Moore v. Leader Publishing Co. , 8 Pa. Super. 152 ( 1898 )

Opinion by

Beaver, J.,

A communication to be privileged must be made upon a proper occasion, from a proper motive, in a proper manner and based upon reasonable or probable cause: Briggs v. Garrett, 111 Pa. 404, 414; Conroy v. Times, 139 Pa. 334.

The plaintiff complained of an article published by the defendant, in which she was charged with aggravated assault and battery upon one Bowers. The facts contained in the publication were furnished by a news agency which employed the reporter who wrote the item based upon information which he had obtained from different persons including the superintendent of the bureau of police and Bowers, the person who had been assarilted. He had also been informed, before the article was written, by the police officer to whom the warrant had been given to be executed, that no person bearing the name mentioned in the warrant lived at the place alleged in the information to be her residence. The article was published as written by Scott, the reporter, and furnished by the news agency which employed him, to which the headlines were added in the office of the defendant as follows: “ Who is Mrs. Moore ? She assaulted a fruit man who called to collect a bill and now, when a warrant is out for her, has changed her personality. Isadore Bowers had tough luck, for he not only lost his fruit but got a poker thrashing for trying to collect the cash.”

The third, fourth, ninth and tenth assignments of error relate to the general instructions given by the court and the answers to the defendant’s points regarding the character of .the publication. ' The court held, as a matter of law, that the publication was in no sense privileged or quasi privileged and in this there was no error. The publication lacks every element of a privileged communication. The manner of its publication, as shown by the headlines, was sensational. The motive, therefore, evidently was to attract attention rather than to give information. “ If the manner be improper, the privilege is lost:” Wallace v. Jameson, 179 Pa. 98. It was held in Pittock v. O’Neill, 63 Pa. 253: “ 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, but the comments which accompanied it deprived it of its privilege. It has been held to be libelous to publish a highly colored account of judicial proceedings mixed with the party’s own observations and conclusions: Stiles v. Nokes, 7 East, 493; Lewis v. Clement, 3 Barn. & Ald. 702.” If the plaintiff had occupied any relation to the public which made it proper to publish the facts in relation to her everyday life or if the article in question had pretended to be the report of a judicial proceeding, it is possible that the manner in which the communication was published might haye been a question for the jury. As was said in Wallace v. Jameson, supra, in which the plaintiff was a candidate for office: “While a fair account of the transaction which was the basis of the publication would have been privileged, the manner and style of this account and comment were for the consideration of the jury, to determine if the privilege had been exceeded, and were properly submitted to them for that purpose.” In the case under consideration, however, the proper basis for the publication is lacking, inasmuch as the plaintiff occupied no relation to the public which made it proper to publish the details of her private affairs, nor were there any other facts in the case which brought it within the rule of being made upon a proper occasion.

The publication was libelous per se. It was said in Pittock v. O’Neill, supra: “As our declaration of rights succinctly expresses it, the jury have the right to determine the law and the facts in indictments for libel as in other cases. But in civil cases the court is bound to instruct the jury as to whether the publication is libelous, supposing the innuendoes to be true; and, if that instruction is disregarded, the verdict will be set aside, as contrary to- law.” The only justification for the libel in this case was the truth of the facts stated in the publication and this would seem to have been the only question for the consideration of the jury. There was scarcely a pretense at the trial that the facts were true. Even if the reporter had been the agent of the defendant, the information upon which he prepared the article, coupled with the fact that he had been informed that no one' bearing the name of the plaintiff lived at the place at which the alleged aggravated assault and battery took place, was clearly insufficient to constitute reasonable or probable cause: Shelly v. Dampman, 1 Pa. Superior Ct. 115. These assignments of error are, therefore, all overruled.

Complaint is made by the appellant that it was not allowed to ask the reporter “ whether or not the information that you received from those parties tended to convince your mind as to the probability of the story told you by Mr. Bowers.” The objection to this question was properly sustained. The subject of inquiry was not the mental processes of the witness but the facts upon which probable cause was to be based. The testimony was, therefore, properly excluded, as was also that offered by the defendant and rejected by the court which relates to the fact of the assault and battery having been committed. The question was not whether Bowers had -been beaten but whether the plaintiff had beaten him. Inasmuch as the offer does not propose to show that the plaintiff was present and by its very form practically admits that she was not present, the mere fact of the beating, so far as she was concerned, and for the purposes of the trial of the action for libel, was irrelevant and entirely immaterial.

The instruction of the court as to the measure of damages was neither very full nor very explicit but it was not erroneous and, if the defendant had desired more specific instructions upon that subject, it should have asked for them; and, as this is the only subject upon which the charge of the court, as we view the case, can be said to be in any sense inadequate, the sixth and seventh assignments are not sustained.

The publication being libelous per se, malice was to be inferred and it was not necessary to prove express malice nor special pecuniary damages to entitle the plaintiff to recover. Unless, therefore, the facts contained in the publication were true, she was entitled, as damages, as stated by the court, to “ a fair compensation for injury resulting to her from the publication of the article.”

The facts were for the jury and, under no circumstances, as they were developed would the court have been justified in affirming the defendant’s first point “ that under the pleading and evidence the verdict should be for defendant.” We see no objection to the form in which the court submitted the questions referred to the jury for their finding: “Is the article libelous, under the definition which I have given you; and, if it is, then are the statements contained in the article true ? ” Taken in connection with the sentence which precedes that to which exception is taken, “ because if they (the statements in the article) are true, although the statement may be libelous in its character, if true, that is a defense to the action.” The fifth and eight assignments are, therefore, also overruled.

Upon a careful consideration of the entire record, we find no reversible error and the judgment is, therefore, affirmed.