisher of another newspaper, intending to injure the plaintiff and to deprive him of his good name and fame, and further intending to injure the reputation of his newspaper enterprise, falsely and maliciously published, in its daily issue of February 20,1904, “ of and concerning plaintiff and his said newspaper the following . . . . defamatory and malicious writing and libel, stating in large bold type headlines ” (which are here quoted) “ calculated to specially attract attention, and alleging incompetency and lack of reputation upon the part of plaintiff to conduct said newspaper, and that any printed news therein was unworthy of belief and distorted by petty prejudice ; and that said publisher, the plaintiff, was not financially responsible, and that his publication contained only fake news items, and on said account was entirely unworthy of public support, and that thereby it was fast losing the support of its friends and patrons; all of which charges, insinuations and calumnies are false and known to be false and untrue by the defendant at the time of the publication of said false, malicious and libelous article, which said article is set out at large and attached to and made part of this statement.” Perhaps it would have been better form to set out the entire article, or that part of it claimed to be libelous, in the statement of claim, putting the innuendoes in immediate connection with the clauses to which they relate, but though the form of setting out the libelous words, by attaching a copy of the article in which they appear to the statement and making it part thereof by reference as above set forth, is open to criticism, we are of opinion that it does not constitute a substantial defect which can be complained of after pleading the general issue and going to trial on the merits. Nor do we agree with the appellant’s counsel in their contention that no matter contained in the article, except that contained in the headlines, is charged as libelous, and it seems to us that scarcely more is required to show the erroneousness of their construction of the statement than the extended quotation therefrom we have made. It shows that the “following” writing is alleged to be libel — 424 — ous ; that part of this writing consists of the quoted headlines, and that the entire false, malicious and libelous article is set out at large and attached to and made part of the statement. The manner in which the headlines are referred to tends to show that the plaintiff did not mean to charge that they constitute the entire libelous part of the writing, and this becomes quite clear when it is noticed that in specifying what the writing alleges against the plaintiff and his newspaper matters are mentioned which are not even indirectly charged in the headlines, but are alleged in the article of which the headlines form a part. The fair and reasonable construction of the statement is the same as if the entire article had been copied verbatim in the body of the statement immediately after the words “ the following false, scandalous, illegal, defamatory and malicious writing and libel.” In view of the foregoing conclusion, it cannot be said that the words pleaded as libelous constitute a mere criticism of the plaintiff’s newspaper, although some of the allegations of the publication may be so regarded. Speaking of these first, we refer for illustration to a paragraph near the end, which is susceptible of meaning only that the plaintiff’s newspaper does not contain.all the news, or that it is not a publication in which people expect to find the news. Prima facie this is not actionable defamation of the publisher; hence there was propriety in requesting instructions that the jury could not find a verdict for the plaintiff because of any words published which are criticism only of the plaintiff’s newspaper, and not of him personally, and that the plaintiff could not recover except for words published of and intended to refer to him personally. As the counsel for the appellant says, here was a long article; in it there was a diversity of comment; some statements of actual facts; some mere criticism of a thing; some remarks, capable perhaps, of personal application. Therefore the requests were pertinent; they called for infractions that would lead the jury to distinguish between such parts of the article as constitute a mere criticism of a thing, and such as either directly or indirectly are defamatory of the plaintiff personally. We are of opinion that the points containing these requests should have been affirmed, and that the omission to affirm them was not cured by what was said in the general — 425 — charge, especially as in the portion of the charge quoted in the fifth assignment of error the learned judge instructed the jury that the article was libelous, without alluding to the distinction the jury would have been warranted in finding between its several parts. Therefore the fifth, nineteenth and twenty-third assignments of error sustained. But as to the principal allegations of the publication we are unable to agree that they constitute mere criticism of & thing. Sometimes “ an attack upon a thing may be defamatory of the owner of that thing, or of others immediately connected with it. But this is only so where an attack upon the thing is also an indirect attack upon the individual. If the words do not touch the personal character or professional .conduct of the individual, they are not defamatory of him, and no action lies unless the words fall within the rules relating to slander of title. But to impute that the goods which the plaintiff sells or manufactures are adulterated to his knowledge, is a distinct charge against the plaintiff of fraud and dishonesty in his trade : ” 1 Odgers on Libel and Slander, 80. This illustration of the general proposition that an attack upon a thing may be defamatory of the owner of that thing, or of others immediately connected with it, is pertinent here. To charge that a newspaper does not contain much news is not a reflection upon the personal character or the professional conduct of the publisher. The dissemination of news is not the only purpose for which newspapers are published. Some excel in this and some in other departments. But to charge that a newspaper “ has been as unreliable as cheap newspaper hired men could make it; ” that “ the brains of the former management have given place to a $7.50 a week handy man, who is expected to collect news, dun subscribers and advertisers for their overdue bills, solicit job work and calendar orders, help put up the mails, see the undertakers and doctors, and, in fact, many other duties that a newspaper man could not be expected to do; ” that “ it has deliberately printed news without any attempt to verify the facts ; ” that three men, giving their names, were grossly libeled by the newspaper “ in its criminal carelessness to verify the information it may have had before printing ” a certain article; that many “ fake news items ” have been published in it, is, in effect, to charge the publisher with these — 426 — derelictions. And the article in question leaves no room for reasonable doubt that such was the intention of the defendant. It speaks of the good reputation the newspaper had gained under the former editor, and then goes on to say that “ the present publisher has been living upon the reputation made by the late Mr. Davis through many years of the most careful newspaper work, but in late years the faith of the readers of the Ledger has. received numerous jolts.” In speaking of the above mentioned libel of the three men, the article declares: “ Each one of them would have had good cause for libel against the publisher of the Ledger were the latter responsible in a financial way.” A jury might well find that the defendant intended, not only to charge that the plaintiff had libeled these men, but to impute to him financial irresponsibility. Further, after stating that the plaintiff did not print an apology, as common justice would dictate, the article proceeds: “ The readers were left under the impression that the news as printed in the Ledger was true, and innocent men were left under the shadow of suspicion of a serious offense. This was only in keeping with the policy of the publisher of the Ledger, who has repeatedly made false statements in his columns, and only retracted them in cases where he was forced to do so.” It has been declared by high authority that a man who publishes a book “ challenges criticism,” and that he “ submits himself to the judgment of the public,” and the same is true of a man who publishes a newspaper. It is often difficult to draw the line where permissible, though severe, criticism of a book or a newspaper ends and defamation of the author or publisher begins; but we need not go into further detail to show that some of the allegations of the publication pleaded as libelous go beyond mere criticism of the plaintiff’s newspaper, and impute to him moral delinquency and violation of the criminal statute against libel, and that one of these allegations is susceptible of being construed by the jury as imputing to him financial irresponsibility. In such a case the social relations and standing of the plaintiff, and that he has a family, may be considered: Beehler v. Steever, 2 Whart. 313; Klumph v. Dunn, 66 Pa. 141. There was no error in the admission of the testimony embraced in the first assignment, or in the instructions complained'of in the eighth, ninth, twelfth, thirteenth, four — 427 — teenth, fifteenth, twenty-first, twenty-second and twenty-fifth assignments of error. They are overruled. The next question we are asked to decide is, whether it is not always competent for the defendant in a libel case to show, where it is possible, that no actual damage has been sustained. This question is supposed to arise upon the second and third assignments of error, in which complaint is made of the court’s refusal to permit the defendant’s counsel to prove by cross-examination of the plaintiff that his newspaper circulation and his business had not been injuriously affected by this publication. It is to be observed that at this stage of the trial no evidence had been adduced by the plaintiff upon this subject and in stating his objection to the offers the plaintiff’s counsel declare “ we are not attempting to show special damages; we do not propose to do that, and we do not claim that.” ■ In view of this express disavowal of the right to recover special damages, and of the state of the evidence, we are of opinion that the court committed no error in rejecting the points upon the ground of irrelevancy. Even if there were doubt upon this point, the rulings were correct because the plaintiff did not testify in chief to anything to which this was relevant cross-examination. The second and third assignments of error are overruled. Before objection had been made to this line of cross-examination the plaintiff had testified in answer to questions of the defendant’s counsel that he had not, to his knowledge, been refused any credit, nor suffered in his business any loss of credit, by reason of the article and this was made the basis of the defendant’s eighth point, the refusal of which is the subject of the sixteenth assignment of error. The point is somewhat broader than the plaintiff’s testimony. But assuming that the plaintiff had testified precisely as stated in the point, it was properly refused, if it was meant thereby — as seems to be the proper construction — that the fact that his credit had not been impaired or his business injuriously affected by the publication would prevent recovery of substantial damages. Where words are actionable as affecting the character of the plaintiff, he is always entitled to go to the jury on the question of general damages for the wrong done him in reputation, although no special damages has been alleged or proved: Meas — 428 — v. Johnson, 185 Pa. 12, and under the head of general damages the jury may award a substantial sum : Leitz v. Hohman, 16 Pa. Superior Ct. 276 ; Neeb v. Hope, 111 Pa. 145 at page 156. Therefore this assignment is overruled. It is urged in this connection that there is inconsistency between the reasons given for rejecting the evidence referred to in the second and third assignments of error and the instructions upon the question of damages (seventh assignment) in which the learned judge submitted to the jury to find from the character of the article “what is the evident effect it must have had upon the plaintiff’s business as a publisher of a newspaper.” If this question in this form was to be submitted to tbe jury at all, we are of opinion that in order to prevent misapprehension in the minds of the jurors as to the pertinency of their finding upon the subject, their attention should have been called to the plaintiff’s testimony just referred to and to his express disclaimer of right to recover special damages for injury to his business. We find no error in the instructions quoted in the tenth and eleventh assignments as to punitive damages. The Act of July 1, 1897, P. L. 204 provided that in no civil action for libel should damages be awarded beyond just restitution for injury actually sustained, and this was construed to prohibit the allowance of vindictive, punitive or exemplary damages or smart money: Goebler v. Wilhelm, 17 Pa. Superior Ct. 432. This act was repealed by the Act of April 11, 1901, P. L. 74, the third section of which provides that no damages shall be recovered unless it is established to the satisfaction of the jury, under the'direction of the court as in other cases, that the publication has been maliciously or negligently made, “but where malice or negligence appears such damages may be awarded as the jury shall deem proper.” Where a libelous article refers to a person named, or is so written that it will reasonably be taken to refer to him, it establishes legal malice within the meaning of this section; the act has not made any change in the law in this respect: Clark v. North American Co., 203 Pa. 346. Moreover, the Act of May 12, 1903, P. L. 349 provides that where the libelous matter has been given special prominence by the use of headlines and by other means calculated to specially attract attention the jury shall have the — 429 — right to award punitive damages. But irrespective of this act, if the jury found the facts recited in the instructions quoted in these two assignments, as they might, it was within their province to award punitive damages. Therefore these assignments are overruled. The quality of an alleged libel, as it stands upon the record, either simply or as explained by averments and innuendoes, is a question of law for the court, and in civil cases the court is bound to instruct the jury as to whether the publication is libelous, supposing the innuendoes to be true : Collins v. Dispatch Pub. Co., 152 Pa. 187; Pittock v. O’Neill, 63 Pa. 253 ; Price v. Conway, 134 Pa. 340; Meas v. Johnson, 185 Pa. 12; Leitz v. Hohman, 16 Pa. Superior Ct. 276; Goebeler v. Wilhelm, 17 Pa. Superior Ct. 432. But there is a manifest dis tinction between instructing a jury that legal malice is to be implied from certain defamatory words, and instructing them as to the actual motive of the defendant in publishing them. It was proper for the learned judge to say to the jury that the headlines were calculated to specially attract attention. That was an obvious fact which could not be well disputed. Perhaps it would not have been out of place for him to express his opinion that the publication was sensational in its make-up, provided care was taken to make the jury understand that his opinion upon that matter was not binding upon them. But the added remark that “ the motive, therefore, was evidently to attract attention rather than to give information ” might have a very prejudicial effect upon the jury in determining the question of damages, and we are not convinced that it was counteracted by the instructions which followed. Therefore the fourth assignment is sustained. The remaining question to be considered arises upon the sixth and twenty-fourth assignments. It is more clearly brought out in the point and answer quoted in the latter assignment, which were as follows : “ You cannot award plaintiff a verdict for any statement of fact in the alleged libel which you find from the evidence to be true. Amwer : This is refused, as by the pleadings the statement referred to is admitted to be false.” It should be noted that the evidence here referred to is the plaintiff’s testimony, for the defendant offered no evidence whatever. At common law the truth of any de: — 430 — famatory words was, if pleaded, a complete defense to a civil action for libel, and the defendant could, in mitigation of damages, justify as to one particular part of the libel, provided such part contained imputations distinct from the rest; but it was required that justification must be specially pleaded. The act of 1887, it is true, provides that the only plea to the action of trespass shall be “ not guilty,” but the common-law principle of pleading seems to have been restored by the act of 1901, which provides: “ In all civil actions for libel the plea of justification shall be accepted as an adequate and complete defense, when it is pleaded and proved to the satisfaction of the jury, under the direction of the court as in other cases, that the publication is substantially true and is proper for public information or investigation, and has not been maliciously or negligently made.” The form of pleading justification, under this act, whether by short plea or by a specification of particular matter under the plea of not guilty, is not necessary now to determine ; but we are not prepared at present to agree with the appellant’s counsel that justification may be considered as pleaded within the meaning of the act when under the plea of the general issue an offer is made at the trial to prove the truth of any libelous statement. But the question before us is not what it was necessary for the defendant to do in order to introduce evidence of justification, but whether the plea of not guilty is a conclusive admission of the falsity of the publication. None of the cases go so far as that, although some of the authorities speak of the falsity being presumed if there be no other plea. They do unquestionably hold that if there be no other plea the falsity of the statement need not be proved by the plaintiff, but it seems unreasonable to hold that if it appears in the development of the plaintiff’s own case that a particular, severable statement contained in the publication is true, the defendant is precluded by his plea from having the benefit of the evidence in mitigation of damages, particular^ where the statement if true was proper for public information. We are of opinion that too much significance was given to the plea as admission of the falsity of the publication, and that the point should have been affirmed. But it would have been proper in affirming it to have cautioned the jury as to the necessity of the evidence showing the substantial truth of the — 431 — particular severable statement as a whole. These assignments are sustained. Judgment reversed and venire facias de novo awarded.