Wood v. Boyle , 177 Pa. 620 ( 1896 )

Opinion by

Mr. Justice Gbeen,

We are clearly of opinion that in every point of view, and in every way of reading the publication in question, it was plainly and grossly libelous in itself. Nor is there the slightest reason or excuse for the attack upon the plaintiff in the contention now made that he was an official person, engaged in a business of a public character, and therefore the publication was privileged. It was not his official character or the conduct of his official business that was impeached. On the contrary the publication was a coarse, brutal, malevolent and purely personal attack upon the plaintiff in his private, individual and personal capacity. The words used are not in the least degree ambiguous, their meaning is perfectly clear and plain, and they do not require the help of any innuendo. The full proof of this is the mere citation of some of the words of the libel. Thus “ Without a following in politics, he has set up a political boss; without brains or capital or credit he has appeared at the head of a gigantic business enterprise requiring liberal bank balances and a large mental endowment.” Every word of this is private and personal only. It is an assertion that the plaintiff, that is, the individual, was a person “without brains,” that he was “without credit,” and that he was “without capital.” There could not be a more personal accusation than is contained in these words. There is nothing official about it. When it was added in the immediately following words and as a part of the same sentence that “ he appeared at the head of a gigantic business enterprise requiring liberal bank balances and a large mental endowment,” it was clearly implied that he was entirely unfitted for such a position because he was without brains or capital or credit. These deficiencies are of course purely personal and would, if true, disqualify him as an individual from the occupancy of such a place in the business world.

Another sentence of the article is no better than the last in this respect. “ He never yet has succeeded in anything he has undertaken involving the peace and prosperity of the community, for the excellent reason that he is invariably associated with movements that ought not to succeed.” That is, the plaintiff, as an individual, was invariably associated with enterprises which did not succeed because they ought not. Whether they were disreputable, or. fraudulent, or immoral makes but little difference. In any view of the words, they, and consequently he, were subject to just reproach and condemnation. If he was a person of that character he was to be despised and condemned by all good citizens and, especially, he was unworthy to be employed in the management of any business enterprise.

Another sentence of the article is still worse: “We dare say that his scheme to steal a pipe line from the poor producers in order to give it to the opulent refiners and arrogant exporters masquerading as the United States Pipe Line, will fail, as it properly should.” Granting that tins was not a literal charge of larceny, in that the subject was not a tangible chattel, yet it was an accusation of very gross fraud, practically amounting to an attempt to divest the title of the real owners to a valuable property and give it to others without consideration. In moral character it was as evil an act as the embezzlement of corporate money by a person having it in his custody. It is not necessary to pursue tins branch of the discussion. In many of the decided cases the publications adjudged to be libelous were far less offensive than this. Thus in Hayes v. Press Co., Limited, 127 Pa. 642, we held that the following publication was libelous.

“ HOTEL PBOPBIETOBS EMBABBASSED.”

“A judgment was entered by the Third National Bank against J. F. and W. N. Hayes, of the St. George Hotel, on a promissory note dated August 6th, and payable on demand for $1,500.” While the mere statement of the entry of a judgment was a matter of public information and appeared upon the records of the courts, the mere use of the word ‘ embarrassed,’ in the same connection, was held to be libelous. The present Chief Justice, delivering the opinion, said, ‘ Written or printed words which are injurious to a person in his office, profession, or calling, or which impeach the credit of any merchant or trader, by imputing to him insolvency, or even embarrassment, are libelous. The law carefully guards the credit of merchants and traders. Imputations of their solvency, or suggestions that they are in pecuniary difficulties, etc., are as a general rule actionable : Odgers on Libel, 19, 29, 80, 81, and authorities there cited. . . . The office of an innuendo is to aver the meaning of the language published, but if the common understanding of mankind takes hold of the published words, and at once, without difficulty or doubt, applies a libelous meaning to them, an innuendo is not needed, and if used may be treated as useless surplusage. . . . The publication as a whole, including the headline, was in no sense privileged.” If the mere implication from the use of the word “ embarrassed,” makes a publication libelous, with how much greater force does that conclusion follow from words which directly charge against a citizen that he is without brains, credit or capital ? How much more severely do they impugn his business capacity, and his business standing and character in the community?

In Collins v. Dispatch Publishing Co., 152 Pa. 187, we held that any publication, injurious to the social character of another and not shown to be true, or to have been justifiably made, is actionable as a false and malicious libel.

It is needless to argue the direct application of that principle to the words of the publication in the present case. The words used in the case cited were, “ complaints from outside parties were sent to the department, one asking for his dismissal on account of intimacy with a well known young local elocutionist.” Of these words we said, “ On their face, without more, the words complained. of are defamatory and actionable. In the statement they are laid with an innuendo which, if true, intensifies and greatly aggravates their meaning.” This is precisely true of the present case. The words used are far more damaging, scandalous and defamatory in themselves, than the words used in the last cited case, and are therefore manifestly libelous in themselves, and the innuendo “ greatly aggravates their meaning.” Further argument on this subject is superfluous. Other and equally strong cases will be found in Conroy v. Pittsb. Times, 139 Pa. 334; Seip v. Deshler, 170 Pa. 334, and numerous decisions there cited.

It is almost unnecessary to add that no attempt was made by the defendant to prove the truth of the matters contained in the libel, and it is most certainly true that the publication was not privileged. The truth of the innuendoes, and the question of damages, were submitted to the jury with entire correctness. So far as we can see the publication in question was a wanton, malicious and utterly unjustifiable attack upon the personal and business character of the plaintiff, without the least cause or reason. The defendant has much reason to be thankful for the extreme moderation of the verdict. The views we have expressed dispose of the second, third, fourth, fifth, sixth, seventh, eighth, ninth, and tenth assignments of error. They are all dismissed.

It is very doubtful whether a question of privilege in the service of the writ can be considered in error after a trial on the merits. But if it can, the great preponderance of authority is- that the defendant in a criminal case is not privileged from arrest on civil process, while attending court, to answer a criminal charge. There are a few contrary decisions in the lower courts but none in this court, nor in any other court of last resort, English or American, to which we have been referred. In the case of Key v. Jetto, 1 Pittsb. Rep. 117, Judge Woodward, sitting at nisi prius in 1854, held that the privilege did not extend to defendants in criminal cases. In 1 Am. & Eng. Ency. of Law, p. 724, there is an extensive collection of decisions of both English and American courts of last resort, in all of which it is held that the privilege did not extend to defendants in criminal cases. We see no good reason for departing from the current of authority on this subject. The first assignment is not sustained.

The eleventh assignment raises the question whether judgment could be entered on the verdict, where the plaintiff has died after verdict and before judgment. In Chase v. Hodges, 2 Pa. 48, it was held that the death of the defendant between verdict and judgment, if not more than two terms intervene, cannot be averred for error since the statute of 17 Ch. II. ch. 8; 1 Jas. II. ch. 17, sec. 5. Burnside J., said, “The statute of 17 Charles II. ch. 8, made perpetual by 1 James II., ch. 17, sec. 5, enacts, that when either party dies between verdict and judgment, the death shall not be averred for error, so that the judgment be had within two terms after verdict.” The same ruling was made in Murray v. Cooper, 6 S. & R. 126. The English cases are to the same effect, and all that it is necessary to do is to enter the judgment within the two terms which was done in this case, nunc pro tunc.

The case of Stroop v. Swarts, 12 S. & R. 76, is not in point. There the wife did not die until after the judgment had been arrested for other cause, and hence there never was any judgment in the court below. Here the death of the party between verdict and .judgment, under the statute, did not prevent the entry of judgment within the two terms. Hence the record was complete and a valid final judgment was entered in the court below before the appeal was taken. Of course such a judgment could not be reversed on appeal for such a reason. In Griffith v. Ogle, 1 Binn. 172, the situation of the record was precisely as it is here. The action was case for conspiracy. The plaintiff recovered a verdict for $600 in October, 1802. Reasons for a new trial and in arrest of judgment were filed which were overruled in October, 1804. The plaintiff died in March, 1803, and the court below entered judgment on the verdict as of a term in which the plaintiff was living, and this court sustained the judgment.

The eleventh assignment of error is not sustained.

Judgment affirmed.