Lead Opinion
Opinion by
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,
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 privi
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
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
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.
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
In Sarkees v. Warner-West Corporation,
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
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.
There is another reason why the defendant was entitled to binding instructions. This Court in Montgomery v. Dennison,
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.”
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.
The judgment of the Superior Court is reversed and is here entered for the defendant n. o. v.
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.
Notes
“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.’ ”
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.”
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.”
In 1932 the Socialist candidate for President received 884,781 votes. In 1936 the Communist candidate for President received 80,160 votes.
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.”
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)
Dissenting Opinion
Dissenting Opinion by
I would affirm on the unanimous opinion of the Superior Court (six members sitting) affirming the judgment of the court below. The record leaves no doubt that the case ivas fairly tried and submitted to the jury in a clear, impartial and thorough charge on both the facts and the law.
That the publication was legally capable of defaming McAndrew, the alleged utterer, seems to me to be patent. The learned trial judge justifiably found its “factual meaning” to be “quite clear”. As aptly stated in the opinion for the court en banc, — “No one can take any other meaning than the story intends to convey: the information that Mr. McAndrew, this plaintiff here, said in effect that Captain Donlan, then a recently returned [wounded] officer of the United States Marine Corps [of which service he was still a member], and in this county a candidate for state senator was trying to get sympathy votes with his uniform and by carrying the flag” (Emphasis supplied). If McAndrew had actually so spoken of Captain Donlan, who had lost a leg due to wounds received in combat, he (McAndrew) would have merited, and have rightly received, the contempt and scorn of his community. Yet, he was unjustly made to suffer no less by the defendant’s false ascription of the communication to him. The argument that the publication did not defame Captain Donlan is nothing more than a diverting irrelevancy; and treatment with it on that basis, so far as its possible efficacy as defamation
In Switzer v. Anthony,
It is, of- course, true that the capacity of the communication to defame presented, in the first instance, a question of law for the court. But, the solution of that
The further statement attributed to McAndrew that “Of course, we all have to have a little Communism today” was unquestionably defamatory. As has been widely held, the meaning of such .a remark is that the orator is a Communist or a Communist sympathizer. And, for the past twenty-five years in this country such a charge has generally been held to be defamatory. Of the more recent cases, see Mencher v. Chesley,
The majority opinion seeks narrowly to dissipate the defamatory character of the Communist imputation by limiting the meaning of that term to people supporting the Russian government with which country this Nation had lately been an ally wherefore the term, carried no publicly stigmatizing connotation. No such restricted sense of the term “Communist” has come to my attention from any other jurisdiction in this country. On the contrary, in Mencher v. Chesley, supra, the Court of Appeals of New York, in treating in 1947 with a 1944
The so-called Sweeney cases which the majority opinion cites are not authority here, or elsewhere for that matter. The same published communication in issue in those cases was held by the Circuit Court of Appeals for the Second Circuit in another case, Sweeney v. Schenectady Union Pub. Co.,
In an unbroken line of cases in this State over many years, it has been held with respect to a defense of privilege in an action for defamation that the defendant must prove that the publication was “made upon a proper occasion, from a proper motive, in a proper manner and based upon reasonable or probable causes” (Emphasis supplied) : Hartman v. Hyman & Lieberman,
The proofs concerning the steps taken to verify the story about Me Andrew did no more than raise a question of fact as to whether the defendant had reasonable and probable cause for its professed belief in the truth of the communication. According to the evidence adduced by the defendant, its first knowledge of the meeting at May-field, referred to in the communication, came to its city editor, Phillips, in a telephone conversation from a
The case of Montgomery v. Dennison,
In an action for defamation where privileged communication is a defense, the plaintiff is not required to negative reasonable and probable cause for belief on the part of the defendant until the latter has offered proof of the sources of information upon which he relies for cause. As Mr. Justice Mitchell further said in Conroy v. Pittsburgh Times, supra, “Actual or special malice can rarely be proved; in fact, it rarely exists. Libelous articles in newspapers seldom spring from any hostility to the individual, but usually from a ruthless disregard of personal feelings and private rights, in the mad hunt for news and sensations. The only chance of redress for
Finally, this seems to me to be an appropriate occasion to register a protest against the alloAvance of allocaturs in cases such as the present. The appeal from the judgment of the court beloAV Avas properly to the Superior Court. In the very first year of that court’s existence, Mr. Justice Mitchell, speaking for this court in Kraemer v. Guarantee Trust & Safe Deposit Co.,