Rowand v. DeCamp

• Decision Date: 05 January 1880
• Citation: 96 Pa. 493
• Parties: Rowand <I>versus</I> DeCamp.
• Court: Pennsylvania Supreme Court

Page 493

96 Pa. 493

Rowand versus DeCamp.

Supreme Court of Pennsylvania.

November 11, 1879.

January 5, 1880.

November 11th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ. GREEN, J., absent

Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, No. 4.

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Marshall Swartzwelder and Robb & Fitzsimmons, for plaintiff in error.—When the circumstances of the publication are controverted or uncertain a case is presented in which the court is to instruct the jury what condition of circumstances would under the publication be privileged, and then leave it to the jury to determine the character of the publication: Duncan v. Brown, 15 B. Mon. 136; Townshend on Slander and Libel, sects. 287, 288, pl. 387; Durby v. Ouseley, 36 Eng. Law and Eq. R. 518; Wenman v. Ash, 13 C. B. 836.

Although the specific charge upon which the plaintiff relied was of the date of January 4th 1875, long prior to the issue of any borough bonds for the improvement of the streets and erection of a town hall, yet under the second point, language used long subsequent to January 4th 1875, by the defendant, must be taken into account by the jury in construing the language used by the defendant of January 4th 1875. Such a position can certainly not be supported: Smith v. Smith, 3 Wright 441; Barr v. Hack, 46 Iowa 308; Garrett v. Dickerson, 19 Md. 418. The third point of defendant, being the third assignment of error, lays down a principle which, if law, would sap the foundation of any society sufficiently human to require public officers or servants. To say that "the citizen is protected whenever he speaks the truth as he designs to be understood, and as he is understood by his hearers, no matter what may be the form of expression or the language employed," is simply to say that the private character and reputation of any citizen, no matter how honorable or just he may be, who may serve as officer or public servant, is open continually to the scurrilous attacks of abandoned and dissolute men.

It is the duty of the court to pass upon a question of privilege, and the jury to find the facts under the charge of the court. Whether words sufficient in themselves to raise the legal presumption of malice, are privileged, is a question of law, determinable from the circumstances attending their utterance: Garrett v. Dickerson, 19 Md. 418.

It is not competent for the defendant to prove that a rumor prevailed in the neighborhood of the truth of the words spoken by him: Miller v. Varner, 2 Pitts. 149; Chapman v. Calder, 2 Harris 365; Pease v. Shippen, 30 P. F. Smith 513.

Hampton & Dalzell and Thomas M. Marshall, for defendant in error.—That the facts in controversy were justly submitted under proper legal direction by the court is manifest. If the words were spoken of and concerning Rowand as burgess, in a matter free to public debate and criticism, good faith is the rule, good faith in an honest expression of the public conduct of a public officer. It is complained that this court did not assume the function of the jury aud decide the fact. DeCamp had testified that all his utterances were in regard to, and touching the public conduct of Rowand as burgess. The court could not decide the fact, it was for the jury. The specific charge of January 4th 1875, was specifically denied by DeCamp. The authorities cited by counsel are against them. When the language is certain and undisputed, as in a printed libel, it is for the court to pass upon the character of the publication, but when as here, the speaking of the words and the circumstances of the speaking are in controversy, it must be left to the jury to find the facts.

In all cases of slander or libel excusable on the ground of being privileged, "all the facts and circumstances may be given in evidence by the defendant to show probable ground and to rebut the idea of malice."

Numerous authorities are cited in the opinion, and the question is settled in Pennsylvania that evidence tending to prove the truth of the charge may be given in evidence, under the general issue alone, when words are spoken of a public servant in his official capacity.

The case of Chapman v. Calder was followed by the learned judge who tried this case. It governed and controlled the law of the case.

Mr. Justice TRUNKEY delivered the opinion of the court, January 5th 1880.

This cause was so fairly submitted that not a phrase of the general charge is alleged to be erroneous; and the plaintiff does not complain of the answers to his points, which embraced everything on which he desired special instructions. Therefore, no just complaint can be made that matter was omitted necessary to enable the jury to understand the case. The defendant's points, and answers thereto, must be considered with the charge, which explains and qualifies them. Indeed the charge and the points of both parties, which were affirmed, together constitute the instructions to the jury, and one part should not be taken without reference to the others. Had the verdict been for defendant, perhaps some of the assignments of error would be sustained — being in favor of the plaintiff, we cannot say the jury were misled.

In the disposition of this case we do not affirm the right of a citizen to call a public officer a thief, under such circumstances that the word would likely be understood in its...