36 Pa. Super. 238 | Pa. Super. Ct. | 1908
Opinion by
John Good, the father of the plaintiff, died intestate. John C. Good, another son, took out letters of administration upon his estate. He filed an account to which the exceptions were filed that are referred to in the newspaper articles upon which this action was brought. The particular part of the first article that is alleged to be libelous is as follows:
“O. W. and John C. Good “Charged With Having Stolen Most of > “Their Father’s Estate.
“Extraordinary Accusations Made in Exceptions to “Account Which Finds Practically No Estate.
“Exceptions have been filed to the final account of John C. Good, administrator of the estate of John Good, deceased, in which it is alleged that the administrator, and his brother,
The article then detailed to some extent what the defendant alleged was the substance of the matters alleged in the exceptions, but did not set forth the exceptions verbatim. On the day following the publication of this article, the plaintiff brought an action of libel thereon in Lycoming county, and a week later 'the defendant republished the article together with the exceptions in full, the administrator’s account and extended comments, amongst which were the following: “That statement which is reproduced below was written after careful study of the bill of exceptions filed before the auditor, the Hon. Emerson Collins, in order to verify common report. That the public may see .how carefully it was prepared, the administrator’s account, the bill of exceptions together with other legal matter relating to the estate filed in the orphans’ court are also presented. It will quickly be seen that in the bill of exceptions the very charges can be found, which ‘ Grit ’ said had been brought against the Messrs. Good.” Later the plaintiff brought this action in Northumberland county, and declared upon the publication and republication of the part of the first article quoted at the beginning of this opinion, and the publication of the above quoted part of the comments contained in the second article. The case went to trial upon a plea of not guilty and resulted in a verdict in favor of the plaintiff for $100. From the judgment thereon he took this appeal.
It will be noticed that the defendant did not assert that the matters it alleged were charged in the exceptions were true; it simply published the charges it alleged' others had made. Nevertheless, the words being defamatory, it would not ordinarily be a bar to an action for libel that the report was a truthful recital of what was asserted by others: Oles v. Pittsburg Times, 2 Pa. Superior Ct. 130, and cases there cited. An\ exception to this general rule is made in favor of reports of proceedings in the public courts of law. In general, such reports, if fair, impartial and truthful, and there be no express malice, may be published without incurring liability to action, even though
But the first article was not, and did not purport to be, a copy of the exceptions, but purported'only to be a statement in condensed form of the accusations made in the exceptions. Our attention has not been called to any Pennsylvania case which expressly decides whether or not this fact alone would deprive such an article as this of the privilege that ordinarily attaches to reports of judicial proceedings. But the text-writers generally agree, and in this they are supported by numerous decisions both American and English, that it is not absolutely necessary that the report be verbatim, in order to entitle the
When, however, a publisher of a newspaper undertakes to give an abstract of such exceptions, instead of pursuing the more prudent course of publishing the exceptions themselves and leaving the public to judge of their import, he is bound to publish an accurate, truthful and impartial abstract. As the learned trial judge well said, he is bound to be truthful and fair in his statements as to what is or has been going on in court; he is privileged only to tell the truth; he is not privileged to exaggerate. If he uses words different from those used in the legal document to describe the allegations against the accountant, he must take care that the words he selects, the form in which they are placed and the comments that he makes do not convey to the minds of ordinary readers an impression that the alleged wrongdoings of the accountant are more flagitious than the exceptions themselves show them to be. Failing in this, he forfeits his privilege, and is held liable to action, as he would be if the charges he represents as having been made by the exceptant were made by himself.
Was this an accurate, truthful and impartial abstract of the exceptions? The appellant’s counsel claim that it was not, because it represented that the exceptions charged the plaintiff and his brother with having "stolen most of their father’s estate,” with having 'robbed the estate of many thousands of dollars,” and with having “tried to cover their tracks by forgeries and frauds of various kinds,” which charges or accusations, it is claimed, are not made in the exceptions. In disposing of this question, it is necessary to determine, first, the meaning of the words "robbed” and 'stolen” in' the connection in which they were used. If the meaning that is to be ascribed to them is that the plaintiff had committed the crime of robbery
But although it be conceded that the words considered in connection with the subject matter and the context do not import that the plaintiff was charged in the exceptions with the commission of those specific crimes, yet it must also be conceded that the public might, and probably would, understand the article to mean, that the plaintiff and the administrator, conspiring together, had fraudulently, and by means of forgeries and other dishonest methods, misappropriated the funds of the estate to their own Use. This being so, the question arises whether the article so interpreted was a fair statement of what had been charged in the exceptions.
It will be well to notice briefly the functions of the court and jury in making the comparison between exceptions to an administrator’s account and a publication purporting to give an abstract of them. Exceptions to an administrator’s account
The defense of privilege,' as related to the publication of reports of judicial proceedings, may be defeated by proof of express malice, and it is claimed by plaintiff’s counsel that there was inherent evidence of express malice iii the second article published by the defendant. On the other-hand, it is claimed, and the learned - trial judge took that view, that the circumstances under which the second article was'published rebutted any possible inference of express malice. We think the question was for the jury. In Barrett v. Long, 3 H. of L. Cas. 395, where' there was a plea denying actual malice, and stating the publication of an apology the court said: “We are all of the opinión that under such a plea the publication of previous libels oh the plaintiff by the defendant, is admissible evidence to show that the defendant wrote the libel .in question with actual
■The next question to be considered is as-to the measure of; damages. The learned judge charged generally that -there-could be no recovery by the plaintiff- beyond what “would, compensate him for injury to his cháractér and his feelings^ to his character generally and to his feelings from the time of-
The article in question did not purport to have been published upon information received from others, but was published upon, the defendant’s knowledge of what the record contained. Furthermore, it was reiterated with emphatic assertion that it was truthful in every particular. In such circumstances it was not competent to show in mitigation of damages that another newspaper had previously published a substantially similar report of the same judicial proceeding: Hayes v. Press Co., 127 Pa. 642; Clark v. North American Co., 203 Pa. 346. It was also irrelevant to show that the plaintiff had not published a denial of the article published in the other newspaper. In the last cited case the court said: “All the assignments in reference to the accounts of the same transaction in other newspapers are sustained. Such accounts were not admissible in evidence for any purpose: Pease v. Shippen, 80 Pa. 513.” It is argued that this means simply that they were not admissible for any purpose under the facts of that case. Assume this to be true (although, it should be noticed, some of the authorities state the rule in broader terms), yet even in that view of the decision it is authority for the general proposition that you cannot show, even in mitigation of damages, that the plaintiff’s reputation had been damaged by the previous publication of the libel by another person. In such a case the law will not undertake to apportion the pecuniary injury to the plaintiff’s reputation between the two wrongdoers, and we can see no substantial difference between that and an attempt to apportion the injury to his feelings.
But it was competent fGr the defendant to prove the general reputation of the plaintiff for honesty. The later cases establish the principle, that in an action for slander or libel, where
' There are twenty-three assignments of error in this case. We have not.deemed it necessary to discuss them separately ■or in groups, but have endeavored.to cover the essential points involved in the appeal, and «to show wherein. we agree, and -wherein we are unable to agree, with the learned trial judge.
' The judgment is reversed and a venire facias de novo, .is awarded.