Pittock v. O'Niell

• Decision Date: 03 January 1870
• Citation: 63 Pa. 253
• Court: Pennsylvania Supreme Court
• Parties: Pittock and Mills <I>versus</I> O'Niell.

63 Pa. 253

Pittock and Mills versus O'Niell.

Supreme Court of Pennsylvania.

November 13, 1869.

January 3, 1870.

November 13th 1869.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Allegheny county: No. 159, to October and November Term 1869.

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T. M. Marshall, for plaintiffs in error.—When the article is not per se libellous the jury is to decide: Graves v. Walter, 19 Conn. 90; Hakewell v. Ingram, 28 Eng. Law & Eq. 413, 2 Green. Ev. § 411. The defendants had a right from good motives, and for the information of the public, to publish the petition for divorce and comment on it, and therefore whether libellous or not should have been submitted to the jury: Parmiter v. Coupland, 6 M. & W. 105; Mix v. Woodward, 12 Conn. 287; Huff v. Bennet, 4 Sandf. 120; Newman v. Atto, Id. 668; Snyder v. Andrews, 6 Barb. 43; People v. Croswell, 3 Johns. Cases 336; Townsend on Law of Libel, § 69 and note 55, §§ 282, 284, 285, 288; Lancey v. Bryant, 30 Maine (17 Shep.) 466; Powis v. Smith, 5 B. & Ald. 850; Abrams v. Smith, 8 Blackf. 95; Townsend on Law of Libel 379, and notes 1145, 1447, 1448; Heard on Libel, §§ 89 90, 103, 110; Insurance Company v. Walden, 12 Johns. 513; Haight v. Cornell, 15 Conn. 74; Howard v. Thompson, 21 Wend. 319. The publication was a privileged publication, and it was incumbent upon plaintiff to prove malice: Gray v. Pentland, 2 S. & R. 23; s. c., 4 Id. 420; 2 Greenleaf on Evidence, § 418; Thorn v. Blanchard, 5 Johns. 508; Vanderzee v. McGreggor, 12 Wend. 545; White v. Nicholls, 3 How. 266; Gilpin v. Fowler, 26 Eng. Law & Eq. 386.

J. H. Hampton and A. M. Brown, for defendant in error.— It was for the court to construe the language of the publication and determine whether it was libellous per se: Townsend on Libel, § 286; Green v. Telfair, 20 Barb. 11; Fry v. Bennett, 5 Sandf. 54; Snyder v. Andrews, 6 Barb. 43; Hunt v. Bennett, 19 N. Y. 173; Hakewell v. Ingram, supra; Shattuck v. Allen, 4 Gray 541. The charges in the article were unequivocal; and the plaintiff clearly indicated by his name, business, &c., it was a libel per se: Townsend on Libel, § 176, and notes. It is only where the words are of dubious import that the jury is to construe them: Hays v. Brierly, 4 Watts 392; Van Vechten v. Hopkins, 5 Johns. 211. "Not Guilty" admits the falsehood of the words, and does not raise the question of privileged publication; nor under this plea can there be evidence to disprove malice: Townsend on Libel, § 40; Thomas v. Danaway, 30 Ill. 373; Chapman v. Calder, 2 Harris 365; Minesinger v. Kerr, 9 Barr 312; Kay v. Fredrigal, 3 Id. 221; Petrie v. Rose, 5 W. & S. 364; Barger v. Barger, 6 Harris 489.

Malice is implied from an untrue publication: Townsend, § 77, 78, and notes 76, 77, 80, § 287, 288; Littlejohn v. Greeley, 13 Abb. Prac. Reps. 55; Howard v. Sexton, 4 Comst. 157-160; 2 Greenleaf on Evidence, § 410-421. They referred also to 2 Wharton's Am. Crim. Law, 2561-2572, 2577-2581; 2 Archbold's Crim. Law, 245, 246, and notes; Commonwealth v. Culver, 2 Penna. L. J. 362; Donelly v. Public Ledger, 2 Phil. Reps. 57; Elliott v. Boyles, 7 Casey 65.

The opinion of the court was delivered, January 3d 1870, by SHARSWOOD, J.

As the rule is well expressed by an approved elementary writer, — "the quality of the alleged libel as it stands on the record, either simply or as explained by averments and innuendoes, is purely a question of law for the consideration of the court:" 2 Starkie on Slander and Libel 281. That this was the law in England, both in civil and criminal proceedings, up to 1792, was maintained so rigidly that nothing was submitted to the jury in such cases but the fact of publication and the truth of the innuendos: Rex v. Woodfall, 5 Burr. 2661; The King v. The Dean of St. Asaph, 3 T. R. 428, note; The King v. Withers, 3 T. R. 428. In consequence of these decisions the statute of 32 Geo. 3, c. 60, commonly known as Mr. Fox's Act, was passed. This statute is confined in terms to trials of indictments or informations, when an issue or issues are joined between the king and the defendant or defendants on the plea of not guilty pleaded, in which case it declared and enacted that the jury may give a general verdict of guilty or not guilty upon the whole matter put in issue, and should not be required or directed to find the defendant guilty merely on proof of the publication, and of the sense ascribed to the same in the indictment or information. By the second section it was provided "that on every such trial the court or judge, before whom such indictment or information shall be tried, shall, according to their or his discretion, give their or his opinion and direction to the jury on the matter in issue between the king and the defendant or defendants, in like manner as in other criminal cases." It has never been pretended that this statute had any application to civil actions: Levi v. Milne, 4 Bingh. 195; and its obvious intention was merely to restore to juries their common-law right to give a general verdict in cases of libel, just as in other criminal cases, of which they had been unconstitutionally deprived. Hence the law was carefully made declaratory. The seventh section of the ninth article of the Constitution of Pennsylvania has expressed the same constitutional doctrine and incorporated it with the Declaration of Rights. "In all indictments for libels the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases." There can be no doubt that both in criminal and civil cases the court may express to the jury their opinion as to whether the publication is libellous. The difference is, that in criminal cases they are not bound to do so, and if they do, their opinion is not binding on the jury, who may give a general verdict in opposition to it, and if that verdict is for the defendant, a new trial cannot be granted against his consent. As our declaration of rights succinctly expresses it, the jury have the right to determine the law and the facts in indictments for libel as in other cases. But in civil cases the court is bound to instruct the jury as to whether the publication is libellous, supposing the innuendoes to be true, and if that instruction is disregarded, the verdict will be set aside as contrary to law.

In England the courts have recently disregarded, to some extent, this plain distinction between criminal and civil proceedings. It appears to be put upon the ground that Mr. Fox's Act, though limited in terms to indictments and informations, was declaratory of the law in all cases of libel; upon what principle of construction, however, it is not very easy to understand. It is there the approved practice for the judge in civil actions, after explaining to the jury the legal definition of a libel, to leave to them the question whether the publication upon which the action is founded falls within that definition: Folkard's Starkie 202; Baylis v. Lawrence, 11 Ad. & Ell. 920; Parmiter v. Coupland, 6 M. & W. 105; Campbell v. Spottiswoode, 3 B. & S. 781; Cox v. Lee, 4 Exch. Law Rep. 284. These cases were followed in Shattuck v. Allen, 4 Gray 540.

Yet it is clearly held that a verdict for the defendant upon that issue will be set aside and a new trial granted: Hakewell v. Ingram, 28 Eng. Law & Eq. Rep. 413. "Though in criminal proceedings for libel," said Jervis, C. J., "there may be no review, in civil matters there are cases in which verdicts for the defendant are set aside upon the ground that the matter was a libel, though the jury found it was not." This must be conceded to be an anomaly; and it will be best to avoid a practice which leads to such a result. The law, indeed, may be considered as settled in this state by long practice, never questioned, but incidentally confirmed in McCorkle v. Binns, 5 Binn. 340, ...