McAndrew v. Scranton Republican Publishing Co.

Opinion by

Ms. Chief Justice Maxey:

This is an appeal from the judgment of the Superior Court affirming the judgment of the Court of Common Pleas of Lackawanna County, denying defendant’s motion for judgment n. o. v. The plaintiff brought an action of trespass for libel as a result of an article published by the defendant in its newspaper during a political campaign in Lackawanna County in 1946, reporting a political meeting which occurred in Mayfield Borough, Lackawanna County, on a certain Sunday afternoon. At that meeting Captain Fraser P. Donlan, who was Republican nominee for State Senator, made an address. He appeared in uniform, as he was still an officer. During the recent war he had his leg shot off while serving with the Marine Corps in action at Okinawa;

The article alleged that Matthew McAndrew took the platform and declared that the wounded Marine officer was trying to get sympathy votes by “carrying the flag”. The article also said that McAndrew in replying to G. O. P. charges that “Communism found a home in the Democratic Party” apologized by saying: “Of course, we all have to have a little Communism today.” Tlie entire publication is set forth below.¹

Following this newspaper article action was brought against the appellant for libel. During the trial the' appellant duly moved for a compulsory nonsuit and subsequently moved in writing for a directed verdict in its favor, both of which- motions were denied. The case was submitted to the jury and a verdict in favor of the appellee in the sum of $900.00 was returned. Judgment was duly entered on the verdict. The jury also answered certain interrogatories. Defendant filed its motion for judgment n. o. v., which was denied. On appeal the Superior Court affirmed the judgment. An appeal to this court was then allowed.

The pivotal questions in this case are: 1. Was the publication complained of capable of a defamatory meaning? 2. When the trial court concluded that the publication in question was on a privileged occasion and made from a proper motive and in a proper manner, and when the plaintiff offered no evidence of the abuse of a privileged occasion, should not the court have directed a verdict for the defendant?

At the trial Thomas F. Phillips, City Editor of the defendant Company, testified as to the origin of the publication of the article. Attorney Harold A. Scragg reported the matter to him and told him that Joseph Marzzacco, Esq., and James Scoblick, Republican candidate for Congress, both of whom were also present at the May-field meeting, would report the facts to Mr. Phillips. The latter then called Mr. Marzzacco, who replied: “I was there and I will give it to you exactly how it happened,” and Mr. Phillips took down the story. He “read it back” to him and had it confirmed. In the meantime Mr. Phillips received a telephone call from James Scoblick, to whom Phillips then read the story, and Scoblick replied: “That’s precisely what happened.” Mr. Phillips added: “On the basis of that information I phoned the story in to the office and sent word to the man who was working the city desk that I had checked the story out.”

In his opinion refusing judgment n. o. v. in this case President Judge Hoban said: “The published words in this case are actionable provided they are in fact defamatory and are published in such a manner as to constitute a libel. A. communication is defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing Avith him.” He then said: “. . . the question arises as to Avhether the printed report of McAndrew’s actions or sayings at the political meeting Avould tend to lower him in the estimation of the community in Avhich he lives, or to deter persons from associating or dealing AAÚth him.” He also said: “. . . initially it is the function of the Court to determine Avhether the communication is capable of a defamatory meaning, and if the Court finds that such a meaning is not capable of being derived from the communication, the judge Avould have to grant a nonsuit, give binding instructions or judgment n. o. v. as appropriate.” Pie then said: “The trial judge decided that such a [defamatory] meaning could be derived from the publication and that it was his duty to submit the question, as to whether such a meaning actually was derived by the recipients, to the jury.” Judge Hoban then said: “The writer of this opinion, if he were one of the original recipients, would probably not have taken a defamatory meaning from it, but he can see how easily sentimental people at the time and place would have received the remarks and imputations attributed in the article to McAndrew. . . . So also with that part of the communication which attributes to McAndrew a statement that we all have to have a little Communism. Such a statement as indicating association or sympathy with a group or political organization which a substantial part of our citizens regard as a discreditable one, is capable of a defamatory meaning.”

As to the defendant's allegation that no special damages were either alleged or proved, Judge Hoban said: “For our purposes we may say that publication by a newspaper of general and wide circulation of defamatory matter is libelous. . . . One who falsely and without a privilege to do so publishes matter defamatory to another in such a manner as to make the publication a libel is liable to the other, although no special harm or loss of reputation results therefrom. ... In other words, if the publication of defamatory matter is done in such a way as to constitute libel, it is actionable per se without either the allegation or proof of special damages, unless excused by the defense of truth or privilege, and as to these defenses the burden is clearly upon the defendant to prove.” Judge Hoban then said: “. . . the trial judge correctly considered that the occasion for the publication, to wit, the report of a political meeting of interest to the public, was 'a privileged occasion and that the publication was made from a proper motive and in a proper maimer. The only question which the trial judge considered should be submitted to the jury was whether or not the defendant had reasonable and probable cause to believe in its truth.”

The court was in error in saying to the jury: “The question for you to determine is whether at that time and under the circumstances, the publication of the fact that McAndrew is supposed to have said that Donlan, a Marine officer, was trying to get sympathy votes by wearing his uniform and using the flag, was actually harmful to McAndrew?” Before so instructing the jury, the court had determined that the communication was capable of a defamatory meaning. This determination is subject to review on appeal. Statements cannot be adjudged defamatory merely because they are annoying and embarrassing to the person to whom they are attributed. We have never found in any law report a case of a libel suit being successfully maintained against any person because of the latter’s erroneous report that another person said that a candidate for public office was seeking the election on the basis of his military exploits, though such comments in a campaign are not unusual.

A might falsely report that B, a member of political party X, had declared that in the forthcoming election he was going to vote for the candidates of party Y. This report might be very annoying and embarrassing to B but he would not be defamed by it. Not every lie is a libel. A might falsely report that B had said that C was seeking votes because of his race or had said that D, who happened to be a fine tenor singer, was trying to “sing his way” into public office. While such reports might be very annoying and embarrassing to B, they would not justify an action for libel against A. Many men in public life and in private life have been greatly annoyed by being misquoted. But annoyance does not constitute defamation.

It would doubtless be very annoying for a man to be charged with bigotry of any kind, yet it has been held that for a man to be charged with such bigotry is not defamation. In Sweeney v. Beacon Journal Pub. Co., 66 Ohio App. 475, 35 N. E. (2d) 471, a member of the United States Congress brought an action of libel against a newspaper which published a daily syndicated column stating that the congressman was opposing the appointment of a certain individual to a federal judgeship, because that individual was a foreign-born Jew. In overruling plaintiff’s appeal from judgment against him on a question of law, the appellate court said: “Does the article reflect upon his character in such a manner as to bring him into ridicule, hatred or contempt?” This question was answered in the negative. And in Sweeney v. Philadelphia Record Company (CCA, 3d Cir.), 126 Fed. (2d) 53, where there was a similar action based on the same syndicated article, the Circuit Court of Appeals held that the publication “at the most charged [the congressman] with being a bigoted person” who was actuated by a prejudice of an unpleasant and undesirable kind but it was not libelous per se and the action could not be sustained.

Plaintiff in his statement of claim avers that the statement that Donlan “was trying to get sympathy votes with his uniform and carrying the flag” was equivalent to saying that he was charging Donlan with “trying to capitalize upon and get political support by the improper use of his service uniform, and by appealing to the sympathy of persons by an improper use of the United States flag, rather than by reason of his competency for the office to which he as candidate was aspiring, . . .”

It is elementary that “ ‘An innuendo, however, can never add to nor change the [alleged] meaning of the defamatory statement, or operate as an averment, imparting into the statement anything which is not a usual and natural presumption from the precedent words.’ ” Quoted in Liacopoulos v. Coumoulis, 298 Pa. 329, 148 A. 474, from Cunningham v. Underwood, 53 C. C. A. 99, 116 Fed. 803. See also eases therein cited. While it is a question of fact for the jury as to whether the defamatory statement was used and understood in the sense charged, the jury cannot be permitted to do this until the court has correctly determined that the statement supports the meaning plaintiff attributes to it.

In Sarkees v. Warner-West Corporation, 349 Pa. 365, 37 A. 2d 544, this Court in an opinion by Justice Hughes said: “The innuendo must be warranted, justified and supported by the publication. . . . ‘But it cannot be used to introduce new matter, or to enlarge the natural meaning of the words, and thereby grre to the language a construction which it will not bear: Hackett v. Providence Telegram Publishing Co., 18 R. I.589. It is the duty of the court in all cases to determine whether the language used in the objectionable article could fairly and reasonably be construed to have the meaning imputed in the innuendo. If the words are not susceptible of the meaning ascribed to them by the plaintiff and do not sustain the innuendo, the case should not be sent to a jury.’ See Ringer v. Winner, 309 Pa. 270, 163 A. 519.”

Even if the statement is given the meaning which the plaintiff attributes to it, it is not defamatory. If Captain Donlan, who was a Avar casualty with a splendid record of service, Avas seeking votes because of that record, his doing so Avas neither unusual nor improper. Throughout all our history, many men avIio have achieved distinction in Avar, have sought the suffrages of their felloAv citizens solely because of their Avar record. At least tuvo military chieftains, Taylor and Grant, Avere named by their respective parties as candidates for president of the United States because of their war records. If A had reported that B had said that either one of these candidates was “trying to get sympathy votes witli his uniform and by carrying the flag,” B would not have any ground for an action of defamation against A, nor would either of these candidates. Many of us can think of eases where men who have been blinded or disfigured by Avar, have been elected to office because of that fact and it Avould not be defamatory for anyone to declare that another had said, that these candidates were seeking “sympathy votes.” Nor is there any justification for the innuendo alleging that the statement attributed to McAndrew meant that McAndreAV said that Donlan Avas making an improper use of the United States flag. The phrase “using his uniform and the flag” was very much like the oft-used phrase “Avaving the flag.” It does not imply that there is any desecration of the flag.

When men with military records become candidates for political office and they or their partisans unduly emphasize their military records or if the candidates appear or are advertised in uniform, there is sometimes adverse comment on the “bad taste” involved but such adverse comment is not defamatory.

Nor Avas the statement attributed to McAndrew to the effect that “we all have to have a little communism today” libelous. For one to favor a “little communism” does not mean that he favors the overthrow of our government by force or that he endorses any other illegal, immoral or unpatriotic program.² On October 28, 1946 Avhen the alleged libel was published, the relations between the United States and Russia were very friendly and the public mind had not then identified communism with Russian imperialism and terrorism. To say a man is a communist or a socialist is not to defame him. There is no fundamental difference between these isms.³ Their objectives are the same. The man who was six times the Socialist candidate for President of the United States, was recently honored by a testimonial dinner in New York, attended by eminent leaders of both major parties. The Communist party and the Socialist party have had legal recognition in this country and in several campaigns they have nominated candidates for the presidency and these candidates have received many votes.⁴ The platforms of neither of these parties advocate anything unlawful. The Communist party claims that it is the only bona fide Socialist party.⁵

McAndrew was no more libeled by having attributed to him the remark that “we all have to have a little communism today” than he would have been if he had been reported as saying, “we all have to have a little prohibition today.” There are probably some communities where prohibition is even more unpopular than communism. In view of the fact that the alleged defamatory statements were not libelous, the defendant was entitled to binding instructions.

There is another reason why the defendant was entitled to binding instructions. This Court in Montgomery v. Dennison, 363 Pa. 255, 69 A. 2d 520, upheld the view expressed in Volume III of the Restatement of Torts, Section 613 (2) as follows: “(2) In an action for defamation the defendant has the burden of proving, when the issue is properly raised, (a) the truth of the defamatory communication, (b) the privileged character of the occasion on which it was published, (c) the character of the subject matter of defamatory comment as of public concern.” This means that if the defendant relies upon any one of these three defenses he must prove that defense. In the same opinion we quoted Comment f of the Restatement, Section 613, reading as follows: “. . . If he [the defendant] relies upon the defense that the communication was published upon a conditionally privileged occasion, he likewise has the burden of proving it. If he sustains this burden by evidence of the requisite quantity and quality, he will prevail unless the plaintiff takes up and sustains the burden of proving that the occasion was abused. The occasion may be abused because of the publisher’s lack of belief or reasonable grounds for belief in the truth of the defamatory matter; because the defamatory matter was published for some purpose other than that for which the particular privilege is given; because the publication was made to some person not reasonably believed to be necessary for the accomplishment of the purpose of the particular privilege; or because the pub] ¡.cation included defamatory matter not reasonably believed to be necessary to accomplish the purpose for which the privilege is given.”

Prosser on Torts, p. 851, cited many English and American cases in support of the proposition that “The burden is upon the defendant in the first instance to establish the existence of a privileged occasion. . . . Once the existence of the privilege is established, the burden is upon the plaintiff to prove that it has been abused by excessive publication, by use of the occasion for an improper purpose, or by lack of belief or grounds for belief in the truth of what is said.” ⁶

The court below in its opinion filed in this case stated: “. . . the trial judge correctly considered that the occasion for the publication, to wit, the report of a political meeting of interest to the public, was a privileged occasion and that the publication was made from a proper motive and in a proper manner.” Such being the fact, the burden then passed to the plaintiff to prove that the privilege had been abused and since the plaintiff had failed to sustain that burden, the court should have directed a verdict in favor of the defendant.

There was neither pleading nor proof by the plaintiff of any publication which in law amounted to defamation of him.

April 18, 1950:

The judgment of the Superior Court is reversed and is here entered for the defendant n. o. v.

Per, Curiam,

The foregoing opinion was prepared by the late Chief Justiee Maney before his death on March 20, 1950. It is now adopted and filed as the opinion of the Court.

1 “CAPT. DONLAN ROUTS HECKLERS WHO ACCUSE HIM OF TRYING TO GET SYMPATHY VOTES

Three Court House employes threw a political meeting in Polish Hall, Mayfield, into wild confusion yesterday afternoon and were promptly denounced from the floor when their spokesman charged Capt. Fraser P. Donlan, Republican nominee for State Senator, was using his uniform and the flag to get sympathy votes.

Reflecting the panic that Capt. Donlan’s candidacy has created in the Democratic leadership, Matthew MeAndrew, Chief Deputy in the County Treasurer’s Ofliee, and an Archbald politician for many years, took the platform and declared that the wounded Marine officer was trying to get sympathy votes with his uniform and by carrying the flag.

JUST A LITTLE COMMUNISM

MeAndrew, in the course of his blistering attack on the Republican candidates, took occasion to reply to G O P charges that Communism found a home in the Democratic Party. He apologized by saying ‘of course, we all have to have a little Communism today.’ ”

2 Webster’s New International Dictionary defines Communism as: “(1) A system of social organization in which goods are held in common; — the opposite of the system of private property. (2) — Communalism, 1. (3) Any theory or system of social organization involving common ownership of the agents of production, and some approach to equal distribution of the products of industry. The popular use of the word communism conforms to the third of these definitions.”

3 The Encyclopaedia Britannica, Vol. 6 (14th ed.) p. 134 defines communism as: “almost synonymous with Socialism. . . . [The communists] advocate a form of production which is in the hands of the community; . . .” In John T. Elynn’s book, “The Road Ahead,” he states at p. 10: “Most of the countries in Europe have moved into the Socialist camp. The two which concern us most are Russia and Great Britain. Each has moved into socialism by a different route. Each has organized its Socialist society upon a different11 model. But both are Socialist.”

4 In 1932 the Socialist candidate for President received 884,781 votes. In 1936 the Communist candidate for President received 80,160 votes.

5 The Communist Platform of 1948 states: “There is only one Marxist party in America, one party dedeiated to replacing the capitalist system with Socialism — and that is the ■Communist party. . . . We Communists are dedicated to the proposition that the great American dream of life, liberty and the pursuit of happiness will be realized only under socialism, a system of society in which the major means of production will be collectively owned and operated under a government based on the working class. Only such a society can forever banish war, poverty and race hatred. Only in such a society can there be the full realization of the dignity of man and the full development of the individual. Only such a society can permanently protect the integrity of the home and family. Only a Socialist society can realize in life the.vision of the brotherhood of man.”

6 In an article entitled “Privileged Defamation,’’ 22 Virginia Law Review, p. 642, it is stated: “The question whether the occasion is privileged is one for the judge and not for the jury and on this issue the burden of proof is upon the defendant. Once the occasion is ruled by the judge to be privileged, the question whether it was abused by the defendant is one for the jury, subject only to the usual censorial power of the judge and the burden on the issue is upon the plaintiff.” See Wright v. Woodgate (1835) 2 C. M. & R. 573: Clark v. Molyneux (1877) 3 Q. B. 237; Doane v. Grew (1915) 220 Mass. 171, 107 N. E. 620; Hebditch v. MacIlwaine (1894) 2 Q. B. 54, per Lord Esher; Stace v. Griffith (1869) L. R. 2 P. C. 420.