Argued
January 15, 1906
Appeal, No. 282, Jan. T., 1905, by plaintiff, from judgment
of C.P. No. 2, Phila. Co., March T., 1903, No. 3407, on
verdict for defendant in case of Harry L. Burkhart v. The
North American Company. Affirmed.
Trespass
for libel. Before BARRATT, J.
The
alleged libelous article was as follows:
"Mrs
Carter Victor in War on Orchestra.
"Stubborn
Musicians Nearly Prevented Performance of 'Du Barry'
at the Broad.
"Discords
Enraged Her.
"Row
Behind Scenes Ends in Ejectment of Oboe, Bassoon and Four
Brasses.
"Those
persons who were in the audience at the Broad Street Theater
last Tuesday night will not know, until they read this, how
near they came to being turned away without seeing the
performance of 'Du Barry.'
"For
a full half-hour before the curtain rose there was a lively
time behind the scenes, with David Belasco and Mrs. Carter as
the contestants on the one side and representatives of Nixon
& Zimmerman on the other. In the end the Belasco-Carter
forces were victorious.
"It
was all about the Broad Street Theater Orchestra. When the
'Du Barry' engagement began that organization was
enlarged from eleven to seventeen pieces; Mr. Belasco paying
more than half of the additional expense.
"Before
the first performance there was ended Mrs. Carter complained
that the discords of the orchestra had almost set her
frantic, and she sent for Arthur Pell, her musical director
and instructed him to 'cut out' the extra pieces
which consisted of four brasses, an oboe and a bassoon.
"But
they Only Laughed.
"Mr.
Pell obediently informed the brasses, the oboe and the
bassoon to this effect, but to his amazement they
discordantly laughed at him, saying that they had been
engaged by Mr. Kearney, the leader of the Chestnut Street
Theater Orchestra, who employs all musicians for the Nixon &
Zimmerman theaters, and that only from him would they take
their dismissal.
"The
matter was then allowed to rest until Mr. Belasco should
return from Atlantic City, Mrs. Carter vowing in the meantime
that the frightful noises of those six 'extras' were
rapidly ruining her nervous system.
"Mr
Belasco arrived last Monday night, listened to a few bars of
the overture and fled, with his fingers in his ears. When
quiet had been restored he returned and notified the Nixon &
Zimmerman representatives that unless the six wind
compressors were discharged before the next night there would
be no performance of 'Du Barry.'
"When
the next evening arrived and Director Pell took his seat the
six were still there, and when he ordered them out they again
turned up their noses at him and asked him who he was,
anyway; they didn't know him; they had been employed by
Mr. Kearney, etc.
"Then
Mr. Belasco and Mrs. Carter took action. They declared with
unmistakable emphasis, that the curtain would not rise until
the objectional sextette had been evicted, and Mrs. Carter
went so far as to produce her street costume, preparatory to
leaving the theater.
"Called
Off by Kearney.
"At
this interesting point the Nixon & Zimmerman authorities,
represented by one Love, who felt anything but his name for
the Belasco-Carter interests, called up Kearney over the
'phone and had Kearney call off the objectionable six.
"The
curtain then arose and the performance proceeded, 'with
just eleven-seventeenths of the previous amount of
discord,' as one of the company phrased it.
"Apropos
of the incident it is said, on good authority, that when the
Rogers Brothers played at the Chestnut Street Theater they
found the orchestra there so little to their liking that they
had it exchanged for that of the Broad Street Theater, but
when they got the latter it was so much worse that they asked
and obtained the return of the first aggregation."
At the
trial the court excluded under objection and exception
evidence of the plaintiff's reputation as a musician.
Defendant
presented the following points:
2. If
the jury believe that the article published does not
designate or identify the plaintiff, the verdict must be for
defendant. Answer: That point I affirm. [5]
3. If
the article is substantially true as published, there can be
no verdict for plaintiff. Answer: That point I affirm. [6]
4. If
the article correctly reports the fact of the plaintiff's
discharge, and does not make any reflections or allegations
respecting his professional competency, your verdict should
be for defendant. Answer: This point I affirm. [7]
Verdict
and judgment for defendant. Plaintiff appealed.
Errors
assigned were (1-4) rulings on evidence, quoting the bill of
exceptions; (5-7) above instructions, quoting them.
Judgment affirmed.
William
H. Burnett, with him Adolph Schewe, for appellant. -- Where
the skill of a person is one of the questions in issue,
evidence can be offered to prove it: 1 Wigmore on Evidence,
sec. 87.
The
jury should have been told that the identity of plaintiff
could be proved by testimony outside of the article:
Clark v. North American Co., 203 Pa. 346.
There
must be a plea of justification to permit evidence of the
truth: Porter v. Botkins, 59 Pa. 484; Kay v.
Fredrigal, 3 Pa. 221; Updegrove v. Zimmerman,
13 Pa. 619; Smith v. Smith, 39 Pa. 441; Hartranft v.
Hesser, 34 Pa. 117.
A libel
on reputation is never justifiable: Hayes v. Press
Co., 127 Pa. 642; Wallace v. Jameson, 179 Pa.
98; Wood v. Boyle, 177 Pa. 620; Republican Pub.
Co. v. Miner, 20 Pac. Repr. 345; Krug v.
Pitass, 76 Am. St. Rep. 317; Moore v. Francis,
18 Am. St. Rep. 810; McAllister v. Detroit Free Press Co., 15
Am. St. Rep. 318.
James
Gay Gordon, for appellee. -- It has long been established in
Pennsylvania that in an action for libel the plaintiff cannot
introduce evidence of reputation and character in his own
behalf until, in some manner at the trial, his reputation is
attacked by the defendant, for until then "the law
presumes and the defendant admits that it is good:"
Chubb v. Gsell, 34 Pa. 114; Petrie v. Rose, 5 W.
& S. 364; Clark v. North American Co., 203 Pa. 346.
In
every action for libel it is a necessary allegation, and must
be proved that the thing complained of was published of and
concerning plaintiff. In this case it will be remembered that
the plaintiff was nowhere named, and certainly was not
referred to personally: Townshend on Libel & Slander, 629.
The
truth is an answer to the action,...
