Cosgrove Studio & Camera Shop, Inc. v. Pane

• Decision Date: 28 June 1962
• Citation: 408 Pa. 314,182 A.2d 751
• Parties: COSGROVE STUDIO AND CAMERA SHOP, INC., Appellant, v. Cal R. PANE, Appellee.
• Court: Pennsylvania Supreme Court

182 A.2d 751

408 Pa. 314

COSGROVE STUDIO AND CAMERA SHOP, INC., Appellant, v. Cal R. PANE, Appellee.

Supreme Court of Pennsylvania.

June 28, 1962.

Cletus M. Lyman, Hazleton, for appellant.

Louis G. Feldmann, Richard A. Kane, Hazleton, for appellee.

Before BELL C. J., and MUSMANNO, JONES, COHEN, EAGEN and O'BRIEN, JJ.

EAGEN Justice.

In this action, the plaintiff-corporation seeks damages for an alleged libel caused to be published by the defendant. The court below sustained preliminary objections to the complaint in the nature of a demurrer and entered judgment for the defendant. The plaintiff appeals.

The plaintiff-corporation and the defendant are competitors in the business of commercial photography in the City of Hazleton, Luzerne County, a comparatively small city. The plaintiff-corporation caused an advertisement, addressed to the public to be inserted and published in two of the community newspapers of general circulation, offering a roll of photographic film free for every roll brought into its business establishment by a customer for development and printing. The following day, the defendant caused to be inserted and published in one of the same newspapers an advertisement which said, inter alia.

'USE COMMON SENSE * * * you get NOTHING for NOTHING!

'WE WILL NOT!

'1. Inflate the prices of your developing to give you a new roll free!

'2. Print the blurred negatives to inflate the price of your snapshots!

'3. Hurry up the developing of your valuable snapshots and ruin them!

'4. Use inferior chemicals and paper on your valuable snapshots!'

In its complaint, plaintiff alleged that the advertisement of the defendant was 'by innuendo, imputation and implication,' an answer to plaintiff's advertisements offering to give the public photographic film free, and, by implication, charged the plaintiff with being dishonest in its business practices, of inflating prices, of unnecessary haste and unskilled workmanship in the development of customer's film resulting in its ruin, and by the use of inferior materials mulcting the public.

The court below ruled that, while the meaning ascribed by the plaintiff to the language used in the advertisement involved may well be true and so found by a jury, the words in themselves were not libelous per se, since an innuendo was necessarily pleaded, and further that since no special damages were sufficiently averred ^[1] the plaintiff did not set forth a recoverable cause of action. We disagree.

A libel is a maliciously written or printed publication which tends to blacken a person's reputation or expose him to public hatred, contempt, or ridicule or injure him in his business or profession. It is the function of the court, in the first instance, to determine whether or not the communication complained of, in this case the advertisement is capable of a defamatory meaning, Restatement, Torts § 614(1); Bausewine v. Norristown Herald, 351 Pa. 634, 41 A.2d 736(1945); Bogash v. Elkins, 405 Pa. 437, 176 A.2d 677 (1962). To us, that such is so is abundantly clear.

In Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472 (1960), this Court unanimously cited with approval the appropriate test set forth in Restatement, Torts, § 559, namely, 'A communication is dafamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him'. Therein, a communication issued to others stating that the defendant would have no further dealings with the plaintiff, or allow him to contact or do business in any way with the defendant because he, the plaintiff, had been employed by the defendant and quit without giving notice, was held to have a defamatory meaning because the recipients could reasonably conclude that the plaintiff lacked honor and integrity.

In the instant case, the advertisement clearly imputes, to the person to whom it refers, characteristics and conduct which are incompatible with the proper and lawful exercise of a business. Certainly, to charge one engaged in such a business with ruining snapshots, using inferior materials and printing blurred negatives in order to inflate the cost to the public would 'lower him in the estimation of the community [and] * * * deter third persons from associating or dealing with him.'

But, says the defendant, any defamation exists only by innuendo and the plaintiff admits this by pleading that he was defamed by innuendo and implication. This is not correct. First, the plaintiff mistakenly plead that the innuendo was necessary. However, this is a conclusion and may be disregarded as surplusage, if the words are defamatory in themselves. See, 17 Ruling Case Law, Libel and Slander § 162(2); 53 C.J.S. Libel and Slander § 164 et seq. Secondly, most important and crucial, the words are defamatory on their face. Clearly, the characteristics and dishonest conduct imputed in the advertisement need no extrinsic proof of explanation. In short, the words in themselves are defamatory and import the serious sense attributed to them. In such a case, general damages for loss of personal or business reputation are recoverable and no averments or proof of special damages are necessary. See, McIntyre v. Weinert, 195 Pa. 52, 45 A. 666 (1900); Montgomery v. Dennison, 363 Pa. 255, 69 A.2d 520 (1949). This, of course, presupposes that the defendant is unable to prove affirmatively truth or privilege.

The fact that the plaintiff is not specifically named in the advertisement is not controlling. A party defamed need not be specifically...