188 A. 203 | Pa. | 1936
Argued October 9, 1936. This libel action arises from the publication by defendant, in the night edition of its newspaper in Pittsburgh on November 14, 1934, of the following article:
"Today he testified Senator Coyne, on election night of 1932, had told him to look after his own interests. At *156 the first trial, he admitted today, he had testified the Senator assured him 'everything will be all right.' "
In the 7-star final edition on the same evening the article appeared in the following form:
"Graham contended that Robert K. Boyer, Mt. Lebanon Township commissioner, had changed his testimony from that given at the first trial.
"Today, Boyer testified he had seen Coyne at the William Penn Hotel and that Coyne, acknowledging the Democratic landslide, had told him:
" 'Don't worry about the head of the ticket. It's gone. Go out and look after your own interests.'
" 'Everything will be all right.' "
The fact was that at the first trial of Senator Coyne and his co-defendants for alleged vote frauds plaintiff testified on behalf of the government that on election night, 1932, in response to a question by him as to "How is things coming?" Senator Coyne had answered: "Oh, everything is all right, everything will be all right," whereas at the second trial he testified that Senator Coyne had merely said: "All right." Thereupon counsel for the government pleaded surprise and asked the right to cross-examine; in support of his request, however, he did not charge any improper motive on the part of plaintiff but only "the element of faulty memory, failing *157 to remember what was said." Receiving the necessary permission, counsel then read to plaintiff his testimony at the first trial, whereupon plaintiff at once admitted that he had so testified, that "It is possible I forgot a word or two," and that it was true the remark of Senator Coyne had included the additional statement.
Plaintiff's suit is based upon the ground that the articles as published in effect imputed perjury. The jury rendered a verdict of $6,000. Defendant's motions for judgment n. o. v. and for a new trial were overruled.
It is defendant's contention that the publication did not support the innuendo ascribed to it by plaintiff, the statement that plaintiff had "changed" his testimony not being incompatible with an honest as distinguished from a wilful and corrupt variation in the two versions of the alleged conversation with Senator Coyne.
That a publication is susceptible of an interpretation which would render it innocuous does not conclusively defeat a right of action for libel. The test is the effect the article is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate. The words must be given by judges and juries the same signification that other people are likely to attribute to them. It is for the court to determine whether a publication is fairly and reasonably capable of the meaning imputed to it by the innuendo, leaving it to the jury to say whether it actually conveys the meaning so ascribed to it. In the present case it cannot be declared as a matter of law that a prominent headline on the front page of a newspaper, captioning an article dealing with a sensational trial of public interest and alleging that the "star witness" changed his testimony, was reasonably incapable of being construed by the general reader — considering the cynicism of human nature — as implying perjury rather than merely a lapse of memory. Saying that a witness "changed" his testimony is not wholly different from the more vernacular statement that he *158 "switched" his testimony; the word "changed" implies active design, deliberate action, rather than unconscious alteration due to forgetfulness. As already stated, the ultimate responsibility of determining whether the publication was in fact defamatory lay with the jury.
Defendant relies upon the case of Pittsburgh, Allegheny Manchester Pass. Ry. Co. v. McCurdy,
In the assignments of error relating to the refusal to grant a new trial defendant complains that the learned trial judge erred in his instructions to the jury in regard *159
to the subject of qualified privilege. The court charged that the publication enjoyed such a privilege, but later, in its opinion overruling defendant's motion for a new trial, held that the element of privilege was not in the case. This conclusion was correct, because, while ordinarily the report of judicial proceedings is privileged, such immunity is lost when the publication is accompanied by unfair and unwarranted comment: Pittock v. O'Niell,
The only assignment of error which has merit is that complaining of the award of punitive damages. Plaintiff proved no special damages; there was no evidence of actual malice; whatever implication of perjury was contained in the publication was neither luridly sensational nor designedly vicious. Furthermore, plaintiff's counsel having protested to defendant, the latter, two days after the appearance of the original article, published a conspicuously headlined account of the progress of the Coyne trial in which it said that "Federal attorneys have twice pleaded surprise against witnesses, although testimony has varied but little from that of the previous trial. Once was when Robert K. Boyer, of Mt. Lebanon, a star witness for the government in both trials,inadvertently omitted in his latter testimony that Senator Coyne on the night of the election said to him 'everything will be all right.' Boyer when re-examined by Special Prosecutor Louis E. Graham recalled that part of his previous testimony." (Italics supplied.) This was to all intents and purposes a retraction of any previous imputation of deliberate falsehood. While the court has in mind the principle laid down in Wegleinv. Golder,