Good v. Grit Publishing Co. , 1908 Pa. Super. LEXIS 145 ( 1908 )

Opinion by

Rice, P. J.,

John Good, the father of the plaintiff, died intestate. John C. Good, another son, took out letters of administration upon his estate. He filed an account to which the exceptions were filed that are referred to in the newspaper articles upon which this action was brought. The particular part of the first article that is alleged to be libelous is as follows:

“O. W. and John C. Good “Charged With Having Stolen Most of > “Their Father’s Estate.

“Extraordinary Accusations Made in Exceptions to “Account Which Finds Practically No Estate.

“Exceptions have been filed to the final account of John C. Good, administrator of the estate of John Good, deceased, in which it is alleged that the administrator, and his brother, O. W. Good, robbed the estate of many thousands of dollars and then tried to cover their tracks by forgeries and frauds of many kinds.”

The article then detailed to some extent what the defendant alleged was the substance of the matters alleged in the exceptions, but did not set forth the exceptions verbatim. On the day following the publication of this article, the plaintiff brought an action of libel thereon in Lycoming county, and a week later 'the defendant republished the article together with the exceptions in full, the administrator’s account and extended comments, amongst which were the following: “That statement which is reproduced below was written after careful study of the bill of exceptions filed before the auditor, the Hon. Emerson Collins, in order to verify common report. That the public may see .how carefully it was prepared, the administrator’s account, the bill of exceptions together with other legal matter relating to the estate filed in the orphans’ court are also presented. It will quickly be seen that in the bill of exceptions the very charges can be found, which ‘ Grit ’ said had been brought against the Messrs. Good.” Later the plaintiff brought this action in Northumberland county, and declared upon the publication and republication of the part of the first article quoted at the beginning of this opinion, and the publication of the above quoted part of the comments contained in the second article. The case went to trial upon a plea of not guilty and resulted in a verdict in favor of the plaintiff for $100. From the judgment thereon he took this appeal.

It will be noticed that the defendant did not assert that the matters it alleged were charged in the exceptions were true; it simply published the charges it alleged' others had made. Nevertheless, the words being defamatory, it would not ordinarily be a bar to an action for libel that the report was a truthful recital of what was asserted by others: Oles v. Pittsburg Times, 2 Pa. Superior Ct. 130, and cases there cited. An\ exception to this general rule is made in favor of reports of proceedings in the public courts of law. In general, such reports, if fair, impartial and truthful, and there be no express malice, may be published without incurring liability to action, even though they give currency and publicity to defamatory accusations against individuals, which, otherwise, those accusations would not have. The reason commonly given for the exception is, that the general advantage accruing to the public from this privilege more than counterbalances all the disadvantages including the inconvenience to private persons whose conduct may be the subject of such proceedings. There are not many Pennsylvania cases in which this particular branch of the law of libel is discussed, but those that do relate to it recognize a qualified privilege as attaching to the publication of proceedings in the public courts of justice: McLaughlin v. McMakin, Bright. Nisi. Prius Rep. 132; Donnelly v. Public Ledger, 2 Phila. 57; Pittock v. O’Niell, 63 Pa. 253. It was impliedly recognized in Hayes v. Press Co., 127 Pa. 642, where it was said to be the common right of anyone to publish -the fact that a judgment had been entered against a person, substantially as shown by the record of the court in which it was entered; and in Pittock v. O’Niell, Sharswood, J., conceded the principle in this manner: “Had the publication been confined to the petition filed in the court of common pleas for a divorce, it might have been considered as privileged, and the plaintiff held bound to prove express malice.” Upon the same ground, the publication of a report of proceedings in the orphans’ court, such as are involved in this present case, must be held to be qualifiedly privileged; hence, if the defendant had simply published a copy of the exceptions to the administrator’s account, the plaintiff could not recover without proof of express malice. This is plain enough.

But the first article was not, and did not purport to be, a copy of the exceptions, but purported'only to be a statement in condensed form of the accusations made in the exceptions. Our attention has not been called to any Pennsylvania case which expressly decides whether or not this fact alone would deprive such an article as this of the privilege that ordinarily attaches to reports of judicial proceedings. But the text-writers generally agree, and in this they are supported by numerous decisions both American and English, that it is not absolutely necessary that the report be verbatim, in order to entitle the publisher to set up the defense of privilege: 25 Cyclopedia of Law and Procedure, 408, and note 6 on p. 409; 18 A. & E. Ency. of Law (2d ed.), 1045; Odgers on Libel and Slander (4th ed.), 298 (1st Am. ed.), * p. 250; Townshend on Slander and Libel (4th ed.), 354. We entertain no doubt that this is true, not only of the report of the trial of a case, but also of the report of matters of record, such as exceptions to an administrator’s account.

When, however, a publisher of a newspaper undertakes to give an abstract of such exceptions, instead of pursuing the more prudent course of publishing the exceptions themselves and leaving the public to judge of their import, he is bound to publish an accurate, truthful and impartial abstract. As the learned trial judge well said, he is bound to be truthful and fair in his statements as to what is or has been going on in court; he is privileged only to tell the truth; he is not privileged to exaggerate. If he uses words different from those used in the legal document to describe the allegations against the accountant, he must take care that the words he selects, the form in which they are placed and the comments that he makes do not convey to the minds of ordinary readers an impression that the alleged wrongdoings of the accountant are more flagitious than the exceptions themselves show them to be. Failing in this, he forfeits his privilege, and is held liable to action, as he would be if the charges he represents as having been made by the exceptant were made by himself.

Was this an accurate, truthful and impartial abstract of the exceptions? The appellant’s counsel claim that it was not, because it represented that the exceptions charged the plaintiff and his brother with having "stolen most of their father’s estate,” with having 'robbed the estate of many thousands of dollars,” and with having “tried to cover their tracks by forgeries and frauds of various kinds,” which charges or accusations, it is claimed, are not made in the exceptions. In disposing of this question, it is necessary to determine, first, the meaning of the words "robbed” and 'stolen” in' the connection in which they were used. If the meaning that is to be ascribed to them is that the plaintiff had committed the crime of robbery and the crime of larceny, as these crimes are defined in the statute, then the publication was not an accurate and truthful abstract or report, for neither of those crimes is directly or impliedly charged in the exceptions. But this is not conclusive of the question. It is not the intention of the speaker or writer, or the understanding of any particular hearer or reader, that is to determine the actionable quality of the words. It is rather the effect which the language complained of was fairly calculated to produce and would naturally produce upon the minds of persons of ordinary understanding, discretion and candor: Thompson v. Lewiston Daily Sun Pub. Co., 91 Me. 203; Goebeler v. Wilhelm, 17 Pa. Superior Ct. 432. The inquiry should be “what impression would be made on the mind of an unprejudiced reader who reads the report straight through, knowing nothing of the case beforehand:” Odgers on Libel and Slander (1st Am. ed.), 252. In the same connection the learned author suggests that in considering the question, isolated passages should not be too much dwelt upon, but the report should be considered as a whole. These principles are applicable as well to a newspaper article in which the writer undertakes merely to give a report of judicial proceedings, as to an article in which he speaks directly of the conduct of individuals. The word “steal” and the word “rob” have acquired many meanings by popular usage which are not equivalent to the technical definition of them in the law of crimes. In one connection they would imply the commission of the felonies of larceny and robbery, while in many other connections no such implication either of law or of fact would arise. How is it in this case? Thus far we have quoted only that part of the article which is alleged to be libelous. It is important also to look at the context. After alluding to’ some matters not necessary to be noticed here, the article proceeds as follows: “In this account the administrator claims to have paid to himself and to his brother, O. W. Good, three notes amounting to a total of $3,741.30, due to'them from their father. No return is made of the business of John Good & Sons, it being alleged by John C. Good, the administrator, that six months before his death, the father sold to him and O. W. Good the mill property for a consideration of $10,000. In the exceptions it is alleged that two of sundry notes paid by the administrator to O. W. Gopd are forgeries; and that the note to the administrator, if genuine, was obtained without consideration. It is alleged that John Good, deceased, was the head of the firm of John Good & Sons, and that the administrator, as liquidating partner of the firm, has failed to account for any part of the father’s interest in that firm, he alleging that his father had no interest. It is alleged that neither he nor O. W. Good paid $10,000 for the mill property which they allege they purchased; and that judgments of John Good have been improperly assigned to others in a way that defeats the estate.” This explanatory matter is in substantial accord with the exceptions, and gives the article an aspect that it would not have 'otherwise. Whatever else may be said of the defendant’s language, it cannot be said that it was the duty of the court to charge the jury that they must take it to mean that the plaintiff had been charged in the exceptions with having committed the crimes of robbery and larceny. I cannot see that the words construed with reference to the subject matter and the context were susceptible of that interpretation. At all events, the plaintiff has no just cause to complain that that particular question was submitted to the jury.

But although it be conceded that the words considered in connection with the subject matter and the context do not import that the plaintiff was charged in the exceptions with the commission of those specific crimes, yet it must also be conceded that the public might, and probably would, understand the article to mean, that the plaintiff and the administrator, conspiring together, had fraudulently, and by means of forgeries and other dishonest methods, misappropriated the funds of the estate to their own Use. This being so, the question arises whether the article so interpreted was a fair statement of what had been charged in the exceptions.

It will be well to notice briefly the functions of the court and jury in making the comparison between exceptions to an administrator’s account and a publication purporting to give an abstract of them. Exceptions to an administrator’s account are legal documents and the construction of them is for the court. It is for the court to say what standard the publisher of an abstract of them must conform to in order to keep within the privilege. To bé more explicit, it is the province of the court to construe the exceptions and determine what charges of misconduct they import. In a plain case it would be the duty of the court to go further and instruct the jury that the published report of them did or did not contain defamatory charges that the exceptions did not contain. See Pittock v. O’Niell, 63 Pa. 253; Pittsburg, Allegheny, etc., Pass. Ry. Co. v. McCurdy, 114 Pa. 554, and Hayes v. Press Co., 127 Pa. 642. But in a case where the published report is susceptible of two meanings, one of which is actionable and the other not, it would be the duty of the court to instruct the jury as to the legal import of the exceptions and to submit to them the question whether the report of them conveyed a different and more damaging meaning. Were it not for the explanatory matter contained in the article, this case would fall within the former class. But in view of the explanatory matter we are not convinced that the learned trial judge committed error in submitting the interpretation of the article to the jury. It remains to apply the foregoing conclusions to the facts of the case. The third exception was in .these words: “Exceptants except to the credit of $1,628.25 alleged to have been paid on May 15,1903, to O. W. Good upon a note dated December 2, 1899, for the reason that the signature of John Good to said note is a forgery.” The fourth exception related to another note and was in the same terms. We have examined the other exceptions with great care and are unable to find in any of them anything that can be construed as enlarging the charges, so far as the question of forgery is concerned, beyond what the words of the third and fourth exceptions imply. But it might well be that everything alleged in these exceptions was true without imputing to the plaintiff the forgery of the notes or guilty knowledge that they were forgeries; for, it is to be noticed, it is not alleged in the exceptions that he was the payee. In short, for aught that is alleged in the exceptions he may have acquired them honestly and may have presented them for payment in igno-> ranee of the fact that they were forgeries. It was not necessary for the exceptants to negative either of these inferences or presumptions in order to sustain their exceptions; nor did they negative them expressly o'r impliedly. On the other hand, the jury could scarcely avoid the conclusion that the publication complained of might and probably would convey the impression to the minds of ordinary readers that the plaintiff and the administrator were charged with having resorted to forgery in' order to cover up their criminal misappropriation of the assets of the estate. The jury should have been instructed that'this charge was not deducible from the exceptions, and that, if taking the article as a'whole, they interpreted it as above, then the defendant had exceeded its privilege, the article was libelous and the plaintiff was entitled to recover. This conclusion is required by, and is in accordance with, the general rule that 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’Niell, 63 Pa. 253; Price v. Conway, 134 Pa. 340; Meas v. Johnson, 185 Pa. 12; Binder v. Pottstown Daily News Pub. Co., 33 Pa. Superior Ct. 411.

The defense of privilege,' as related to the publication of reports of judicial proceedings, may be defeated by proof of express malice, and it is claimed by plaintiff’s counsel that there was inherent evidence of express malice iii the second article published by the defendant. On the other-hand, it is claimed, and the learned - trial judge took that view, that the circumstances under which the second article was'published rebutted any possible inference of express malice. We think the question was for the jury. In Barrett v. Long, 3 H. of L. Cas. 395, where' there was a plea denying actual malice, and stating the publication of an apology the court said: “We are all of the opinión that under such a plea the publication of previous libels oh the plaintiff by the defendant, is admissible evidence to show that the defendant wrote the libel .in question with actual malice against the plaintiff. A long practice of- libeling the plaintiff may show, in the most satisfactory manner, that the-defendant was actuated by malice in the particular publication; and that it did not take place through carelessness or- inadr vertence, and the more the evidence approaches to the-proof, of a systematic practice the more convincing it is. - The circumstance' that the other libels are more or less frequent, or more or less remote from the'time of the publication of that.in. question; merely affects the weight, not the' admissibility of the evidence.” Whether or not this rule should extend to publication'of libels of a different nature from that charged in ¡the-declaration need not be decided in this case: As regards repe-.' tition of the defamatory matter alleged in the déclaration, the rule, having regard to the reason of it, applies as well to subset quent as to previous publications, and so the law is- generally held." See Odgers on Libel-and Slander (4th ed.), 326-328'; To'wnshend on Slander and Libel-(4th ed.),-sec. 392.- ■ -In one-aspect of the present case the principle is applicable here. If the; first article, as interpreted by the jury, was not a fair report of the judicial proceeding, it would seem that the reiteration of it; - accompanied by the emphatic assertion-that it was true in-every particular, and the other comments' too extensive to quote here, would tend to show- that the first publication -was not-made through carelessness or inadvertence,-and might-be:the basis of an inference by the jury that the defendant was-actuated by actual malice. Of -' course- we do not say that the jury were bound to draw that inference. It-was proper for the court: to call their attention-to the 'circumstances of the republication: which tended to rebut the inference; but in holding, as we-understand the learned judge’s instructions to do, that the republication and-the accompanying comments were not, in any aspect-of the case, evidence from which the jury could infer- actual, malice, we'think there was error. .

■The next question to be considered is as-to the measure of; damages. The learned judge charged generally that -there-could be no recovery by the plaintiff- beyond what “would, compensate him for injury to his cháractér and his feelings^ to his character generally and to his feelings from the time of-the publication of the article up to the first day of January, 1904,” and specifically, that there coúld be no recovery of punitive damages. In addition to these instructions the court refused the plaintiff’s point to the effect that the jury might give punitive damages, if they found as a fact that the libelous matter complained of had been given special prominence by the use of head lines and display type and any other matter calculated to specially attract attention. This point was drawn under sec. 2 of the Act of May 12, 1903, P. L. 349, which was in force at the time of the publication and when suit was brought. The point was refused because, in the opinion of the learned judge, there was no special prominence given to the article over other matter in the paper by the use of head lines, displayed type or in any other way. It is true, as he pointed out, that many other articles were given equal, and some of them greater, prominence in the newspaper, but it is also true that it was given greater prominence than many other articles by means that were calculated to specially attract attention. We do not construe the act to mean that special prominence over every matter published in the newspaper was required. Under the evidence of the witnesses, and the evidence furnished by the newspaper itself, this was not a case for binding direction either way. The jury who heard the witnesses, and saw the newspaper, had as good opportunity as we have, or as the trial judge had, to determine the question of fact — for we can not regard it otherwise — and while it was not out of place for him to express his opinion upon it, it should have been left finally to their determination. Moreover, we are unable to conclude that if the act of 1903 were out of the way, there could be no finding of facts by the jury which would support an award of punitive damages. On the contrary, if the jury found that the article was not a fair report of the judicial proceedings to which it related, that it was calculated to convey the impression to ordinary readers that the exceptions, charged the plaintiff with crimes, which they did not charge, that special prominence was given to the article by the use of headlines, displayed type and other matter calculated to specially attract attention, and that the defendant was actuated by special malice against the plaintiff, it would have been within their province to award punitive damages, but they would not have been bound to do so. The question was for the jury under appropriate instruction by the court as to the findings of fact which would or would not support such award: Clark v. North American Co., 203 Pa. 346; Binder v. Pottstown Daily News Pub. Co., 33 Pa. Superior Ct. 411, at p. 428.

The article in question did not purport to have been published upon information received from others, but was published upon, the defendant’s knowledge of what the record contained. Furthermore, it was reiterated with emphatic assertion that it was truthful in every particular. In such circumstances it was not competent to show in mitigation of damages that another newspaper had previously published a substantially similar report of the same judicial proceeding: Hayes v. Press Co., 127 Pa. 642; Clark v. North American Co., 203 Pa. 346. It was also irrelevant to show that the plaintiff had not published a denial of the article published in the other newspaper. In the last cited case the court said: “All the assignments in reference to the accounts of the same transaction in other newspapers are sustained. Such accounts were not admissible in evidence for any purpose: Pease v. Shippen, 80 Pa. 513.” It is argued that this means simply that they were not admissible for any purpose under the facts of that case. Assume this to be true (although, it should be noticed, some of the authorities state the rule in broader terms), yet even in that view of the decision it is authority for the general proposition that you cannot show, even in mitigation of damages, that the plaintiff’s reputation had been damaged by the previous publication of the libel by another person. In such a case the law will not undertake to apportion the pecuniary injury to the plaintiff’s reputation between the two wrongdoers, and we can see no substantial difference between that and an attempt to apportion the injury to his feelings.

But it was competent fGr the defendant to prove the general reputation of the plaintiff for honesty. The later cases establish the principle, that in an action for slander or libel, where the general issue is pleaded, the.defendant may show, in mitigation of damages, the general bad reputation of the plaintiff "for the particular thing .with which he is charged”’ Drown v. Allen, 91 Pa. 393; Conroe v. Conroe, 47 Pa. 198; Moyer v. Moyer, 49 Pa. 210; Neeb v. Hope, 111 Pa. 145; Clark v. North American Co., 203 Pa. 346. In the first case., where the alleged slander consisted in the charge that the plaintiff was a thief and had stolen a sheep, it was held competent to ask a witness, 7 What is the general reputation of the plaintiff as to being a •thief?” This is cited in support of the proposition that in.such a ease it would not be competent to prove the general reputation of the plaintiff for honesty. We think the case .does.not go as far as.that. But even if it does, it does.not rule the case •before us. The purpose for which the testimony of reputation is-admitted is .not to establish the probability of the truth of the charge,: but to show that the plaintiff’s reputation in the particular involved in the defamatory charge “is not so valu- ■• able, commercially speaking, ■ as , a .reputation which is- un- • spotted.” If dishonesty is involved in the defamatory charge, as it is in this case, we think it clear that although there be an «additional charge of criminality, proof of the plaintiff’s bad reputation for honesty would be admissible. Therefore, there •was-no error, in admitting such evidence in the case, or in the learned judge’s comments on it in his charge to the jury.

' There are twenty-three assignments of error in this case. We have not.deemed it necessary to discuss them separately ■or in groups, but have endeavored.to cover the essential points involved in the appeal, and «to show wherein. we agree, and -wherein we are unable to agree, with the learned trial judge.

' The judgment is reversed and a venire facias de novo, .is awarded.