192 Pa. 585 | Pa. | 1899
Opinion by
The announcements contained in the publication complained of, and directly affecting the plaintiff in this case, are that Coroner McDowell had resolved to hold an inquest on the body of Mrs. New who died of malpractice; that district attorney Haymaker had sent county detective Robinson to assist the coroner; that the detective and the deputy coroner had subpoenaed Dr. S. H. Bryant, of 821 Carson street, who is alleged to have performed the operation; that he is a leading homeopathic physician of the South Side, and is under police surveillance at the order of the county detective. The common and natural inference from the publication was that the death of Mrs. New was the result of an abortion, and that the physician then under police surveillance was connected with it.
It may be stated here that the plaintiff appeared at the inquest in obedience to the subpoena, but he was not called to testify, and it was not shown that he had knowledge of Mrs. New’s illness previous to the publication, or that he was at any time her medical adviser, or a participant in the crime which resulted in her death. The only conclusion arrived at by the coroner’s investigation was that Mrs. New’s death was caused by an abortion, but it did not charge any person as having been responsible for or implicated in any manner in the crime.
The plaintiff regarding the publication as libelous and injurious to his reputation and business, instituted this suit. On the trial of it in the court below he testified that he did not know Mrs. New, and that to the best of his knowledge he had never seen her, or prescribed for her, at his office or elsewhere. His testimony in this particular was corroborated by his son and no attempt was made to contradict it. He also introduced
It was not denied by the defendant company on the trial or the appeal that the publication complained of virtually charged an indictable offense. But the defense of probable cause was not clearly established by competent evidence and, therefore, it was error to withdraw the case from the jury and enter a verdict for the defendant. In Conroy v. The Pittsburg Times, 189 Pa. 337, our Brother Mitchell, speaking for this Court, said: “ The general rule is that nothing but proof of the truth is a defense to a libel. That it was privileged because published on a proper occasion from a proper notice, and upon probable cause, is the excepted case, and he who relies upon the exception must prove all the facts to bring himself within it,” and that “ where a publication charges an indictable offense, the presumption of innocence is prima facie evidence of want of probable cause, and sufficient to put the defendant to proof of the facts to support his claim of privilege.” He also said in the same case “ that the presumption of innocence cannot be overcome by mere rumor or idle report, or careless and insufficient examination set up as a probable cause.” Applying these principles to the case at bar it seems clear that it should have been submitted to the jury.
Judgment reversed and venire facias de novo awarded.
