Pittsburgh, Allegheny and Manchester Passenger Railway Co. v. McCurdy
| Decision Date | 07 February 1887 |
| Docket Number | 109 |
| Citation | 8 A. 230,114 Pa. 554 |
| Parties | Pittsburgh, Allegheny and Manchester Passenger Railway Co. v. McCurdy |
| Court | Pennsylvania Supreme Court |
October 30, 1886
ERROR to the Court of Common Pleas No. 1, of Allegheny county: Of October Term, 1886, No. 109.
This was an action on the case brought by H. B. McCurdy against the Pittsburgh, Allegheny & Manchester Passenger Railway Company, and Charles P. Sorg, to recover damages alleged to have been sustained by him, by reason of a libellous notice posted by the defendants, of and concerning him.
The defendants pleaded "not guilty."
The facts of the case, as they appeared on the trial before COLLIER, J., are sufficiently stated in the opinion of the Supreme Court.
On the trial the plaintiff called numerous witnesses to testify as to what they understood the alleged libellous notice to mean under objection they were permitted to testify as to this. They testified that they understood that the plaintiff was discharged for stealing. (Seventh, eighth, ninth, tenth and eleventh assignments of error.)
The court charged the jury inter alia as follows:
Now the first question that you have to determine is, what is the true meaning of the words in that paper, "not ringing up all fares collected?" . . . . If the meaning of the words if not as claimed by the plaintiff, that is, that he the plaintiff, had embezzled the money, or property of the company representing money, did not ring up all the fares collected, and thus defrauded the company, the plaintiff's case utterly fails. But if you think from all the evidence that the words do bear that interpretation, and that that is what is meant, and that that is the charge, then the next question would be where the alleged libel was posted and under what circumstances.
Verdict for the plaintiff in the sum of $400, as against the Pittsburgh, Allegheny and Manchester Passenger Railway Company, and for the defendant, Charles P. Sorg, and judgment thereon, whereupon the Railway Company took this writ assigning for error inter alia the admission of evidence and that portion of the general charge as shown above.
Judgment reversed.
William R Blair, for plaintiff in error. -- It has been expressly decided by this court that it is not competent to prove by witnesses the special averments of the innuendo in the declaration: Rangler v. Hummel, 1 Wright, 130.
The notice proved in this case was no libel; first, because it contains no imputation whatever injurious to the plaintiff's character; and secondly, because, even supposing the notice might be distorted so as to acquire the meaning so unjustifiably imputed to it by the plaintiff, yet the evidence indisputably shows that this communication was made "upon a proper occasion from a proper motive," and was based not only "upon a reasonable or probable cause" but upon actual fact.
Whether a communication be prvileged or not is a question for the court and not for the jury. The court erred, therefore, in submitting the question in this case to the jury: Briggs v. Garrett, 1 Amerman, 414; Marks v. Baker, 12 Rep., 530.
W. D. Moore and F. C. McGirr, for defendant in error. -- Whenever the alleged libellous words are not ordinary English, but local, technical, provincial, or obsolete expressions, or slang or cant terms, evidence is admissible to explain their meaning, provided such meaning has been properly alleged in the statement of claim. But when the words are well known and perfectly intelligible English, the court will give them their ordinary English meaning, unless it is in some way shown that that meaning is inapplicable. This may appear from the words themselves, for in some cases to give them their ordinary English meaning would make nonsense of them. But, if in their ordinary English meaning the words would be intelligible, facts must be given in evidence to show that they may have been used in a particular sense on this particular occasion. After that has been done, a by-stander may be asked, "What did you understand by the expression used?" Odgers on Libel and Slander, *110, 538; Townshend on Slander and Libel, 651. See also Abbott's Trial Evidence, 664; Wharton on Evidence, Sec. 975, and authorities cited. Woods' Ed. of Folkhard's Starkie on Slander and Libel, *445, Sec. 562 and 563.
In support of plaintiff's points in court below, we cite, Where there is excess of privilege, malice is an inference of law: Pittock v. O'Neil, 13 P.F.S. 253.
To overcome the defence of privileged communication, want of probable cause may be left to jury as evidence of malice: Gray v. Pentland, 4 S. & R., 420.
So malice to take away privilege need not be proved by extrinsic evidence. It may be inferred from the relation of the parties, the circumstances attending the publication, and even the terms of the publication: Gassett v. Gilbert, 6 Gray, (Mass.,) 98; Hatch v. Lane, 105 Mass. 394; Odgers on Libel, &c., *270.
Privilege may be lost if extent of publication be excessive: Odgers on Libel, &c., *225; Phila., Wil. & Bal. R.R. Co. v. Quigley, 21 Howard, U.S., 202; Tench v. Gt. Western Ry. Co., 33 U.C.R., 8.
Before GORDON, TRUNKEY, STERRETT, GREEN, and CLARK, JJ. MERCUR, C.J., and PAXSON, J., absent.
The plaintiff in this case, H. B. McCurdy, was in January 1885, employed as a conductor on the cars of the Pittsburgh, Allegheny and Manchester Passenger Railway Company; and, on the 13th May, 1885, was discharged from that employment. Subsequently, complaints were made that he still claimed the right to ride on the company's cars, on tickets to which employes only were entitled; whereupon, the company posted, in the room temporarily used as a waiting room, a notice containing the alleged libellous matter complained of, in the following form: --
The declaration is not printed, but according to the statement in the paper books, it contains two counts;...
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