Bausewine v. Norristown Herald, Inc.

• Citation: 41 A.2d 736,351 Pa. 634
• Parties: Bausewine v. Norristown Herald, Inc., Appellant
• Decision Date: 19 March 1945
• Court: United States State Supreme Court of Pennsylvania

41 A.2d 736

351 Pa. 634

Bausewine v. Norristown Herald, Inc., Appellant

Supreme Court of Pennsylvania

March 19, 1945

Argued January 9, 1945

Appeals, Nos. 40 and 41, Jan. T., 1945, from judgments of C.P., Montgomery Co., Sept. T., 1942, Nos. 36 and 83, in case of George Bausewine v. Norristown Herald, Inc. Judgments affirmed; reargument refused April 12, 1945.

Actions in trespass for libel. Before KNIGHT, P.J.

Verdicts for plaintiff and against defendant, in sum of $15,000 remitted to $3,750 (Appeal, No. 40), and in sum of $35,000, remitted to $8,750 (Appeal, No. 41), and judgments thereon. Defendant appealed.

The judgments appealed from are affirmed.

William F. Quinlan, with him Fox & McTighe, for appellant.

Victor J. Roberts, for appellee.

Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.

OPINION

MR. JUSTICE JONES

These appeals are from judgments for the plaintiff in two separate suits for libel. The cases were consolidated for trial and both appeals raise the same legal questions. Originally, the defendants were Norristown Herald, Inc., which publishes the Times Herald, a daily newspaper, of Norristown, Pennsylvania, and Ralph Beaver Strassburger, the president and substantial owner of that company. The defendants were jointly impleaded on the theory that they were jointly responsible for certain allegedly libelous writings carried by the Times Herald.

At a former trial the jury returned verdicts for the plaintiff in the sums of $12,500 against Strassburger and $25,000 against Norristown Herald, Inc., in each case, for a total of $75,000. The learned trial judge, deeming the verdicts excessive and not correctable by way of remittiturs (being for different sums against alleged joint tort-feasors), granted the defendants' motions for a new trial. The plaintiff thereupon discontinued as to Strassburger in each case without objection from the remaining defendant. At the new trial, the jury returned verdicts in the plaintiff's favor for $15,000 in the case at No. 36 September Term 1942, and for $35,000 in the case at No. 83 September Term 1942. The defendant filed motions for judgments n.o.v. and for a new trial which the learned court below denied save that it conditioned its refusal of the motions for new trial upon the plaintiff's filing remittiturs in prescribed amounts within a specified time. The plaintiff duly filed the remittiturs and judgments were entered on the verdicts, as thus reduced, in the sums, respectively, of $3,750 in the case at No. 36 below and $8,750 in the case at No. 83. From the judgments so entered the defendant took the present appeals.

In support of its motions for judgment n.o.v. the appellant contends that (1) the plaintiff's discontinuance as to defendant Strassburger, which came after the statute of limitations had run, served to deprive the remaining defendant of its right to contribution by the other alleged joint tort-feasor, (2) the discontinuance worked a release of Strassburger's liability which operated to relieve the remaining defendant also, and (3) the learned trial judge erred in refusing to direct verdicts for the defendant in accordance with its requests which it based on the ground that the writings complained of were neither libelous nor evidence of libel. The latter point is also covered by assignments which impute trial error in the court's admitting the writings in evidence over the defendant's objections.

Under the Act of May 4, 1852, P.L. 574 § 2 (12 PS § 533) as construed by the Act of April 12, 1858, P.L. 243 § 1 (12 PS § 534) it was the plaintiff's right to discontinue as to one of the defendants even though they were alleged to be joint tort-feasors. See Booth v. Dorsey, 202 Pa. 381, 385-386, 51 A. 993. In that case, the plaintiff took a voluntary nonsuit as to two of three alleged joint tort-feasors. As to the legal justification for the elimination of all but one of the parties defendant, this Court said in the Booth case that "The mistake for which an amendment should be allowed [under the statutes] may be either of fact or law, and when it is made to appear, it is the duty of the court to correct it:" (citing Kaylor v. Shaffner, 24 Pa. 489).

Here, Norristown Herald, Inc., was the master and Strassburger, its servant. With the defendants in that relationship, it was a mistake of law for the plaintiff to treat them as joint tort-feasors. Their torts were several: cf. East Broad Top Transit Company v. Flood, 326 Pa. 353, 356, 192 A. 401. Notwithstanding that all parties defendant may now be brought upon the record regardless of whether their liability is joint or several (see Williams v. Kozlowski, 313 Pa. 219, 226, 169 A. 148) it is a mistake none the less to sue, as jointly liable, alleged tort-feasors, whose liability, if any, must necessarily be several. The mistake was evident on the face of the pleadings. A formal affidavit, pointing out the error, would not have added anything to what otherwise clearly appeared. Such an affidavit was therefore unnecessary, especially, when none was required by the court as a basis for the discontinuance. In the absence of any objection by the defendant to the entry of the discontinuance or any motion to strike it off, the court's leave to the plaintiff to discontinue is to be presumed. Shapiro v. Philadelphia, 306 Pa. 216, 220-21, 159 A. 29; Commonwealth v. Magee, 224 Pa. 166, 168, 73 A. 346.

Even if the torts alleged were joint, the plaintiff could have discontinued at trial as to one of the two defendants and have proceeded against the other without any requirement that he prove joint torts as a prerequisite to fastening liability upon the remaining defendant for the wrongs alleged and proven. Such has been the rule since the Act of June 29, 1923, P.L. 981 (12 PS § 685). See Gable v. Yellow Cab Co., 300 Pa. 37, 38, 150 A. 162; and Cleary v. Quaker City Cab Co., 285 Pa. 241, 245, 246, 132 A. 185. It can hardly be suggested, therefore, that the mere discontinuance served to introduce a new cause of action. Nor was a new cause of action in fact introduced by reason of the amendment. The wrongs alleged remained precisely as the plaintiff had originally pleaded them. Consequently, the fact that the statute of limitations had run at the time of the discontinuance was of no legal significance. Cf. Booth v. Dorsey, supra; also Thompson-Starrett Co. v. Heinold, 60 F.2d 360, 361 (C.C.A. 3).

The remaining defendant was not harmed by the discontinuance. Whatever right it may have had to contribution from the other defendant, the liability therefor could not have arisen until judgment had been entered against it on account of the plaintiff's claims. Ashley v. Lehigh & Wilkes-Barre Coal Company, 232 Pa. 425, 431-2, 81 A. 442; Redman v. City of Scranton, 114 Pa.Super. 148, 152, 173 A. 892. Rule 2232 (b) of the Rules of Civil Procedure (Pa.) is not presently germane. It affords the procedure invocable by a misjoined party to have himself eliminated by the court. The relevant provision is Rule 2232 (d) which carries into effect the intent and purpose of the Act of 1923, cit. supra. What a court is thereby authorized to do at trial, a plaintiff may effect before or at trial with the court's approval which, as already stated, may be inferred in the circumstances.

The assignments of error relating to the discontinuance are accordingly overruled. Coming to the assignments which question the competency and legal sufficiency of the plaintiff's proofs of libel, the evidence discloses the following circumstances.

At the time of the alleged libelous publications, Bausewine, the plaintiff, was Chief of Police of Norristown, -- a position which he had occupied continuously for thirteen years. Until four years prior to assuming that post he had been, for almost twenty-nine years, a member of the police force of the City of Philadelphia from which he had retired on pension.

On July 28, 1942, the Times Herald published an editorial entitled "YOUTH AND AGE IN WAR." This editorial, after arguing the need of younger men in "the fighting services", stated that "By the same token, if in a kind of reverse ratio, old men holding official places important to home defense during the war should be replaced with younger men." This was followed by a paragraph which stated that, "Norristown has a septuagenarian police chief in this class. He was pensioned in Philadelphia over a decade ago but Norristown has employed the Philadelphia castoff ever since, during which he has drawn both his Philadelphia pension and his Norristown pay." (Emphasis supplied.)

Three days later (July 31, 1942), the Times Herald published a double column front page article under the following headline in large, bold-faced type: "Bausewine's Smash-up Recalled; His Pal Man With Criminal Record" and the following prominent sub-head: "Joe Allegro, With Many Aliases, Friend for 20 Years (While He Did Time) of Norristown's Chief of Police". The body of the article began with the statement that "If a man is known by the company he keeps or has kept, it may be interesting to Norristown people to be reminded of an automobile smashup * * * in which Chief of Police George Bausewine figured soon after he landed here". The "smashup" had reference to an automobile collision at a street intersection in Norristown which had occurred approximately eleven years before. Bausewine had been a passenger in one of the automobiles involved in the collision. The article identified "The driver of the car Bausewine occupied" as "an old-time friend of the chief's, one Joseph Allegro, who * * * was found guilty at a Montgomery County Court hearing and fined $10 and costs * * *". The article then stated that "the point of the whole affair is not so much who was...