Hayes v. Press Co. , 127 Pa. 642 ( 1889 )

Opinion,

Mr. Justice Sterrett :

The evidence in this case tended to show that after the plaintiff had been engaged for some time in the retail drug business, he purchased the furniture, etc., of the St. George Hotel, Philadelphia, and leased the building itself for a term of five years from September 7, 1885. During the first year the hotel business showed a net profit of about 18,000, with favorable prospects for the next ensuing year. The house was largely patronized by guests who made it their home during the year, except for a few weeks in the summer.

In August, 1886, plaintiff determined to make some needed repairs, such as painting, papering, etc., involving a greater cash outlay than he was then prepared to meet without a temporary loan. For that purpose he had a note for $1,500 at four months, indorsed by his brother, discounted by the Third National Bank, with which he kept an account; and, as collateral security therefor, he gave the joint judgment-note of himself and brother, for same amount, payable on demand, with the understanding that the latter should be used only in case the discounted note was dishonored. By an oversight of the bank, judgment was prematurely entered on the collateral note, but no execution was issued thereon. The Press Company, Limited, defendant, in its issue of August 9, 1886, published the following notice of the judgment:—

“ Hotel Proprietors Hr.ibarrassed.

“ A judgment was entered yesterday by the Third National Bank against J. F. and W. N. Hayes, of the St George Hotel, on a promissory note, dated August 6th and payable on demand, for $1,500.”

This article constitutes the alleged libel, and is declared on with the following innuendo: “thereby then and there meaning that the said J. P. Hayes, the plaintiff, was in bad circumstances, insolvent, and unworthy of credit.” Defendant’s demurrer to the declaration being overruled, the plea of not guilty was entered, and on that issue the case was tried.

In addition to the facts and circumstances above stated, the evidence adduced by plaintiff tended to show that he was not embarrassed, nor in bad circumstances, .insolvent, or unworthy of credit, at the time the judgment was entered, nor before; that in round figures his entire liabilities, including drug and hotel business, aggregated about $16,000, and his assets about thrice that sum; that none of his liabilities were pressing, and a very small proportion of same then due. His object in borrowing the $1,500 was to provide better accommodations for patrons of the hotel. Plaintiff himself was examined and rigidly cross-examined as to his business affairs, financial condition, etc. His testimony tended to show that the publication was prejudicial to liis financial standing, and injurious to his business as proprietor of the hotel. The manner in which it affected both, and the extent of the alleged injury, were stated in detail, and need not be further noticed. The evidence was all for the consideration of the jury in determining questions of fact upon which it was their exclusive province to pass. The hotel books were produced on defendant’s call, but it does .not appear that they were examined or put in evidence, nor was there any rebutting testimony offered by defendant.

If there was no error in the trial, the verdict for defendant should not be disturbed; but it is alleged the court erred iu several particulars, some of which are worthy of notice.

In plaintiff’s first and fourth points for charge, the learned judge was requested to instruct the jury as follows: “ 1. If you believe plaintiff’s innuendo to be true, your verdict should be for plaintiff.” “ 4. This publication was not a privileged communication.” In his answer to the first, the learned judge said: “I have answered that point already in my general charge. That point I cannot unqualifiedly affirm.”

We fail to discover in the general charge any such affirmance of the point, qualified or otherwise, as the publication itself and the undisputed evidence required. It was for the jury to say whether the publication meant what is alleged in the innuendo. If they found it did, the publication was libelous; and, under the uncontradicted evidence, plaintiff was entitled to a verdict. Written or printed words which are injurious to a person in his office, profession, or calling, or which impeach the credit of any merchant or trader, by imputing to Mm insolvency, or even embarrassment, are libelous. The law carefully guards the credit of merchants and traders. Imputations on their solvency, or suggestions that they are in pecuniary difficulties, etc., are, as a general rule, actionable: Odgers on Libel, 19, 29, 80, 81, and authorities there cited.

In its application to a man’s financial condition or standing, the word “ embarrassed,” employed in the head-line of the article complained of, ordinarily means incumbered with debt, beset with urgent claims and demands, unable to meet his pecuniary engagements, etc. — words of substantially the same import as those used in the innuendo. The office of an innuendo is to aver the meaning of the language published, but if the common understanding of mankind takes hold of the published words, and at once, without difficulty or doubt, applies a libelous meaning to them, an innuendo is not needed, and if used may be treated as useless surplusage. Considered in connection with the rest of the article, the word “ embarrassed ” means substantially what is ascribed to it in the innuendo. That, however, was a question for the jury. The point should have been affirmed.

In his answer to the fourth point, above quoted, the learned judge said: “ I have defined in my charge how far it is privileged, by telling’ you that a fair comment was admissible, but that an unfair and reckless comment was not admissible. This would take away the privilege.” This answer, we think, was misleading’, and erroneous. Strictly speaking, the question of privilege was not involved. It was the common right of any one to publish the fact that a judgment for $1,500 had been entered against the defendants, substantially as shown by the record of the court in which it was entered; but it was neither the right nor the privilege of defendant or any one else to publish in connection therewith the declaration, in the form of a head-line, or otherwise, that the defendants in the judgment were embarrassed. That had a direct tendency to impair their credit and injure then’ business; and, if the evidence is believed, it did injure plaintiff’s credit and business as a hotel-keeper. Such a declaration, whether it be regarded as an inference drawn by the writer from the fact that the judgment was entered, or he called a comment on a judicial proceeding, was an unwarranted assertion of fact, which, if untrue, was manifestly calculated to impair plaintiff’s credit and injure his business. It does not follow that one who authorizes a confession of judgment against himself is financially embarrassed. The publication, as a whole, including the head-line, was in no sense privileged. The point should have been affirmed.

For reasons already suggested, those portions of the charge recited in the second, fourth, and fifth specifications were misleading and erroneous.

The testimony, elicited on cross-examination of plaintiff, was irrelevant and improper, and for aught that we know it may have prejudiced plaintiff’s case.

The remaining specifications of error are not sustained; but, for reasons suggested in connection with the first, second, fourth, fifth, seventh, and eleventh specifications, the judgment should be reversed.

Judgment reversed, and a venire facias de novo awarded.