Pittock & Mills v. O'Niell
63 Pa. 253
Pa.
1870
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The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

As the rule is well expressed'by an approved elementary writer, — “ the quality of the alleged libel as it stands on the record, either simply or as explained by averments and innuendoes, is purely a question of law for the consideration of the court:” 2 Starkie on Slander and Libel 281. That this was the law in England, both1 in civil and criminal proceedings, up to 1792, was maintained so rigidly that nothing was submitted to the jury in such cases but the fact of publication and the truth of the innuendos: Rex v. Woodfall, 5 Burr. 2661; The King v. The Dean of St. Asaph, 3 T. R. 428, note; The King v. Withers, 3 *257T. R. 428. In consequence of these decisions the statute of 82 Geo. 3, c. 60, commonly known as Mr. Fox’s Act, was passed. This statute is confined in terms to trials of indictments or informations, when an issue or issues are joined between the king and the defendant or defendants on the plea of not guilty pleaded, in which case it declared and enacted that the jury may give a general verdict of guilty or not guilty upon the whole matter put in issue, and should not be required or directed to find the defendant guilty merely on proof of the publication, and of the sense ascribed to the same in the indictment or information. By the second section it was provided “that on every such trial the court or judge, before whom such indictment or information shall be tried, shall, according to their or his discretion, give their or his opinion and direction to the jury on the matter in issue between the king and the defendant or defendants, in like manner as' in other criminal cases.” It has never been pretended that this statute had any application to civil actions: Levi v. Milne, 4 Bingh. 195; and its obvious intention was merely to restore to juries their common-law right to give a general verdict in cases of libel, just as in other criminal cases, of which they had been unconstitutionally deprived. Hence the law was carefully made declaratory. The seventh section of the ninth article of the Constitution of Pennsylvania has expressed the same constitutional doctrine and incorporated it with the Declaration of Rights. “In all indictments for libels the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.” There can be no doubt that both in criminal and civil cases the court may express to the jury their opinion as to whether the publication is libellous. The difference is, that in criminal cases they are not bound to do so, and if they do, their opinion is not binding on the jury, who may give a general verdict in opposition to it, and if that verdict is for the defendant, a new trial cannot be granted against his consent. As our declaration of rights succinctly expresses it, the jury have the right to determine the law and the facts in indictments for libel as in other cases. But in civil cases the court is bound to instruct the jury as to whether the publication is libellous, supposing the innuendoes to be true, and if that instruction is disregarded, the verdict will be set aside as contrary to law.

In England the courts have recently disregarded, to some extent, this plain distinction between criminal and civil proceedings. It appears to be put upon the ground that Mr. Fox’s Act, though limited in terms to indictments and informations, was declaratory of the law in all cases of libel; upon what principle of construction, however, it is not very easy to understand. It is there the approved practice for the judge in civil actions, after explaining to the jury the legal definition of a libel, to leave to them the *258question whether the publication upon which the action is founded falls within that definition: Folkard’s Starkie 202; Baylis v. Lawrence, 11 Ad. & Ell. 920; Parmiter v. Coupland, 6 M. & W. 105; Campbell v. Spottiswoode, 3 B. & S. 781; Cox v. Lee, 4 Exch. Law Rep. 284. These cases were followed in Shattuck v. Allen, 4 Gray 540.

Yet it is clearly held that a verdict for the defendant upon that issue will be set aside and a new trial granted: Hakewell v. Ingram, 28 Eng. Law & Eq. Rep. 413. “ Though in criminal proceedings for libel,” said Jervis, C. J., “there may be no review, in civil matters there are cases in which verdicts for the defendant are set aside upon the ground that the matter was a libel, though the jury found it was not.” This must be conceded to be an anomaly; and it will be best to avoid a practice which leads to such a result. The law, indeed, may be considered as settled in this state by long practice, never questioned, but incidentally confirmed in McCorkle v. Binns, 5 Binn. 340, and Hays v. Brierly, 4 Watts 392. It was held in the case last cited that where words of a dubious import are used the plaintiff has a right to aver their meaning by innuendo, and the truth of such innuendo is for the jury. In New York, since the recent English cases, the question has been ably discussed and fully considered in Snyder «. Andrews, 6 Barb. 43; Green v. Telfair, 20 Barb. 11; Hunt v. Bennett, 19 N. Y. 173, and the law established on its old foundations.

A libel may be defined to be any malicious publication,’written, printed or painted, which, by word or signs, tends to expose a man to ridicule, contempt, hatred or degradation of character: 1 Am. Lead. Cases 109; McCorkle v. Binns, 5 Binn. 340. The publication set forth in the declaration in this case, and given in evidence, was unquestionably a gross libel. Its language is clear and unambiguous, and it may be doubted whether, taken altogether, it needed any innuendo to point it to the plaintiff. Such innuendoes are given, however, and we must consider their truth to have been found by the jury. Its avowed purpose was to hold up the plaintiff below to public scorn and condemnation, as guilty of a crime carrying in its train household ruin and the wreck of domestic happiness. It denounced the act imputed to him as one characterized by the most shameless treachery and hypocrisy. No words could have been used more directly calculated to excite against him public hatred, or to degrade his character. Had the publication been confined to the petition filed in the Court of Common Pleas for a divorce, it might have been considered as privileged, and the plaintiff held bound to prove express malice: Curry v. Walter, 1 Bos. & Pul. 523; McLaughlin v. McMakin, Bright. Rep. 132; Nuff v. Bennett, 4 Sanf. 120. But the comments which accompanied it deprived it of its privilege. It has *259been held to be libellous to publish a highly colored account of judicial proceedings mixed with the party’s own observations and conclusions : Stiles v. Nokes, 7 East 493; Lewis v. Clement, 3 Barn. & Ald. 702. In such a case the general principle is, that if the publication, considered either by itself or in connection with extrinsic facts, be defamatory, malice is an inference of law, which the jury are bound to find according to the direction of the court: 2 Starkie on Slander and Libel 322. “ I take it to be a general rule,” said Abbott, C. J., in Duncan v. Thwaites, 3 B. & C. 556, “that an act unlawful in itself and injurious to another is considered, both in law and reason, to be done malo animo ; and this is all that is meant by a charge of malice in a declaration of this sort, which is introduced rather to exclude the supposition that the publication may have been on some innocent occasion, than for any other purpose.”

These considerations dispose of the third and fourth assignments of error, and the first and second not being secundum regulam, must be treated as none.

Judgment affirmed.

Bead, J., dissented.