Argued
December 3, 1906
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Appeal
by defendant, from judgment of C.P. Montgomery Co.-1904, No.
10, on verdict for plaintiff in case of William J. Binder v.
Pottstown Daily News Publishing Company, Incorporated.
Libel
to recover damages for libel. Before Weand, J.
At the
trial it appeared that the alleged libelous publication was
as follows:
"
IF YOU SEE IT IN THE LEDGER, IT'S NOT SO.
"
HOW A ONCE RELIABLE NEWSPAPER HAS GRADUALLY LOST ITS
REPUTATION.
"
CHEAP METHODS OF SECURING NEWS.
"
NEWS ARTICLES HAVE BEEN PRINTED WITHOUT MAKING ANY ATTEMPT TO
VERIFY THEIR FACTS -- HOW IT CAST REPROACH UPON THREE
CITIZENS OF POTTSTOWN THROUGH CRIMINAL CARELESSNESS.
"
For more than a score of years a small -- and constantly
growing smaller -- number of Pottstown people have looked up
to the Daily Pottstown Ledger as being a journalistic paragon
that could not, by any possible means, print a line that
would not pass muster as being irreproachable as to morals
and as veracious as the Bible. This reputation was gained for
the Ledger as a weekly, under the editorship of Lewis Davis,
one of the ablest editors that the Schuylkill valley ever
saw. Since his death, however, William J. Binder, the present
publisher, has been living upon the reputation made by the
late Mr. Davis through many years of the most careful
newspaper work, but in late years the faith of the readers of
the Ledger has received numerous jolts.
"
To put it plainly, it has been as unreliable as cheap
newspaper hired men could make it. The brains of the former
management have given place to a $ 7.50 a week handy man, who
is expected to collect news, dun subscribers and advertisers
for their overdue bills, solicit job work and calendar
orders, help put up the mails, see the undertakers and
doctors, and, in fact, many other duties that a newspaper-man
could not be expected to do.
"
The result of this policy of economy has been evident in its
columns for several years. It has deliberately printed news
without any attempts to verify the facts, depending upon the
'runner' and the telephones to get their local news.
Perhaps the most flagrant example of inaccuracy and a libel
upon the fair name of three reputable citizens, whose names
happen to be John Levengood, was printed in their columns on
Thursday.
"
A man named George B. Levengood, residing at Bramcote, was
arrested in the morning by detective 'Jack'
O'Connor, charged with a serious offense. The
Ledger's 'runner' heard that the man's name
was Levengood, and without any attempt to verify either the
name or facts, he rushed to the office, and the Ledger came
out on Thursday afternoon and stated that 'John
Levengood, of this town, was arrested this morning by
Detective John O'Connor on a most serious charge, that of
indecent assault.'
"
There are three men in Pottstown bearing the name of John
Levengood, all of whom are reputable citizens, and who have
been grossly libeled by the Ledger in its criminal
carelessness to verify the information it may have had before
printing it. Each one of them would have good cause for libel
against the publisher of the Ledger were the latter
responsible in a financial way. Common justice to the parties
aggrieved should have prompted the publisher of the Ledger to
print an apology yesterday in his columns, but not a word
appeared.
"
The readers of the Ledger were left under the impression that
the news as printed in the Ledger was true, and innocent men
were left under the shadow of suspicion of a serious offense.
This was only in keeping with the policy of the publisher of
the Ledger, who has repeatedly made false statements in his
columns, and only retracted them in cases where he was forced
to do so. A few of the many fake news items published in the
Ledger during the past few months are given below."
The
plaintiff was asked this question:
"
Q. Mr. Binder, you are a man of family?
A. Yes,
sir."
The
Court: I understand the objection is based upon the
proposition that the article complained of as libelous refers
only to the property of the plaintiff and not to him
personally. The statement in the case alleges injury to the
plaintiff in his character and reputation and also that it is
a reflection upon his business. The statement starts out by
giving certain headlines which are sufficient to call
attention to the article itself. Now the statement here makes
no further reference to the article than simply setting forth
these headlines. The argument of the defendant's counsel
might have some weight at this stage, that is, that the
article was directed entirely against the paper and not
against the individual; but after it sets forth these
headlines, which were calculated to call attention to it, the
plaintiff goes on by saying " which said article is set
out at large and attached to and made a part of this
statement." The whole article, therefore, becomes part
of the statement, and in that article the plaintiff is named
personally. Therefore, I think that the point of the
objection is not well taken. The objection is overruled and
an exception is noted for the defendant. Bill sealed.
"
Q. What is the circulation of your newspaper now?
A. It
don't show any loss -- "
Mr.
Larzelere: We are not attempting to show special damages; we
don't propose to do that, and don't claim that, and
this examination is objected to.
The
Court: The objection is sustained. In this class of cases the
plaintiff may be entitled to damages, although he does not
show a penny in loss.
Judge
Gordon:
As to financial responsibility, we can't agree
with your honor. It seems to me the plaintiff asks damages at
the hands of the jury in the statement; damages to his
newspaper, and it is averred in his statement to his
business; and if we show his business has not been affected,
the result would be for this jury to determine only the
question of a technical right to a verdict.
The
Court: There is no claim for special damages, and, therefore,
you can't show that; so far as the case has progressed,
if he recovers damages at all, it is simply as compensation
for the character of the article.
(Discussion.)
The
Court: The article having been exhibited to jury and not
having shown a penny of loss, then the damages might be
merely nominal.
Judge
Gordon:
We ask for an exception, your honor.
The
Court: The objection is sustained, and an exception noted for
the defendant; bill sealed.
Judge
Gordon:
We now offer to prove by cross-examination that the
circulation of plaintiff's paper has not been injuriously
affected by this publication, and that his business has not
been injuriously affected by the publication.
Mr.
Larzelere: Objected to.
The
Court: The objection is sustained; defendant excepts; bill
sealed.
The
court charged as follows:
Gentlemen
of the jury: -- The plaintiff in this case is the publisher
of a paper in the borough of Pottstown. The defendant also
publishes a paper in the same borough. The plaintiff has
claimed in this action that the defendant, in its paper, has
published a false and defamatory article reflecting upon him
personally, and also upon that of his paper. It is
technically called an action of libel. It is in effect of a
double character; that is, a libel against him individually
and also against his property or business.
Now
the bill of rights provides that the printing press shall be
free to every person who may undertake to examine the
proceedings of the legislature or any branch of government,
and no law shall ever be made to restrain the right thereof,
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. It has been held that the freedom of
the press is allowable in discussing the acts of our
legislators and those who are in public life, and the conduct
of our public officers. and the freedom also exists in the
right of every newspaper to criticise every public officer,
but this privilege must be exercised in certain ways. It must
be done in a proper manner, for when made improperly the
privilege is lost. [The make-up of this publication as shown
by the headlines was sensational. The motive, therefore,
evidently was to attract attention rather than to give
information.] Now you will have this publication before you;
you will examine it, and it may assist you in determining
what the result of your verdict shall be. You will examine it
and ascertain whether the make-up is too sensational; whether
it was done in a proper manner, and what its evident purpose
was; this only for the purpose of determining what shall be
the amount of the damages awarded. 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, is a libel, and the person libeled may recover
damages, unless it be shown that the publication was true, or
that it was justifiably made. Now, we say that definition
says " any malicious publication." Malice is said
to be essential to an action for libel, but it is malice in a
special and technical sense, which exists in the absence of
lawful excuse, and where there may be no spite or ill-will,
or disposition to injure others. Every publication having the
other qualities of a libel, if willful and unprivileged, is
in law malicious. The publication of words actionable in
themselves is...
