Garvin v. Mercur , 1917 Pa. Super. LEXIS 61 ( 1917 )

Opinion by

Porter, J.,

This is an action of trespass for slander. The plaintiff recovered a verdict and judgment in the court below and the defendant appeals. The alleged slanderous statement was made by the defendant in a'speech which he delivered at a public political meeting. The statement of which the plaintiff complains was of considerable length and, as it will appear in the report of the case, it is not necessary that we should in this opinion incorporate the words used save only to the extent necessary to the discussion of the questions involved. The statement of the questions involved contained in the paper book of the appellant sets forth seven questions, but the first, second, third and sixth are but different forms of presenting the vital question in this case, viz: Did the court err in permitting the jury to find that the words spoken by the defendant constituted a charge that the plaintiff had been guilty of the crime of forgery? The remaining questions, as stated by appellant, are “Did the court err in refusing to permit the defendant to testify as to the language used and the intent with which he referred to the plaintiff?” “Did the court err in its charge in treating the words spoken as though they had been written and the writing thereof admitted?” And “Was the charge of the court inadequate, and in particular on the question of damages?”

The first question above stated is the important one and, in order to properly discuss it, it is necessary that we here quote part of the speech made by the defendant. “The leaders of the Republican machine in this county are dishonest, and if most of them had their just deserts they would be in State prison to-day. I will name some of them as I go along. Tom Garvin, chairman of the Republican County Committee. Now, gentlemen, I will tell you something that may be news to you with reference to Mr. Garvin. Last fall during our campaign a man went into Philadelphia to a......company in Philadelphia and signed a contract agreeing to pay one hundred dollars for posting certain fake Bull Moose and Progressive posters in certain precincts in this county. The man who went and signed that name forged the name of Prank G. Perrin. I don’t hesitate to say that Prank G. Perrin might have done this same thing, but he did not. His name was forged.” The remaining portion of the speech throws no light upon whether the “man who went to Philadelphia” was the plaintiff, nor does it in any way qualify what is above quoted with regard to the forgery of the name of Perrin. The plaintiff had incorporated in his statement, by way of innuendo, that the language above quoted charged him, the plaintiff, with having forged the name of Prank G. Perrin. The appellant contends that the words above quoted cannot be held capable of the meaning attributed to them by the innuendo. This contention is sought to be sustained upon two grounds: First, that the “speech discloses that he (the appellant) expressly avoids mentioning the plaintiff’s name in connection with the statement as to the forging of Frank G. Perrin’s name”; and, Second, even if the meaning of the words was that the plaintiff was the man who went to Philadelphia and signed the name of Perrin, yet the words as used did not charge the crime of forgery. With regard to the first branch of this contention, it is true that the defendant does seem to have expressly avoided saying in so many words that Thomas H. Garvin had forged the name of Frank G. Perrin to a contract agreeing to pay one hundred dollars for posting bills. The defendant had, however, immediately prior to making this statement assured his hearers that he was going to tell them “something that may be news to you with reference to Mr. Garvin,” and in the very next sentence he makes the statement with which we are now dealing. There was nothing in that sentence nor in anything else that the defendant said which tended to indicate that the man who signed the name of Perrin was any person other than Garvin, the man about whom he was then talking. The question is not whether the name of the plaintiff was used in the particular sentence in which the charge was made, but did the circumstances and the connection in which it was made indicate to those who heard it that the plaintiff was the guilty party: Hays v. Brierly, 4 Watts 392; Clark v. North American Co., 203 Pa. 346. The sense in which words are received by the world is the sense which courts of justice ought to ascribe to them in slander: Rue v. Mitchell, 2 Dallas 57. Equally without foundation is the contention that the words did not mean that the man who signed the name of Perrin had been guilty of the crime of forgery. Those who heard the words certainly must have understood them as meaning that the man who signed that contract to pay one hundred dollars, in signing, forged the name of Frank G. Perrin. That contract if genuine would operate as the foundation of a liability upon the part of Perrin, and the forgery of his name was clearly to the prejudice of his right. The contract was snch an instrument as to make the fraudulent signing of it an indictable offense, both at common law and under our statutes: Commonwealth v. Luberg, 94 Pa. 85. It is true that words spoken which import to charge one with immoral or disgraceful conduct are not actionable per se. The general rule, subject to exceptions which it is not necessary here to státe, is as follows: “In case the charge, if true, will subject the party charged to an indictment for a crime, involving moral turpitude, or subject him to an infamous punishment, then the words will be in themselves actionable”: Davis v. Carey, 141 Pa. 314. In an action for slander where the alleged slanderous words charge an indictable offense, it is for the court to decide whether the words —set forth — in the plaintiff’s statement are capable of the meaning ascribed to them by the innuendo, and for the jury to decide whether such meaning is properly-ascribed to them: Leitz v. Hohman, 16 Pa. Superior Ct. 276; Price v. Conway, 134 Pa. 340. It is not necessary, however, that the words spoken charging a crime should contain all the averments necessary to sustain an indictment for that crime; in order to make the words actionable per se. If A says that B murdered C, who was recently found dead, the words are actionable per se, although A did not say that B did the act feloniously. Forgery is a crime involving moral turpitude and subjecting the party guilty thereof to an infamous punishment. The court below did not err in holding that the words spoken were capable of the meaning ascribed to them by the innuendo, and properly submitted to the jury to decide whether such meaning was properly ascribed to them. If that was the meaning of the words, as the jury found, then the words were actionable per se.

The next question which appellant states to be involved : “Did the court err in refusing to permit the defendant to testify as to the language used and the intent with which he referred to the plaintiff?” is too broadly stated. The court did not refuse to permit the defendant to testify to anything and everything that he said. The defendant did not deny that he had used the language which has been above quoted. He was permitted to testify as to all the circumstances under which the words were uttered. He was distinctly permitted to testify that he bore no malice or ill will towards the plaintiff. The only thing which the defendant was not permitted to testify to was as to the meaning of the words which he did not deny that he had uttered. The speaker or writer of words is accountable for the import of the words as they will naturally be understood by the hearer or reader. The test of his liability in a civil action is not what was his secret intent, but what is the meaning of his words: Goebeler v. Wilhelm, 17 Pa. Superior Ct. 432; Hays v. Brierly, 4 Watts 395; Vanvechten v. Hopkins, 5 Johns 225. The meaning of the words was for the jury, to be ascertained in light of all the circumstances and all that was said upon the subject. The defendant was not deprived of the right to present all of the circumstances and relate all that was said. The evidence as to his secret meaning, when he used the words was properly excluded.

The court did not in its charge treat the words spoken as if they had been written. The court distinctly instructed the jury that unless they found that the defendant had, in the language used, charged the plaintiff with the crime of forgery then their verdict must be in favor of the defendant. The grounds upon which a recovery was permitted were those exclusively applicable in actions for words spoken. There was nothing in the charge from which the jury could have been led to believe that it would be proper for them to render a verdict in favor of the plaintiff without first finding that the words uttered by the defendant had charged the plaintiff with having been guilty of an indictable offense involving moral turpitude and subjecting him to an infamous punishment. The charge was not inadequate as to the measure of damages. The jury were told that, in case they found for the plaintiff, they should find damages in such amount as would compensate the plaintiff for the wrong against his good name. They were distinctly told that they were not to award punitive damages, by way of punishing the defendant. The charge was certainly free from error as far as it went, and if the defendant desired more elaborate instruction upon that point he should have submitted a request for the same.

The judgment is affirmed.