Binder v. Pottstown Daily News Publishing Co. Inc.

• Decision Date: 15 April 1907
• Docket Number: 246-1905
• Citation: Binder v. Pottstown Daily News Publishing Co. Inc., 33 Pa.Super. 411 (Pa. Super. Ct. 1907)
• Parties: Binder v. Pottstown Daily News Publishing Company, Incorporated, Appellant
• Court: Pennsylvania Superior Court

33 Pa.Super. 411

Binder v. Pottstown Daily News Publishing Company, Incorporated, Appellant

No. 246-1905

Superior Court of Pennsylvania

April 15, 1907

Argued December 3, 1906[Syllabus Matter][Syllabus Matter][Syllabus Matter][Syllabus Matter][Syllabus Matter][Syllabus Matter][Syllabus Matter][Syllabus Matter][Syllabus Matter]

Appeal by defendant, from judgment of C.P. MontgomeryCo.-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 articlethe 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 casesthe 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...