Mengel v. Reading Eagle Co.

• Decision Date: 27 June 1913
• Docket Number: 211
• Citation: 241 Pa. 367,88 A. 660
• Parties: Mengel, Appellant, v. Reading Eagle Company
• Court: Pennsylvania Supreme Court

88 A. 660

241 Pa. 367

Mengel, Appellant, v. Reading Eagle Company

No. 211

Supreme Court of Pennsylvania

June 27, 1913

Argued March 3, 1913

Appeal, No. 211, Jan. T., 1912, by plaintiffs, from judgment of C.P. Berks Co., Aug. T., 1908, No. 74, on verdict for defendant in case of J. Hain Mengel and Ralph H. Mengel doing business as Mengel & Mengel, v. Reading Eagle Company. Affirmed.

Trespass for libel. Before ENDLICH, P.J.

From the record it appeared that one Kornacki brought a suit in trespass against Mengel & Mengel, real estate, loan, and insurance agents. After the suit was begun, but before the statement of claim was filed, defendant's reporter went to the office of Kornacki's attorney, and secured a copy of the statement of claim which was to be filed, and sent it to the editors of the "Reading Eagle," who made certain changes in the statement and then published it.

The published article, alleged to be libelous, was as follows:

"SUIT FOR DAMAGES; ALLEGES DECEIT.

"Andrew J. Kornacki, through W. B. Bechtel, instituted an action for deceit against Ralph H. Mengel, J. Hain Mengel and the Commercial Trust Company, to recover damages. It is alleged that Mr. Kornacki had $3,000 on deposit in the Reading Trust Company drawing 3 per cent. interest and that the Messrs Mengel called upon him prior to Oct. 21, last, at least several times, representing the advisability of withdrawing this money and engaging them to invest it in the purchase of a mortgage against property owned by Samuel Davies, 229-231 South Ninth street. He drew his check on the Trust Company for $3,000 to their order and invested it in the mortgage. It is claimed that at that time the property was assessed for city taxation at $1,750. On Dec. 23, 1907, Mr. Kornacki, desiring to borrow $25, obtained the amount from them, when it is alleged they induced him to sign a reassignment of the bond and mortgage to the Commercial Trust Company.

"The total amount loaned and disbursed for Mr. Kornacki by the Messrs. Mengel was $1,625. One hundred and fifty dollars, it is alleged, being still retained by them.

"On May 14, 1908, one day before the maturity of the $3,000, Mr. Kornacki called for the purpose of having them arrange for the payment of the balance then desired by him, but he says he could not secure satisfaction.

"On June 13, 1908, Mengel & Mengel, acting for the Commercial Trust Company, caused the bond and mortgage to be sold at the Reading Real Estate Exchange to Ralph H. Mengel, its attorney, for $1,700. Mr. Kornacki, it is claimed, at no time derived any benefit from the investment, and he says he was charged 6 per cent. interest for the loan."

The court, against the plaintiffs' objection, admitted in evidence the statement of claim in the Kornacki case, filed eleven days after the publication, which is the basis of the fourth assignment of error.

Other facts appear by the opinion of the Supreme Court.

Verdict for defendant, and judgment thereon. Plaintiffs appealed.

Errors assigned were various instructions to the jury, and various rulings of the trial judge.

The record is entirely free from error and the judgment is affirmed.

Cyrus G. Derr, with him Ralph H. Mengel, for appellant. -- The article related to the appellants' conduct of their profession or business, and was on the face of it prejudicial to their character in that business, and the court below should have declared to the jury that the article was libelous: Pittock v. O'Niell, 63 Pa. 253; McIntyre v. Weinert, 195 Pa. 52; Holland v. Flick, 212 Pa. 201; Hayes v. The Press Co., 127 Pa. 642.

The publication complained of having been made in the appellee newspaper June 19, 1908, it was error to admit in evidence the plaintiff's statement in the Kornacki case filed July 1, or eleven days after the injury done by the appellee to the appellants was complete: Cummings v. City of Williamsport, 84 Pa. 472; Velott v. Lewis, 102 Pa. 326; Colonial Trust Co. v. Getz, 28 Pa. S.Ct. 619.

Isaac Hiester, for appellee. -- Even if the article was not true it was not libelous: Colbert v. Caldwell, 3 Grant 181; Weierbach v. Trone, 2 W. & S. 408; Stitzell v. Reynolds, 59 Pa. 488; Pittsburgh Co. v. McCurdy, 114 Pa. 554; Price v. Conway, 134 Pa. 340; Lancaster v. French, 2 Strange 797; Garr v. Selden, 6 Barbour 416; Foster v. Small, 3 Wharton 138; Bruce v. Reed, 104 Pa. 408; Aspell v. Smith, 134 Pa. 59; Pittock v. O'Niell, 63 Pa. 253; Collins v. Dispatch Co., 152 Pa. 187; Meas v. Johnson, 185 Pa. 12; Montgomery v. New Era, 229 Pa. 165.

Before FELL, C.J., BROWN, MESTREZAT, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE BROWN:

The main complaint of the appellants is that the learned trial judge failed to instruct the jury that the publication which led to this action was libelous. If he had so instructed them, he would have erred.

Written or printed words injurious to one in his business, calling, trade or profession are libelous; and if, standing alone, "the common understanding of mankind takes hold of the published words, and at once, without difficulty or doubt, applies a libelous meaning to them," they are to be so construed as a matter of law: Hayes v. Press Company, 127 Pa. 642. If words are not in themselves libelous, but are averred to be so by innuendo, it is for the court in civil cases to instruct the jury as to whether they are libelous, assuming the innuendo to be true: Pittock v. O'Niell, 63 Pa. 253; Collins v. Dispatch Publishing Company, 152 Pa. 187; but where the words are of dubious import, and their meaning is averred by innuendo, the truth of the innuendo is for a jury -- that is, if the words are susceptible of the meaning ascribed to them, it is for a jury, and not for the court, to say whether they were used in that sense: Pittsburgh, Allegheny & Manchester Passenger Railway Company v. McCurdy, 114 Pa. 554; Price v. Conway, 134 Pa. 340; Collins v. Dispatch Publishing Company, supra; Wallace v. Jameson, et al., 179 Pa. 98. Under the foregoing and many other authorities to the same effect it was for a jury to say whether the words of which the appellants complain were libelous.

What is there on the face of the publication involved in the present case which makes it libelous per se? Nothing stated in connection with the advice alleged to have been given by the appellants to Kornacki to withdraw his money from the trust company and invest it in a mortgage reflects upon their personal integrity. The property upon which the mortgage was given may have been assessed at only $1,750, but non constat that it was not worth much more and that it did not amply...