Pittsburgh, Allegheny & Manchester Passenger Railway Co. v. McCurdy , 114 Pa. 554 ( 1887 )

Mr. Justice Clark

delivered the opinion of the court,

The plaintiff in this case, H. B. McCurdy, was in January 1885, employed as a conductor on the cars of the Pittsburgh, Allegheny and Manchester Passenger Railway Company; and, on the 13th May, 1885, was discharged from that employment. Subsequently, complaints were made that he still claimed the right to ride on the company’s cars, on tickets to which employés only were entitled; whereupon, the company posted, in the room temporarily used as a waiting room, a notice containing the alleged libellous matter complained of, in the following form: — “H. B. McCurdy has been discharged for failing to ring up all fares collected. Discharged employés are not allowed to ride on employés’ tickets. C. P. Sorg, Ass’t. Supt.”

The declaration is not printed, but according to the statement in the paper books, it contains two counts; the first set forth that the plaintiff was and is a person of good reputation, and was employed by the defendant company as a conductor; that Charles P. Sorg was the assistant superintendent of said company, having authority to hire and discharge 'employés, and give reason therefor, and was the general agent of the company; that the • defendant company used a certain device to register the fares collected by the conductors, to prevent the conductors from appropriating the same to their own use, etc.; that it was the conductor’s duty “ to ring up ” all fares collected; that the plaintiff had faithfully performed this duty during his employment, etc., and paid over to said company fill fares collected; that he was discharged from the company’s service on 13th March, 1885; and yet the defendants, well knowing the premises, etc., and controversy, etc., published a certain false, scandalous, etc., notice as follows, etc., meaning, etc., that the plaintiff was guilty of the crime of embezzlement. The second count contained a somewhat fuller statement of the alleged libellous matter, but substantially the same averments. The innuendo in both counts is that the plaintiff was guilty' of embezzlement, but the innuendo, it is plain, can neither enlarge nor change the meaning of the words in their ordinary signification, or as it is expressed and applied in the previous averments of the declaration, and in the colloquium.

The expression, “failing to ring up the fares collected,” is, in a manner, technical; it is one peculiar to the business in which the parties were engaged; the words taken together in their ordinary signification convey no distinct meaning, they are indeed, without explanation, nonsensical and absurd; evidence was admissible therefore to explain their meaning; to show that “ to ring up the fares ” was by pulling a rope at the side of the car, upon receipt of each fare, to move the index one point on the circular scale of the register, and as the registry of the fare was announced by the stroke of a bell, the operation was known in the business as “ringing up the fare.” The words having by such proof become intelligible, they are to be taken in the sense in which they are thus generally understood and applied, unless facts be given in evidence to show that they may have been used in some different particular sense, on the occasion referred to. There is, however, no averment in the pleadings, that the words were used in any other sense than that to which in the business they were ordinarily entitled, nor was there any evidence of any fact to sustain such an averment if it had been made.

Now the company had a clear right to insist upon the full performance of this duty; it was for many reasons, perhaps, important that it should be faithfully and promptly performed, and. the company, apart from any anticipated fraud, might well annex the penalty of a' dismissal from service, for neglect of this duty. But a failure to perform the duty required, might result from mere neglect or inefficiency, or from motives of dishonesty; “failing to ring up all the fares collected,” therefore, does not necessarily imply the fraud or dishonesty of the conductor; it does not import the commission of any crime. Embezzlement is the fraudulent appropriation by one of the money intrusted to his care b}' another, and even if McCurdy did fail to ring up all the fares collected, non con-stat that he embezzled the money. “Words which do not necessarily import criminality are in pleading rendered actionable only by reference to extrinsic facts, which show them to have been used in an obnoxious sense; thus the word “forsworn” becomes actionable only when shown to have been applied to one who has given testimony under the sanction of a judicial oath; but when the charge is conveyed by the use of a generic term which unequivocally denotes the presence of every fact necessary to constitute the offence, as where one is charged with “ perjury,” a reference to extrinsic matters in order to fix the meaning is unnecessary: Deford v. Miller, 3 P. & W., 103. So, in Lukehart v. Byerly, 3 P. F. S., 418, the defendant was charged in several of the counts in the declaration with having spoken certain defamatory words of and concerning the plaintiff, to wit, that “Byerly had.taken apples or had stolen apples out of Borland’s orchard,” and this court said that where the words are laid in an equivocal sense, as imputing a trespass or a felony, though proved as laid the verdict can not be considered as determining the sense in which they were understood, and that the words were not helped by the innuendo of larceny.

- Words, it is true, are not to be construed in mitiori sensu; it is sufficient if, in their plain or popular meaning, they are libellous, but when they do not in themselves convey the meaning imputed to them in the innuendo, or where they are ambiguous or equivocal, there must be, not only in the pleadings, but also in the proofs, reference to some extrinsic matter, which will show the sense in which it is claimed they wereunderstood : Stitzell v. Reynolds, 9 P. F. S., 490.

The plaintiff’s default in not ringing up the fares, as we have said, might have resulted from his negligence or inefficiency, or from mere mistake or accident, or from his intentional frauds, and if people will draw from the general statement of his discharge on that ground, a merely possible inference of fraud and embezzlement, which the words themselves in their usual signification did not justify, it is certainly not the defendant’s fault.

It is true, the question, as to the sense in which words are used, is generally for the jury, but that question like all others which fall within the cognizance of a jury, is one of fact and must be determined upon proper proof; if words are reasonably capable of two meanings, one of which is actionable and’ the other innocent, it is for the jury to say in which sense the words were uttered or understood; but the words here employed are not equivocal or ambiguous; apart from the unjustifiable inference which the witnesses have drawn they are not even alleged to be ■ capable of any but one meaning, and there is absolutely no evidence, as against the railwa3r company, that the words were used in any othér sense than that which in the business was ordinarily attached to them; the question was, therefore, for the court to determine whether 'the words in that sense covered the crime of embezzlement, as charged in the indictment. The alleged remark of Sorg that he “ had got rid of one of the damnedest thieves on the road,” especially as the verdict was in favor of Sorg, certainly cannot be imputed to the company.

Several witnesses were called, who stated what impression they took from the language used in the written notice, but this at the best was only the expression of an opinion, not the statement of a fact, and upon examination of the evidence it will be seen there was no ground for the opinion. There was not even the suggestion of any fact, by the witnesses, that the words were susceptible of any other than the single sense of their ordinary use in the business; they testified to a mere inference, which they drew from the paper, and which it is plain the paper did not warrant. Such testimony was wholly irrelevant and incompetent for the purpose intended. It is not competent in an action of libel, to aid the innuendo by the mere opinion of a witness. “If this could be done,” says Mr. Justice Thompson in Rangler v. Hummell, 1 Wright, 130, “there would be no use for an innuendo; its office would be supplied, by the oath of the witness, who would draw the inference from the precedent facts, instead of a jury; this is not permissible.”

Judgment reversed.

Sterrett, J., dissented.