52 Pa. Super. 35 | Pa. Super. Ct. | 1912
Opinion by
It was alleged in the plaintiff’s statement of claim as follows: “In an ‘Extra Edition’ called the 'Afternoon Edition’ of the Pittsburg Leader, .... the defendant published an article on the front page of said paper in
The appellant’s first general proposition is that the statement of claim was fatally defective, and, therefore, though the defendant had not demurred, but had pleaded the general issue, it was not precluded from setting up its defectiveness by objection to the admission of the alleged libelous article in evidence, or by motion for binding direction, or by motion for judgment non obstante veredicto.
The first ground of objection which counsel specify under this general head of their argument, is that the statement did not allege that the publication was of and concerning the plaintiff. True, that precise form of expression was not used, but the article shows on its face that it was of and concerning Jesse McGeary, former coroner, whose portrait, with the plaintiff’s name below it, was printed as part of the article, and it was alleged in the statement that this was the portrait of the plaintiff. Further, the statement alleged that the company and its officers had special and particular malice arising out of special ill-will against the plaintiff, ‘‘and the publication
The second objection urged by counsel under this general head of their argument, is that the statement was defective because it contained no innuendo stating that the meaning of the language was that McGeary was arrested for kicking the woman, or stating that the defendant meant that plaintiff was guilty of kicking the woman, or stating that defendant means that McGeary was guilty of the crime of assault on the woman; in short, that an innuendo was necessary in order to give notice to the defendant of the meaning which the plaintiff assigned to the words used and intended to charge in his statement. Even if it be conceded that there was lack of precision in this particular, and that this would have been a valid objection if raised in limine (a point we need not decide), it does not necessarily follow that it was a valid objection at the time it was first raised: Binder v. Pottstown Daily News Pub. Co., 33 Pa. Superior Ct. 411. It is a familiar and well-settled rule of pleading, that by pleading the general issue and going to trial thereon the defendant waives all defects in the declaration that are not fundamental. Hence, if without an innuendo, the substance of a good cause of action was shown on the record, the objection that it was not stated as specifically and with as much precision as the defendant might have demanded, was waived. The proper application of the general prin
The appellant’s second general proposition is that the publication was privileged, and, under the undisputed testimony in the case, the court should have given binding instructions for the defendant, or should have entered judgment n. o. v. In view of this contention, it will bé well to refer to certain familiar and well-settled principles relating to privileged communications. The privilege
It follows from the foregoing, that the appellant’s first
Under the third head of their argument, counsel for appellant discuss the assignments alleging error in the oourt’s answers to their points. The first two of these assignments have, in effect, been disposed of in our general discussion, and need not be further noticed. The third point (third assignment) was substantially the same as that presented in Ferber v. Gazette & Bulletin Pub. Assn., 212 Pa. 367. But in that case the point was affirmed with the qualification: “if the jury believe the publications were true or that the defendant had probable cause to believe them to be true.” The case is not authority for the proposition that the law was fully stated in the point. The point presented here contained no such qualification. The affirmance of it without such qualification would have been to ignore, as unessential, the element of probable cause, as well as the manner of publication, and make the case depend solely upon the single question whether the occasion was privileged. The point was too broad, and therefore the court committed no error in refusing it as stated. Moreover, the court had instructed the jury correctly upon the subject in its general charge.
If the article complained of had contained no more than a plain statement of the facts set forth in the fourth and fifth points as having been communicated to the defendant by the police officers, and fair comments, though strongly condemnatory of the conduct there described, there would be much force in the contention that these points should have been affirmed. But the publication was not kept within those limits. Other matters were stated, as, for example: “who” (the woman) “lies near to death”—“Babe’s life pays price for mother”—“which” (assault on woman) “may result in death of victim and
In disposing of the sixth assignment of error, it is to be noticed that the information spoken of in the point as having been given to the reporter by the policemen, was not of a fact within the latters’ knowledge, but of a fact which had been communicated to them by Mrs. Huselein. It was hearsay even as it came to the defendant’s reporter. And while this would not be ground for excluding the evidence (Com. v. Storey, 49 Pa. Super. Ct. 282) it was a circumstance to be considered by the jury in determining whether there was negligence in failing to make an inquiry of the plaintiff and others as to the truth of the serious charge. It cannot be declared, as matter of law, either that ithis was or that :it was pot a positive duty. But it is to be [borne in mind that the probable cause for belief, that will ■rebut malice, excludes negligence, and it is an elementary principle of the law of negligence, that where the precise measure of duty is not fixed by any positive rule of law, but shifts with the circumstances, the question whether clue care and diligence were exercised is for the jury. The
In the argument in support of the twelfth assignment it is assumed that the court took upon itself the function of instructing the jury as to the meaning of the headlines. But in other portions of the charge this question had been fully, explicitly and unreservedly submitted to them, and the remark embraced in this assignment could not have been interpreted by them as taking that question from them. If there was any error, it was in not stating the contents of the headlines in their precise words. But in an earlier portion of the charge the headlines of the article
Finally, it is urged that the charge was vague and misleading. We cannot agree with counsel in this contention. On the contrary, we are all of opinion that it was adequate and impartial and was expressed in such terms as to clearly present the questions of fact to be determined by the jury, and the principles of law applicable to the facts as they should be found by them. The case was well tried, and we find no reason for disturbing the judgment.
The judgment is affirmed.