Burkhart v. North American Co.

• Decision Date: 12 February 1906
• Docket Number: 282
• Citation: Burkhart v. North American Co., 214 Pa. 39, 63 A. 410 (Pa. 1906)
• Parties: Burkhart, Appellant, v. North American Company
• Court: Pennsylvania Supreme Court

63 A. 410

214 Pa. 39

Burkhart, Appellant, v. North American Company

No. 282

Supreme Court of Pennsylvania

February 12, 1906

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, not because it negatives the charge of malice (for a person may lawfully or maliciously utter slanderous matter, though true, and thereby subject himself to an...