Neeb v. Hope

2 A. 568, 111 Pa. 145, 1886 Pa. LEXIS 493

• Court: Supreme Court of Pennsylvania
• Decided: January 4, 1886
• Status: Published

Opinion

Mr. Justice Trunkey

delivered the opinion of the court,January 4th, 1886.

Any malicious publication, written, printed or painted, which by words or signs tends to expose a person to contempt, ridicule, hatred or degradation of character, is a libel; and the' person libeled may recover damages, unless it be shown that. the publication was true, or that it was justifiably made: Barr v. Moore, 87 Pa. St., 385.

Malice is said to be essential to an action for libel, but it is malice in a special and technical sense, which exists in the absence of lawful excuse, and where there may be no spite or ill-will, or disposition to injure others. Every publication having the other qualities of a libel, if wilful and unprivileged, is in law malicious. The publication of words actionable in themselves, is sufficient evidence of legal malice. Legal malice exists where a wrongful act is done intentionally. The proprietor of a newspaper, whether a natural person or a corporation, is liable for a libel contained in the paper, though without actual knowledge of the libel until after the publication. Where the defendant published words which injured the plaintiff’s reputation, he must be taken to have intended the consequences naturally resulting therefrom, and the question whether the defendant acted maliciously or not, should not be left to the jury, unless the occasion be privileged: Barr v. Moore, supra; Odgers on Libel, 264-5.

At the trial of this action it appears that the court and parties agreed that the defendants had a right to make inquiries respecting plaintiff’s official conduct, to make reasonable comment and fair criticism upon it, and that the matter published, if true, was proper for public information or investigation. The plaintiff’s point indicates his contention that before .publishing the alleged facts the defendants omitted reasonable Icare and diligence to ascertain their truth; and the defendants’ fourth point avers, that if the publication was a fair statement of what was communicated to their reporter by the chief clerk of the county commissioners, and that if it was published in good faith and without malice, the plaintiff cannot recover. The court instructed the jury, that if the defendants made reasonable and diligent inquiry, using ordinary care to get the facts, and then published them with free comments, they are not liable; and if they exercised “such care, ordinary care, as was proper under the circumstances to justify this article, then the law says it was in the nature of a privileged communication, and would be a defence.” But if such care was not used the defendants are liable, provided the jury find the article is libelous; and even if ordinary care was used, if the article went beyond the statement of facts, and charged the defendants with the crime of larceny, it was libelous.

In view of the evidence, said instructions were favorable to defendants. The plaintiff was a private citizen, neither in office nor a candidate for office, but the article related to what he had done as a public officer. Inquiry was only made of a clerk who had no connection with the coroner’s office, and who was not a lawyer. It is proved that the alleged default in turning over to the proper officers the money and effects which remained in his hands at the end of his official term was false, and now the defendants do not pretend that the statements of fact or of law are true and correct. If, indeed, the publication was strictly privileged, and there was probable cause for the making of it, the action cannot be sustained; and if there were not probable cause the plaintiff could not recover in absence of proof of actual malice — malice signifying ill-will by the defendants towards the plaintiff, or a reckless disregard of his right of reputation. “ Cases of privileged communications are to be treated in the same manner as actions for malicious prosecution.....In all cases of libel, prima facie excusable on account of the occasion of uttering or publishing it, all the facts and circumstances of the case may be given in evidence by the defendant, to show probable ground and to rebut the idea of malice:" Chapman v. Calder, 14 Pa. St., 365. If the jury found that the publication charged the plaintiff with larceny, it is not strange that they failed to find that the defendants had used due care and diligence to ascertain the truth of the charge. Probable cause that would justify such publication would justify a prosecution for the alleged crime. The clerk stated no facts within his knowledge to warrant belief that the plaintiff had embezzled or stolen the money and goods which came into his hands as coroner; and he was not qualified to give professional advice or a legal opinion upon the facts he stated. He simply stated that Hope had not made a return of the effects which had come into his hands as coroner to the commissioners. That was no cause for belief that the ex-coroner was guilty of a criminal offence. Nor was it within the bounds of fair comment and criticism to misstate the law, and aver “that any violation thereof was an offence of larceny,” and charge that “ Coroner Hope has neglected to comply with the provisions aforesaid,” and “ exposes himself to a prosecution for larceny.”

The defendants contend that if the publication was made in good faith and without malice, they are not liable. This would be so had the article been kept within proper limits. An occasion of privilege will not justify false and groundless imputations of wicked motives or of crime. The conduct of public officers is open to public criticism, and it is for the interest of society that their acts may be freely published with fitting comments or strictures. But a line must be drawn between hostile criticism upon public conduct and the imputation of bad motives, or of criminal offences, where such motives or offences cannot be justly and reasonably inferred from the conduct. A man has no right to impute to another whose conduct is open to ridicule or disapprobation, base, sordid or wicked motives, unless there is so much ground for the imputation that a jury shall find, not only that he had an honest belief in the truth of his statements, but that this belief was not without foundation. Where the public conduct of a public man is open to animadversion, and the writer who is commenting upon it makes imputations on his motives which arise fairly and legitimately out of Iris conduct, so that a jury shall say that the criticism was not only honest, but well founded, an action is not maintainable. If a public writer fancies that the conduct of a public man is open to the suspicion of dishonesty, he is not therefore justified in assailing his character as dishonest, or charging him with a criminal offence: Campbell v. Spottiswoode, 3 Best & S., 769. “It cannot be claimed that there is any privilege in journalism which would excuse a newspaper, when any other publication of libels would not be excused. Whatever functions the journalist performs are assumed and laid down at his will, and performed under the same responsibilities attaching to other persons. Allowing the most liberal rule as to the liability of persons in public employment to criticism for their conduct in which the public are interested, there certainly has never been any rule which subjected persons, public or private, to be falsely traduced. The nearest approach to this license is when the vilified person is a candidate for an elective office, or addresses the public in open public meetings for public purposes. But even in such cases we shall not find support for any doctrine which will subject him without remedy to every species of malevolent attack:" Foster v. Scripps, 39 Mich., 376.

It is a matter of law for the court to determine whether the occasion of writing or speaking criminatory language, which would otherwise be actionable, repels the inference of malice, constituting what is called a privileged communication ; and if there is no intrinsic or extrinsic evidence of malice, it is the duty of the court to direct a nonsuit or verdict for the defendant. If the communication contains expressions which exceed the limits of privilege, such expressions are evidence of malice, and the case shall be given to the jury: Cooke v. Wildes, 5 El. & Bl., 328; Hamilton v. Eno, 81 N. Y., 116. Falsehood and the absence of probable cause will amount to proof of malice: White v. Nicholls, 3 How., 266.

.No request was made for instruction to the jury that the plaintiff must prove malice to maintain his action. The evidence thereof was ample for submission. The instructions of the court, as already seen, were as fair for the defendants as they could justly claim, so far as related to the plaintiff’s right to recover. If the publication charged wicked motive or crime, unwarranted by the facts communicated to the reporter by the clerk of the county commissioners, the privilege was exceeded and the action would lie. Had the court said anything in reference to actual malice, the jury would have been instructed that they could find it from the falsehood of the charge and absence of probable cause.

That the court omitted the word malicious in defining libel was entirely harmless. The attempt to define it was in the portion of the charge that did not touch the question of privilege. If the writing held the plaintiff “ up to public contempt, ridicule or disgrace,” and was unprivileged, it was malicious, and the jury had no right to say otherwise. It was as unnecessary in such connection to use the word “malicious,” as it is to prove malice in a case of libel when there is no justification of the publishing.

None of the assignments set forth error of which the defendants can complain, except the first. By affirmance of the plaintiff's point the jury were instructed that in case of negligence by the defendants in making inquiry as to the truth of the charge, they “are liable in punitive damages, if the publication is found to be libelous, and the verdict should be for the plaintiff in such an amount of damages as the jury may deem just in the premises.” Aside from that, no instruction was given on the question of damages except what related to mitigation. Therefore, the jury must have understood that if the plaintiff was entitled to recover, the defendants should be punished. That the jury could properly give exemplary or punitive damages, if satisfied that the defendants wantonly or recklessly defamed the plaintiff, cannot be doubted ; but if the defendants had no actual malice, evidenced by wanton or reckless conduct, it was not a case for punitive damages. Compensation for the injury done to the plaintiff’s character is the legal measure of damages to which he is entitled. Hence the rule that a defendant may, if he can, in diminution of damages, prove the general bad character of the plaintiff at and before the time of the publication of the libel. It is for the jury, not the court, to determine whether the defendant shall pay exemplary damages, even when there is evidence of malice. Whenever the jury find that the defendant should pay smart money, they determine the amount, and it may be said to be added to the plaintiff’s real damages.

In Hamilton v. Eno, supra, the court refused a request, namely, “that unless the defendant was moved by actual malice, it was not a case for punitivb damages; and that the jury should give such damages as they thought the plaintiff had really borne.” The Court of Appeals held that the request asked too much when it sought to limit the jury to the actual damage of the plaintiff — merely what he had proved in precise figures — and the court was not bound to take the good part of the request from the bad, and to charge-the good. Although the first proposition in the request was sound, the whole was well refused because it contained an incorrect limit respecting the plaintiff's damages. In this case, had the word “ punitive ’’’been omitted from the plaintiff’s point, there would have been no error in its affirmance. Where the words are actionable in themselves the law requires no proof of actual injury to entitle the plaintiff to recover such amount as the jury may deem just, the only restriction being the power exercised by courts over verdicts.

Judgment reversed, and venire facias de novo awarded.