Barr v. Moore , 87 Pa. 385 ( 1878 )

Mr. Justice Mercur

delivered the opinion of the court,

This was an action to recover damages for the publication, by the plaintiffs in error, of an alleged libellous article. It appeared in a daily newspaper, of which they were the editors and proprietors. The plea admits the publication, and without averring any fact therein charged to be true, substantially claims that inasmuch as the defendant in error was chairman of the county committee of the Democratic party, his acts in such capacity were a proper subject for investigation and information, and as their article was in answer to a certain publication made by him, the alleged libellous article was proper for publication, and therefore they had a right to publish it.'

The first assignment of error is to the court having instructed the jury that the publication of the article charged in the declaration was libellous per se. Did the court err in so instructing ?

A.libel may be defined to be any malicious publication, written, printed or painted, which by words or signs tends to expose a person to contempt, ridicule, hatred or degradation of character : Runkle v. Myer et al., 3 Yeates 518 ; McCorkle v. Binns, 5 Binn. 340; Pittock v. O’Niell, 13 P. F. Smith 258. In 1 Am. Lead. Cas., § 116, after citing many English and American cases, the learned authors say, “ upon a consideration of the various cases on the subject, we may conclude that any publication injurious to the social character of another, and not shown to be true, or to have been justifiably made, is actionable as a false and malicious libel.”

Passing then to the publication complained of, rve find it reads: “ An Impostor. — A man who resides in Allegheny City named W. D. Moore, and who subscribes himself as chairman of the Democratic county committee, appeared in yesterday’s Sunday, papers in a card addressed to the Democratic voters of this city of Pittsburgh, for the writing of which he was paid a fee by the ring, and the publication of which was paid for out of the corruption fund of the McCarthy — Magee-Snodgrass ring, m which the impudent impostor attempts to dictate to the Democratic voters of this city. This man Moore is in the pay of the ring, and the fact does not surprise us in the least when we reflect that he has descended from the high calling of a clergyman to the recognised champion and professional defender of prostitutes and the lowest grade of criminals who throng the audience halls of our police and criminal courts; and he seems to follow his profession solely for the purpose of making money, and his opinions are moulded by the extent of his client’s means to pay, The money of the ring ; the money of the prostitute, and the money of the libertine and burglar, is all alike to him if he is duly intent on making money. Does this man Moore fancy that because he has bartered himself away that he has sold and transferred a single Democrat in fee simple to the ring robbers ?”

It needs no labored argument to prove that this language tended to expose the defendant in error to contempt, hatred and degradation of character. He is thereby charged with corrupt and mercenary acts, as chairman of the county committee; with being the recognised champion of prostitutes and the lowest grades of criminals, and substantially that his professional opinions, as an attorney of the courts, are not given with integrity and good faith, but are moulded and prostituted according to the amount of money he receives therefor. It impliedly charges a wicked and corrupt disregard of his official oath to behave “ with all good fidelity as well to the court as to the client.” It also strikes at his integrity as a man and tends to degrade his social standing as a citizen. It would be difficult to charge a more disreputable course of conduct or to present a darker picture of professional character. The learned judge was clearly right in holding the publication of the article charged in the declaration to be libellous per se.

The defendant in error was not a candidate for any office. Conceding his action as chairman of the Democratic county committee to have been a proper subject for an organ of his party to investigate and to criticise with considerable freedom, yet that fact affords no legal justification for the fierce onslaught made upon him. It goes far beyond answering, refuting and denying everything averred or intimated in the publication made by him. His publication proclaimed to the Democrats of the city of Pittsburgh, that their candidate for controller was ineligible to that office under the city ordinance; and that at a late preceding election for the office of state treasurer, he had actively and openly supported the opposition candidate, and opposed the nominee of his own party; and he notified the Democrats of Allegheny city, that they had no'Democratie candidate for mayor, nor was any man running, who was entitled by the usages of the party, to call himself their representative. Although this publication may have been in bad taste or even unjustifiable towards his party, and towards the one candidate nominated, and the other adopted and supported by it, yet it did not necessarily reflect on the moral character or integrity of either of them. If the answer of the plaintiffs in error had kept within the bounds of truth; if, by their plea they had averred the truthfulness of the facts which they alleged, and sustained that plea by evidence, a different case would be presented. They put in no such plea. They gave no evidence to sustain their allegations, nor could they, under the pleadings. Practically they admitted the charges made in their publication to be untrue. Although they were false in fact, yet it was urged that the article was so far a privileged com- ' munication, as to protect the publishers thereof against this action. To support this position, they invoke the aid of that part of art. 1, sect. 7, of the constitution of 1874, which declares “no conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made, shall be established to the satisfaction of the jury.” In answer we say this clause refers only to attempted “conviction” in a “prosecution,” and in no wise applies to a civil action to recover damages. It would be a clear perversion of language to extend it to any case other than a “prosecution” in which a “ conviction” is sought. It manifestly refers to the trial on an indictment for a libel.

The liberty of the press should at all times be justly guarded and protected; but so should the reputation of an individual against calumny. The right of each is too valuable to be encroached on by the other. Hence, another part of the section just cited declares “ the free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.” Thus it appears this right or liberty is not one of unlimited license; but it is restrained by a legal responsibility.

The high esteem in which reputation is held, and the protecting care which the organic law has thrown around it, are clearly expressed in the first section of the Declaration of Rights. It declares “all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.” Thus reputation and property are put on the same high ground. The fundamental law affirms the. same inherent and indefeasible right in all men to protect the one as fully as the other. This language in the Declaration of Rights naturally flows from the doctrine of the common law. The natural right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation. The security of his reputation or good name from the arts of detraction and slander are rights to which every man is entitled by reason and natural justice. The reason given is that without this “it is impossible to have the perfect enjoyment of any other advantage or right:” 1 Blackstone’s Com. 134. The right to protect reputation being inherent in man and being indefeasible, it cannot be annulled by legislative action. A good reputation is too valuable to admit of its being falsely assailed without the law giving some redress to the person injured. The general liberty of the press must be construed in subordination to the right of any person calumniated thereby, to hold it responsible for an abuse of that liberty. It follows that the article published by the plaintiffs in error was not privileged, and having failed to establish its truthfulness, they are liable in damages.

Although malice is a necessary ingredient in slander and libel, yet it must be understood in its legal signification. In its common acceptation malice means ill-will against a person ; but in its legal sense it means a wrongful act done intentionally, without just cause or excuse, and therefore every utterance or publication having the other qualities of slander or libel, if it be wilful and unauthorized, is in law malicious. Legal malice alone is sufficient to support an action. If the words are actionable in themselves, as we have shown them to be in this case, and not being privileged, the publication of them is sufficient evidence of legal malice; 1 Am. Lead. Cas. 192. The falsity of the publication creates an implication of malice: Farley v. Ranck, 3 W. & S. 554.

We see nothing in the several assignments relating to damages, that calls for correction. The fact that an indictment may be sustained, does not preclude the jury from giving vindictive damages. When the act is both a public and private wrong, the public and the person aggrieved, each has a distinct and concurrent remedy: Foster v. Commonwealth, 8 W. & S. 77. If the party aggrieved makes out a case which justly calls for vindictive damages, his right thereto cannot be defeated by the fact that the plaintiffs in error may be punished for an injury to the public.

With one exception we find no error in the record. That error is found in the bill of exceptions, and is covered by the second assignment to the evidence. The learned judge erred in permitting the witness to testify that articles of the same tenor and character, wei-e afterwards published in the paper of the plaintiffs in error, without producing those articles, or giving any valid reason for their non-production. The best evidence of their contents was not given. No ground was laid for the admission of secondary evidence. Nor was the error cured by the fact that one of the plaintiffs in error afterwards testified that no such articles were published. The evi. dence was given for the purpose of swelling the damages. If true, such was its natural effect. How far it influenced the amount of the verdict we have no means of ascertaining. It is sufficient for us to say that it may have increased the amount. For this error and for this alone, evidently made in the hurry of the trial, the judgment must be reversed.

Judgment reversed, and venire facias de novo awarded.