Conroy v. Pittsburgh Times
21 A. 154
Pa.
1891
Check Treatment

OPINION,

Me. Justice Mitchell :

A рrivileged communication is defined as one made upon a proper occasion, from a proper motive, and based upon reasonable or probable cause: Briggs v. Garrett, 111 Pa. 404, 414. Perhaps there ought also to bе added, that it should be made in a proper manner, for if the manner be improper the privilege is lost. The publicаtion complained of by appellant charges an indictable offence, and is libelous per se. It may be conceded that it belongs to the class of qualified privilege. In such cases it is common to say that the plaintiff must prove express malice. I apprehend, however, that the more accurate statement of the law is that in suсh cases there is no prima facie presumption of malice from publication. There must be some evidenсe beyond the mere fact of publication, but there is no requirement as to what the form of the evidence shall be. It may be intrinsic, from the style and tone of the article. “ If the communication contains expressions which exceеd the limits of privilege, such expressions are evidence of malice, and *339the case shall be given to the jury: ‍‌​‌‌​​‌‌​‌​‌​​​​​​‌​‌​​‌​​‌‌​​​‌​​‌​​​‌​‌​​‌‌​​​‍” TruNkey, J., in Neeb v. Hope, 111 Pa. 145, 154. Or it may be extrinsic, as by proof of actual malice, or that the statement was knowingly false, or that it wаs made without probable cause, or in any way that fairly and reasonably tends to overcome the prima facie presumption of protection under the privilege. One of such ways is by the counter-presumption of innocence. “ Probable cause that would justify such publication ” (charging- larceny) “ would justify a prosecution for the alleged crime: ” Neeb v. Hope, 111 Pa. 158. And the reason for it is that the presumption of innocence cannot be overcome by mere rumor, or idle report, or careless and insufficient examination set up as probable cause. So, where the alleged libel charges ‍‌​‌‌​​‌‌​‌​‌​​​​​​‌​‌​​‌​​‌‌​​​‌​​‌​​​‌​‌​​‌‌​​​‍an indictable of-fence, the presumption of innocence ought and must stand as prima facie evidence of falsity and want of probable cause, and therefore of malice, еven in cases of a claim of privilege.

A brief consideration of two fundamental principles will be sufficient to sustain this result. First, the immunity of a privileged communication is an exception. The general rule is that nothing but proof of its truth is a defеnce of a libel. That it was privileged, because published on a proper occasion, from a proper motive, and upon probable cause, is the excepted case, and he who relies on an exception must prove all the facts necessary to bring himself within it. Secondly, unless his action is founded on a negative avermеnt, a plaintiff is not in general obliged to prove a negative, and the inconveniences of a departure from this rule are many. For example, in cases like the present, how is a plaintiff to proceed? Actual or special malice can rarely be proved; in fact, it rarely exists. Libelous articles in newspapers seldom spring frоm any hostility to the individual, but usually from a ruthless disregard of personal feelings and private rights, in the mad hunt for n,ews and sensations. The оnly chance of redress for the plaintiff, therefore, is, ordinarily, the want of probable cause; and how is he to prove this ? It was held in Flitcraft v. Jenks, 3 Wh. 158, that he could not do it by evidence of good character and the consequent improbability of his doing the act charged; and how is he to prove specific facts in the dark, before the facts relied on as probable cause are shown by defendant ? The natural and logical order of proof is for defеndant *340to show the information on which he relied for probable cause, and for the plaintiff then to meet it in rebuttal. ‍‌​‌‌​​‌‌​‌​‌​​​​​​‌​‌​​‌​​‌‌​​​‌​​‌​​​‌​‌​​‌‌​​​‍And this is the order that seems to be indicated by BrackeNeedge, J., in Gray v. Pentland, 2 S. & R. 23: “ The plaintiff may, if he chooses, either in the first instance, with a view to aggravate damages, go on to show express malice; or, after an attempt by the defеndant to show probable cause, he may rebut this by proof of express malice.” It is true that actions like the present are closely assimilated to actions for malicious prosecution, in which the plaintiff must give evidence of want of probable cause. But, the latter actions are founded on the want of probable cause; it is an essential element of plaintiff’s case; while, in actions of libel, it is an element not of plaintiff’s case, but of defendаnt’s claim of privilege.

The law, in cases of privilege, has been lenient to the claim, but it must not be allowed to become lax. Our own decisions have followed the general trend, in enlarging the class of qualified privilege, and giving a wide rеach to its protecting mantle ; but we do not regard any of them as in conflict with the reasoning herein followed. A brief reference to the most important of them wall indicate our views in this respect. In Gray v. Pentland, 4 S. & R. 422, and Flitcraft v. Jenks, 8 Wh. 158, the publications were not libelous ‍‌​‌‌​​‌‌​‌​‌​​​​​​‌​‌​​‌​​‌‌​​​‌​​‌​​​‌​‌​​‌‌​​​‍per se; in Chapman v. Calder, 14 Pa. 365, the evidence of probable cause was offered by defendant; in Pittоck v. O’Niell, 63 Pa. 253, if there was any privilege in the publication at all, (and, speaking for n^self only, I do not think there was,) it was lost by the nаture of the comment, and the same is to be said of Barr v. Moore, 87 Pa. 385, and Neeb v. Hope, 111 Pa. 145; in Briggs v. Garrett, 111 Pa. 404, it was held that the letter of Lovegrove, given in evidence by plaintiff, sufficiently ‍‌​‌‌​​‌‌​‌​‌​​​​​​‌​‌​​‌​​‌‌​​​‌​​‌​​​‌​‌​​‌‌​​​‍showed probable cause for defendant’s action; and in Press Co. v. Stewart, 119 Pa. 584, the publication was held not to be libelous at all.

As a result, we are of opinion that where the publication charges an indictable offence, the presumption of innocence is prima facie evidence of falsity and want of probable cause, and sufficient to put defendant to proof of the facts to support his claim of privilege. It follows that this case should have been allowed to go to the jury.

Judgment reversed, and venire de novo awarded.