Richwine v. Pittsburgh Courier Pub. Co.

• Decision Date: 11 June 1958
• Citation: 186 Pa.Super. 644,142 A.2d 416
• Parties: Roy E. RICHWINE, Trading and Doing Business as Williams Grove Park, Appellant, v. PITTSBURGH COURIER PUBLISHING CO., Inc.
• Court: Pennsylvania Superior Court

Page 416

142 A.2d 416

186 Pa.Super. 644

Roy E. RICHWINE, Trading and Doing Business as Williams Grove Park, Appellant, v. PITTSBURGH COURIER PUBLISHING CO., Inc.

Superior Court of Pennsylvania.

June 11, 1958.

Mark E. Garber, Jr., Garber & Garber, Carlisle, Margiotti & Casey, Pittsburgh, for appellant.

Henry R. Smith, Jr., Jones, Smith & Freeland, Pittsburgh, for appellee.

Before RHODES, P. J., and HIRT, GUNTHER, WOODSIDE, ERVIN and WATKINS, JJ.

WATKINS, Judge.

This is an appeal from the decision of the Court of Common Pleas of Allegheny County sustaining preliminary objections to an action in trespass for libel.

The appellant, Roy E. Richwine, trading and doing business as Williams Grove Park, is the owner and operator of an amusement park situate in Monroe Township, Cumberland County, Pennsylvania. The appellee, Pittsburgh Courier Publishing Co., Inc., is the publisher of a Negro newspaper in Pittsburgh, Pennsylvania and published the following article on September 15, 1956.

'The Harrisburg Windmill

By Lewis Ulen

'Zephyrs Start the Mill * * * Philosophus, our pet fire-eating dragon, who goes where angels fear to tread, gave us a delayed report of the annual orgy held in Williams Grove Park.

'This display of animalism, publicized, quite intentionally and erroneously, as a picnic, produced the usual mawkish fights, automobile accidents, stabbings and drunkenness.

'This is one affair promoted by Negroes which is a disgrace to Central Pennsylvania. The crowds will grow smaller each year until these 'business' men find it too unprofitable to promote.'

Each year for the past 24 years the annual Civic Union picnic has been held in Williams Grove Park. The picnic is exclusively for Negroes and is advertised as drawing in excess of 20,000 Negroes from eight States and the District of Columbia.

The appellant brought his action in trespass on the ground that the above article was libelous to him and that he is entitled to damages. The appellee publishing company demurred by way of preliminary objections and by so doing admits for the purpose of this appeal, the truth of every well pleaded material and relevant fact and every inference fairly deductible from the facts so pleaded.

Judge Nixon sets forth the question involved in his opinion: 'Libel may be defined as any malicious publication, written, printed or painted, which, by words or signs, tends to expose a person to ridicule, contempt, hatred, or degradation of character. Where the words are not in themselves libelous, as in this case, but are of dubious import and their meaning is averred by innuendo, the truth of the innuendo is for the jury. However, whether or not the writing is fairly or reasonably capable of being found libelous in nature under the circumstances is a question of law for the court, and only after such question has been resolved does it then become a question of fact for the jury to determine if the publication actually was defamatory.'

The function of the court and jury is set forth in the Restatement of the Law, Torts, Section 614, '(1) The Court determines whether a communication is capable of a defamatory meaning. (2) The jury determines whether a communication capable of a defamatory meaning was so understood by its recipient.'

The court, however, must first determine whether the communication is capable of the meaning ascribed to it by the appellant and whether the meaning so ascribed is capable of being defamatory. If either of these questions are decided against the appellant, there is no question to be submitted to the jury.

'The meaning of a communication is that which the recipient correctly or mistakenly but reasonably understands that it was intended to express.' Restatement of the Law, Torts, Section 563. And its applicability to the appellant is where, 'a defamatory communication is made concerning the person to whom its recipient correctly or mistakenly but reasonably understands it as intended to refer.' Restatement of the Law, Torts, Section 564.

The late Chief Justice Maxey who wrote the majority opinion in McAndrew v. Scranton Republican Publishing Co., 1950, 364 Pa. 504, at page 511, 72 A.2d 780, at page 783, said: 'It is elementary that 'An innuendo, however, can never add to nor change the (alleged) meaning of the defamatory statement, or operate as an averment...