Burkhart v. North American Co. , 214 Pa. 39 ( 1906 )

Opinion by

Mr. Chief Justice Mitchell,

The first four assignments of error are to the rejection by the learned judge at the trial of offers to show the high professional reputation of the plaintiff as a musician. All the cases agree on the general rule that such evidence is not admissible until his reputation has been attacked. In Clark v. North American Co., 203 Pa. 346, this subject was expressly considered and it was held that the attack which would open the rule need not be by direct testimony but might be indirectly through slurs and insinuations in cross-examination, and other ways equally damaging though covert. But in the present case there was no attack of any kind, open or covert, on plaintiff’s reputation at the trial, and no occasion to deviate from the general rule.

The fifth assignment is to the affirmance of the defendant’s point that: “ If the jury believe that the article published does not designate or identify the plaintiff the verdict would be for the defendant. ” It is conceded that the plaintiff was not referred to by name, and if he was indicated at all it was by a general reference to the musical instrument which he played on the occasion described. A party need not be named, if pointed to by description or circumstances tending to identify him : Clark v. North American Co., 203 Pa. 346, and in general it is the better practice for the judge to explain the law in this aspect clearly to the jury. But in the absence of request by plaintiff for specific instructions on this point, the answer of the court in view of the slight evidence looking to identification of the plaintiff could hardly be considered as erroneous, even if it stood alone. But it was part of a charge in which the jury were told that while the plaintiff was not specifically mentioned by name he complains: “ That he is sufficiently identified in it from the fact that, as he was the only person in this orchestra who played an instrument called a bassoon, the article must necessarily refer to him. This is for you. Do you think that it does, or do you think that it does not?” This cannot be said to be inadequate in the condition of the testimony.

The remaining assignments to the affirmance of points that if the article as published was substantially true and if it correctly reported the facts without any reflection on plaintiff’s professional capacity the verdict should be for defendant, do not require extended discussion. The truth of the facts published is in general a defense in a civil action for libel, though the benefit of such defense may be lost where the matter described was a private one with which the defendant or the pub-lie had no legitimate concern, or where, even if the substance of the matter was proper, the manner and style rendered the publication libelous. The appellant has discussed the acts of 1897 and 1901 in reference to justification. But no question of justification arises in the case. It was neither pleaded nor set up by offers of evidence. The defense was that the article did no injury to plaintiff as it did not identify him at all, and even if it had done so it was not libelous. It is at least doubtful if this last claim would not have to be sustained if put to the court in a direct point: Collins v. Dispatch Publishing Co., 152 Pa. 187. The article was apparently not in itself libelous as to plaintiff. To ordinary apprehension the only person subjected to ridicule was Mrs. Carter whose whims were described in a somewhat sensational manner. But she, being of sensational temperament and in a sensational profession, does not seem to have objected to it. Plaintiff being an artist, with the artistic temperament, was perhaps unduly sensitive, but on a fair review of the whole matter we are obliged to agree with the jury that he had no real ground of complaint.

Judgment affirmed.