Clark v. North American Co. , 203 Pa. 346 ( 1902 )

Opinion by

Mr. Justice Mitchell,

This case was unfortunately tried upon a very imperfect view of the issue involved, and consequently an erroneous application of the law. The facts were not really in dispute. The defendant newspaper published an article headed “ Watchman charged with burglary ” etc., and proceeding, “ Closely following the story of the watchman who turned a robber loose in the streets to satisfy a man with a political ‘ pull ’ conies the arrest of another watchman, a city employee, for implication in a burglary. This special officer, who is believed to have had some hand in the theft of goods from a junk shop, is John Clark, Watchman in Starr Garden Park, Seventh and Lombard Streets.” This was followed by an account of the arrest of Clark and some others and holding to bail. Plaintiff was the watchman (officially known as superintendent) of the Starr Garden Park at Seventh' and Lombard streets, but his name is J ames Clark, not J ohn. So far as plaintiff was concerned the article was admittedly false and libelous per se. The only suggestion of defense was that the article did not refer to plaintiff but to one J ohn Clark. This, therefore, was the real point of contention.

The learned judge submitted the case to the jury as if it was a question of intention in the writer of the article, and as if the difference in the names was the deciding factor in that question. Thus in the charge, he said: u Now did that article mean to assert that this plaintiff here was arrested by Special Officer Butler, taken before Magistrate South and bound over, or did it mean what it says, that John Clark was arrested, taken before Magistrate South and bound over? You have nothing at all to do with the question whether the article was true or not as to John. John is making no' complaint about that article, and the only question for you to consider is whether The North American article meant this plaintiff.” And again, “ If that article did not mean this plaintiff, that is the end of the plaintiff’s case, and your verdict should be for the defendant. And involved in that question is the other, — the main question in this case, and that is, what was meant. Of course if he was not meant that is the end of the case.”

This view similarly expressed runs through the whole charge and the answers to the points. It was not only an inadequate but an erroneous presentation of the case to the jury, on a part and the least important part of the real controversy. Plaintiff admitted that he was not named but his contention was that the person intended to be referred to was so described by occupation, official position, locality, etc., that persons acquainted with the plaintiff and with the Starr Garden Park would naturally and reasonably suppose that the plaintiff was meant, notwithstanding the variation in the first name. What the article meant or intended was only one of the grounds on which defendant’s liability might rest. The manner in which it was expressed might so point to plaintiff as equally well to constitute a libel upon him without any actual intention to refer to him at all. Even in reporting an occurrence proper for publication there may be such an absehce of the required diligence and care to ascertain the truth as to make the report libelous. See Shelly v. Dampman, 1 Pa. Superior Ct. 115. The mode of presenting the case to the jury made it turn on the intent, and ignored entirely the liability ai’ising from negligent disregard of the injury that might be inflicted upon the plaintiff. If this were the law few persons could ever have legal redress for libels in newspapers, for it is very seldom that any personal malice or intent to injure is the purpose of the publication. The damage that newspapers do, and the outrages they commit, arise from their reckless disregard of private rights in their eagerness for sensation, which amply fills the definition of legal malice.

The passage from the charge first quoted above was also erroneous in the form of the question put to the jury, “Now did that article mean to assert that this plaintiff here was arrested . ... or did it mean what it says, that John Clark was arrested, ” etc. This was unfair to the plaintiff, for while the article does say that John Clark was arrested, it also says that he was the watchman in Starr Garden Park, a description that pointed directly to the plaintiff. Test it by taking the latter clause and supposing the question had been put to the jury, “Did the article mean that one John Clark was arrested, or did it mean what it says, that the watchman at Starr Garden Park was arrested,” and the defendant clearly would have had reason to complain that the charge laid the weight of emphasis on the part of the article unfavorable to it. In Hays v. Brierly, 4 Watts, 392, Chief Justice Gibson said, “If a slight change in the name were to shield a slanderer from legal animadversion, every man, however clumsy his invention, might securely libel his neighbor at pleasure.” The variation in the names was not the controlling feature in the present case, and should not have had undue prominence. The proper way to submit it to the jury was to call their attention to the fact that the name used in the article did not refer to the plaintiff, but to one John Clark, a different person, but on the other hand, the description pointed directly to the plaintiff and the jury should consider the whole article and determine from all the evidence, whether, notwithstanding the difference of name, the description was such either intentionally or by want of due care and diligence in ascertaining the true facts, that there would be a natural and reasonable inference that the plaintiff was the person referred to. If there would, the defendant was liable.

It is not necessary to discuss the very numerous assignments of error in detail, but a few may be noticed to ayoid recurrence on another trial.

The first and second assignments must be sustained. The questions about plaintiff’s brother, for whom it was said the police were looking, had nothing to do with the case and should not have been permitted. They were not relevant to the issue and had no bearing on it except to prejudice the jury against the plaintiff.

All the assignments in reference to 'the accounts of the same transaction in other newspapers are sustained. Such accounts were not admissible in evidence for any purpose: Pease v. Shippen, 80 Pa. 513.

The general rule is that the plaintiff is not entitled to give evidence of his good character or reputation until the defendant has attacked it. The reason is that character and reputation are presumed to be good, and that such presumption prevails until attacked. In Petrie v. Rose, 5 W. & S. 364, it is said the defendant gave evidence “ tending to cast an imputation upon plaintiff’s character,” though the report does not show just what the nature of the evidence was.' The trial judge permitted plaintiff in rebuttal to show good character, and this was affirmed. In Chubb v. Gsell, 34 Pa. 114, this ruling was disapproved rather hastily as having been “ a minor question in the case and ruled without much consideration.” But the criticism does not seem to be well founded. The point in Chubb v. Gsell was that when defendant in mitigation of damages and to disprove malice had given evidence of circumstances that awakened suspicion, he had not thereby made such direct attack as opened the door to evidence in support of plaintiff’s good character. There is no real conflict in the two cases. The rule, as already said, is that there must first be an attack on the reputation, and until then, the presumption is sufficient. But the attack may be just as direct and just as damaging by slurs and insinuations thrown into the jury box by abuse of cross-examination, as by calling witnesses under a' definite offer. In such cases the result is the same, and the plaintiff should have the same opportunity to'protect himself. How far there has been a direct attack may depend on manner and emphasis as well as on the words used, and therefore, it is a matter to be left largely in the discretion of the trial judge. But he should bear in mind that it is the fact of the attack, rather than the manner of it, that entitles plaintiff to protect himself. Defendant in mitigation of damages may show that plaintiff’s reputation is bad, but he should accept the responsibility with the privilege and should not be permitted under guise of cross-examination to make what is in effect a direct attack, without affording plaintiff the opportunity of reply. In the present case the appellant, after the cross-examination, should have been allowed to show that he had a trade and had worked at it honestly, and that his reputation was good.

There was evidence in the case on which the jury might have found punitive damages, and it was error to take that matter away from them. The refusal or neglect to publish a retraction as to plaintiff after he had called defendant’s attention to the injustice done him was in itself sufficient, and in this connection the tone and wording of the article itself as indicative of a desire to make a sensation, or to hit at parties higher in station over plaintiff’s head regardless of the effect on him, were open for the consideration of the jury.

The Act of April 11,1901, P. L. 74, has no material bearing on this case. The learned judge was correct in instructing the jury that the malice required to be shown under section 3 was legal malice, but it would have been fairer to plaintiff if he had also told the jury in plain terms, as the evidence called for, that if the libelous article referred to plaintiff, or was so written that it would reasonably be taken to refer to him, it established legal malice. The act has not made any change in the law in this respect. The article being libelous per se and being false as to plaintiff, malice was shown and the burden of defense was upon the defendant. If the jury found for-plaintiff, the statute says, “ Such damages may be awarded as the jury shall deem proper.” If this is anything more than declaratory of the previous law, it increases rather than diminishes the control of the jury over the whole subject of damages, punitive as well as compensatory.

Judgment reversed and venire de novo awarded.