Mulderig v. Wilkes-Barre Times

215 Pa. 470 | Pa. | 1906

Opinion by

Mr. Justice Stewart,

That the publication complained of by the appellant tended to expose him to contempt, ridicule, hatred and derogation of character, must be admitted. If it was malicious, it was libelous. It must be adjudged malicious, except it be s'hown to be true or justifiably made. Its truth was not asserted, and dare not be assumed. Though untrue, it might yet have been justifiably made. -If a privileged communication, it was justifiable, and the publisher of it may not be held legally answerable. It was a privileged communication if made upon proper occasion, through proper motives, upon reasonable cause, and made in the proper manner. Since the immunity of a privileged communication is an exception to the general rule that nothing short of proof of the truth is a defense to a libel, he who relies on the exception must prove all the faets necessary and bring himself within it: Conroy v. Pittsburg Times, 139 Pa. 334. A party defendant is relieved of this burden when the publication intrinsically supplies the required facts. But such is not the case here. Admittedly this was a privileged communication so far as regards the occasion of its publication. It was a criticism of the official conduct of a public officer, always a proper subject for public discussion and information. As was said in Neeb v. Hope, 111 Pa. 145, and repeated in many other cases, the conduct of public officers is open to public criticism, and it is for the interest of society that their acts be freely published with fitting comments or strictures. But privileged occasion, without more, can justify only in exceptional cases, as where the publication itself or the circumstances connected therewith, negative the presumption of malice. If there is that in the publication which furnishes a basis for reasonable inference that malice was back of it, the burden remains with the party charged to establish either its truth or the probable ground for believing it true. When such is not the case there must be some evidence beyond the mere fact of publication; but there is no requirement as to what the form of evidence shall be. It may be intrinsic, from the style and tone of the article: Conroy v. Pittsburg Times, supra. “ If the communication contains expressions which exceed the limits of privilege, such expressions are evidence of malice and the case shall be given to the jury.” Neeb v. Hope, supra.

The publication here complained of charged the appellant with misconduct in his office as a civil magistrate, so gross and flagrant as to demand, in the opinion expressed editorially, his impeachment, and a full investigation into his past record, which it was declared might possibly develop other charges for securing his ignominious discharge. It characterized him as a “sycophantic Justice,” and in unmistakable language accused him of being party to a conspiracy to humiliate, by sending to jail overnight, a person charged before him with misdemeanor. “ Never in coercion days in Ireland,” the publication proceeds, “ was there a more wicked conspiracy to deprive men of their right to their spoken opinions, and to railroad them to prison for daring to stand up in defence of those rights. This man Mulderig has certainly mistaken his vocation, and has not yet realized-that he is living in the land of the free.” We are of one mind that the extreme severity of the criticism indulged in here, the epithets and language employed in connection with the charge preferred, the reference to appellant’s past record, all tend to overcome the prima facie presumption of protection under the privilege, and were sufficient in themselves to put upon the defendant the burden of justifying. The case was" for the jury, and it was error to direct a nonsuit.

Judgment reversed and a procedendo awarded.