Egan v. Dubois Printing & Publishing Co. , 64 Pa. Super. 115 ( 1916 )

Opinion by

Hendeeson, J.,

The plaintiff’s action is based on two articles published by the defendants in a newspaper conducted by them which are alleged to be libelous. The plaintiff is not named in either of the articles but it is asserted in the declaration that the statement that certain unnamed persons had been employed by operators of coal mines for the purpose of endeavoring to disrupt the organization of miners known as the “United Mine Workers of America” contrary to their obligations and vows as members of that organization referred to him and wa,s maliciously defamatory. The defendants while admitting the publishing contended that the articles were not libelous and asked the court to charge the jury to that effect. The learned trial judge refused this request and submitted the case to the jury to find whether the statements contained in the publications were defamatory and libelous and whether they referred to the plaintiff. The instructions quoted in the third, fourth and fifth assignments in different terms direct the jury to pass on these two questions. It is charged by averments ánd innuendoes that the plaintiff is one of the individuals to whom the article applies and that the statements are libelous in view of the plaintiff’s former and present relation to the “United Mine Workers of America.” Whether the descriptions of the persons referred to in the articles applied to the plaintiff was a question of fact properly submitted to the jury. If words are reasonably susceptible of a defamatory meaning as well as an innocent one the former meaning may be ascribed to them by an innuendo and the jury is then to decide whether such meaning is properly ascribed to them. The quality of an alleged libel, however, either as it is published or as explained by averments and innuendoes is purely a question of law for the court and in civil cases the court is bound to instruct the jury whether the publication is libelous or not supposing the innuendoes to be true. The distinction between civil and criminal cases is discussed in Pittock v. O’Neill, 68 Pa. 253, and it was there held that “in civil cases the court is bound to instruct the jury as to whether the publication is libelous, supposing the innuendoes to be true.” The same view is expressed in Collins v. Despatch Publishing Company, 152 Pa. 187, in the following form: “Where words are of dubious import the plaintiff may aver their meaning by innuendoes and the truth of the innuendoes is for the jury, but the quality of an alleged libel as it stands on the record either simply or explained by averments and innuendoes is purely a question of law for the court; and in civil cases the court is bound to instruct the jury as to whether the publication is libelous supposing the innuendoes to be true.” The same principle is reaffirmed in Meas v. Johnson, 185 Pa. 12, and is repeated in Goebeler v. Wilhelm, 17 Pa. Superior Ct. 432. The learned trial judge omitted to give instruction on this subject but directed the jury to determine whether the publications were libelous or not. The defendants were entitled to the judgment'of the court on the inquiry whether the articles were actionable assuming the innuendoes to be true. The fourth and fifth assignments are, therefore, sustained.

An attempt was made by the defendants to introduce evidence showing the circumstances which induced them to publish the articles complained of in mitigation of damages as set forth in the 9th, 10th, 11th and 13th assignments of error. It is unnecessary to discuss each of these as the case goes back for another trial. The offers were somewhat vague and indefinite in form and for that reason the court should not be criticised for overruling the offers. It is proper to say, however, that under the plea of not guilty the defendants may prove in mitigation of damages the facts and circumstances which induced the writer to erroneously make the charge provided such, facts and circumstances do not tend to prove the truth of the charge made. The motives of the accuser and the presence or absence of causeless malice may fairly be considered by the jury. It was said in Minesinger y. Kerr, 9 Pa. 312, that it may be safely asserted that facts which contribute even in a slight degree to show an innocent reason for the defendant’s act and which do not at the same time tend to support a plea of justification, are receivable in mitigation of damages. And in Bruce v. Reed, 104 Pa. 408, the. court said: “Under their plea of not guilty the defendant may prove in mitigation of damages the facts and circumstances which induced the writer to erroneously make the charge, provided such facts and circumstances do not tend to prove the truth of the charge made.” The reason for the application of this rule is obvious. The imputation of recklessness or wantonness may thereby be repelled. This would not excuse the publication but it might, throw light on the degree to which the defendants’ acts would be held to be reprehensible.

The judgment is reversed with a venire facias de novo.