Smith v. Times Publishing Co.

Decision Date04 January 1897
Docket Number212
Citation36 A. 296,178 Pa. 481
PartiesWilliam B. Smith v. The Times Publishing Company, Alexander K. McClure and Frank McLaughlin, Appellants
CourtPennsylvania Supreme Court

Argued January 28, 1896

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

Appeal, No. 212, July T., 1895, by defendant, from judgment of C.P. No. 3, Phila, Co., Sept. T., 1892, No. 549, on verdict for plaintiff. Reversed.

STERRETT C.J., and DEAN, J., concurred in the decision, but the former also favored sustaining the fourth assignment of error, and the latter favored reversing on the fourth assignment of error alone, and dissented from so much of the opinion of the court as held the act of May 20, 1891, constitutional.

Trespass for libel. Before GORDON, J.

The alleged libelous matter was contained in two articles published in the "Times" on the second and third days of October, 1892, and offered in evidence. The libelous part is sufficiently quoted in the charge of the court.

During the progress of the trial Mr. Shields, counsel for plaintiff said: "We challenge the defendants to prove the article and justify it if they will."

Mr. Rothermel: "Fortunately we are in a position in which that is not necessary, as Mr. Smith has proved the truth of it himself while upon the stand."

The Court: "It comes down, then, to the same point, as counsel alleges that the article is true."

Mr. Rothermel: "I will ask for an exception to that remark." Exception granted. [4]

The court charged in part as follows:

The plaintiff, William B. Smith, seeks at your hands damages for a libel alleged to have been published by the defendants, injurious to his character, and hurtful to his reputation as a man, a citizen, and a neighbor. He alleges that this wrong was done him while he was a private citizen, and that it was done maliciously, wickedly, and wrongfully, and with the specific intent to injure and defame him. The defendants are the publishers and the editor of a newspaper published in this city. The publication complained of was made in the defendants' journal on the second and third days of October, 1892. . . .

The publication complained of by this plaintiff related to the acts of a private citizen, and in making them the subject of a printed statement, the defendants in this case had no shield of privilege; and in the first instance, therefore, I charge you that the matter complained of as libelous was not a subject of "privilege." The simple question, or questions, therefore, for you to determine, is whether the publication was true or not, and whether it was injurious to the character of the plaintiff; whether it was defamatory to his reputation. It if was, then it is a libel, and he is entitled to recover a verdict at your hands.

The plaintiff alleges also that this libel was published with express malice, and with the intent to injure him, to work him harm, to make his character a subject of contempt and hatred, and to cause him to be believed to be guilty of a criminal offense. The effect of this allegation of express malice I will elaborate later on -- for the present I will merely say that if established it is a matter for which the jury may impose additional damages in computing the injuries sustained. The first thing which you will consider is whether the published matter for which the plaintiff seeks redress at your hands was true or not. If it was true then there was no libel and there can be no verdict for the plaintiff. If it was untrue, if it was false, then the verdict must be for him.

The nature of the defense in this case, as raised by the defendants' own plea, is such that the question of the truth or falsity of the publication has a peculiar and limited relation to the defense itself; but I say to you generally that for a libel such as that complained of by this plaintiff there can be no defense which will defeat his right to a verdict except proof of the substantial truth of all the substantial matters contained in the publication.

The law bearing upon the question of damages I shall state to you at length in that part of my charge wherein I refer to the facts. For the present, however, I will state these two propositions: That if the matter is found by you to be libelous the plaintiff would be entitled, first, to compensation for the injury which he has suffered; and next, if you should find from the evidence in the case that the libel was published with the express intent to defame and harm him in his character and reputation, or, to use the language of his complaint in this case, if you should find that the publication was made wickedly, maliciously, and wrongfully, intending to injure him then you have a right to award him such additional damages as you may think the circumstances of the case justify by way of example and punishment for such wanton abuse of the liberty of publication.

In a case such as this there may be two defenses, one that the matter published is true, and therefore not libelous. This defense is called justification, and when it is intended to be relied upon by a defendant it must be pleaded specially, so that the plaintiff may know when he comes into court that he must establish the untruth of the charges. Second, another defense which may be set up is a denial of the publication of the alleged libel. This defense involves either that the defendants did not publish the matter complained of, or that the matter complained of was not libelous in that it did not defame the plaintiff in the manner and form alleged. In the present case the defendants have entered a plea of "not guilty," and this plea therefore confines this defense, upon the question of libel or not, to whether the printed matter was defamatory of the character of the plaintiff, as alleged by him, and was published by the defendants. In other words, the defendants do not plead, by way of defense, that the libelous matter is true, but that they did not publish the libelous matter. This brings up the question of the tendency and meaning of the publication itself.

The plaintiff, in his statement filed, has not only set out the language of the publication, but has averred also the meaning and effect of the words as published, or, in technical legal language, he has accompanied the words with an innuendo; the innuendoes contain plaintiff's allegation of the effect of the publication whereby it is alleged to be libelous. It is this that the defendants' plea denies, that is, it denies that a libel, as alleged by the plaintiff, was published by them, and does not assert that the words with their innuendoes were true.

Evidence has been introduced by the defendants tending to establish the truth of some of the facts contained in the entire article as published in the paper, but only with the avowed purpose, as stated by counsel, of mitigating the damages which you should give the plaintiff if you should find the article to be libelous. Such evidence could, under the plea, only have been admitted for this purpose, and as I shall explain to you later in my charge, when you come to consider it, you will regard it only to the extent limited by the purpose for which it has been offered.

[Where a defendant, charged with libel, justifies the publication by pleading its truth, such a defense, if not established, may be considered by the jury as a reason for imposing additional damages for the persistence in asserting as true that which is failed to be proved.] . . .

The plaintiff in this case has offered in evidence the newspapers which contain the alleged libel, and he has in his pleading set out the particular parts of the publication which he says are untruthful, injurious, and libelous, and I will read these to you first without the innuendoes, and then with the innuendoes which are contained in his declaration. Let me say that I do not intend to go fully into all the facts in this case. I do not think it is called for. Nevertheless, I wish to leave nothing of substance uncovered by my charge, for I do not wish that any one may be able to complain justly that the court has not treated with judicial fairness and fullness every proper matter in the cause.

The libelous matter alleged in the declaration or statement of the plaintiff is as follows: "The dandy Mayor skips. Col. William B. Smith shakes Philadelphia dust from his feet. A sudden flight to the West. His legacy of bogus checks protested notes, and bad debts. Escaping prosecution. The gallant colonel is at last overwhelmed by his financial irregularities and dares not wait to meet the issue. Overwhelmed with debt, ex-Mayor William B. Smith suddenly shook the dust of Philadelphia from his feet this week and started West, leaving behind a legacy of bogus checks, protested notes, and broken contracts. This time the gallant colonel left for good. It was on Wednesday that his ill-omened star westward took its way." Those are the libelous words contained in the article first published complained of by this plaintiff. In his declaration he avers that those words conveyed to those who read them, and reasonably might convey, a certain meaning injurious to his character, and he has set out what he says those meanings were in the paper filed by him in the cause. Now let me read you the same words with the allegation of what they mean, and what effect they had upon those who read them: "The dandy Mayor skips." "Thereby," says the plaintiff, "meaning that the said plaintiff was a fugitive from justice, and had left the city of Philadelphia for the purpose of escaping prosecution for crimes and offenses committed by him against the law." "Col. William B. Smith shakes Philadelphia dust from his feet. A...

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