Barr v. Moore

• Decision Date: 18 November 1878
• Parties: Barr <I>et al. versus</I> Moore.
• Court: Pennsylvania Supreme Court

87 Pa. 385

Barr et al. versus Moore.

Supreme Court of Pennsylvania.

October 12 and 14, 1878.

November 18, 1878.

October 12th and 14th 1878.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and TRUNKEY, JJ.

Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 177.

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Hampton & Dalzell, Wier & Gibson, S. Schoyer, Jr., L. C. Schoyer and A. K. McClure, for plaintiffs in error, contended that sect. 7, art. 1, one of the Bill of Rights, brought into the law of libel in this state an entirely new principle, which principle was that when matter complained of as a libel is matter proper for public information, and it is established that it is published without negligence and without malice, that a criminal prosecution cannot be maintained for such publication, and that further, this same clause of the constitution provided, in order to properly carry it into effect, that where a party sought to be charged with damages in an action for libel, can successfully bring himself within the requirements of the section and can prove what would acquit him on an indictment in a criminal suit, he can likewise by availing himself of its provisions entitle himself to a verdict in a civil suit.

Political parties were recognised even by the courts in this state, and therefore, Mr. Moore, the leader of a great political party in the city of Pittsburgh, was acting in a public capacity and as such his acts and declarations were proper subjects of comment and review. All persons, such as public lecturers, preachers, officers of great corporations, lawyers, managers of public places of amusement, who draw public attention to them through their acts and the public duties they discharge, are "men in public capacity," within the meaning of the Bill of Rights. And newspaper comment on them, if not actuated by malice or marked by negligence, even though the article were untrue, can be published without subjecting the publisher to damages in a suit for libel. The 7th section has recently had a judicial construction in the Quarter Sessions of Philadelphia, and interpreted to be an extension of the privileges of the press beyond public offices, properly so called, to all those who assume to act in a public capacity, draw public attention, and put themselves in a relation to the community that a private citizen does not. It was there ruled that those occupying such positions are subject to fair report and criticism, and those who speak of them, are held only to an abuse of the privilege they are entitled to enjoy under the clause of the constitution: Commonwealth v. McClure, 3 W. N. C. 58; Commonwealth v. Taggart, and Commonwealth v. The World, both unreported.

It is further contended, that the communication is a privileged one, and that the court should have charged the jury that where a person in a public capacity, so misbehaves himself as to create in the minds of ordinarily prudent people, a reasonable belief that he is acting contrary to his duty and is guilty of impropriety and dishonesty, he cannot recover damages from those who, without malice and from good motives, published what they have reason to believe of him upon probable cause, even though the charges may not be true: Chapman v. Calder, 2 Harris 365. The court should have charged that if defendants published their reply to Moore's card, not maliciously or negligently, there could be no recovery: Kinyon v. Palmer, 18 Iowa 377; Edwards v. Chandler, 14 Mich. 475; Detroit Daily Post v. McArthur, 16 Id. 47; Kelly v. Sherlock, Law Rep. 1 Q. B. 686; Kelly v. Tinling, Id. 699.

The case was not such an one as would entitle the plaintiff to vindictive damages, and the court should have so instructed the jury: Rose v. Story, 1 Barr 197; Amer v. Longstreth, 10 Id. 148; Forsyth v. Palmer, 2 Harris 96; Seely v. Alden, 11 P. F. Smith 392; Stanfield v. Phillips, 28 Id. 75.

It was error to permit the plaintiff to testify as to the articles in the newspaper. The paper itself was the best evidence and should have been produced.

T. M. Marshall and M. Swartzwelder, for defendant in error, argued that the libel complained of, was of a gross and offensive nature; that under the section of the Bill of Rights relied on by the plaintiffs in error, no new privilege and no new liberty was given to the press, and that under it, that which would acquit in a criminal case, could not be allowed to work a verdict for the defendant in a civil action for damages; but that, even could it do this, and were the leader of a political party, a person that it was the privilege of a newspaper to attack, the attack could only be upon the individual in his public capacity, and a bitter personal libel, like the one complained of, would none the less subject the publisher to a suit for damages, and the court was therefore right in ruling that this publication was a libel per se.

Mr. Justice MERCUR delivered the opinion of the court, November 18th 1878.

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, we 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, in 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...