Oles v. Pittsburg Times

2 Pa. Super. 130, 1896 Pa. Super. LEXIS 25

• Court: Superior Court of Pennsylvania
• Decided: July 16, 1896
• Docket: Appeal, No. 31
• Status: Published

Opinion

Opinion by

Rice, P. J.,

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 was justifiably made: Pittock v. O’Neill, 63 Pa. 253; Barr v. Moore, 87 Pa. 385; Neeb v. Hope, 111 Pa. 145; Collins v. Dispatch Co., 152 Pa. 187. By this definition the alleged libelous matter must “ tend ” or, as it is sometimes stated, “be calculated” to injure. Were it not for the testimony in this case we might hesitate to believe that the article in question could, by any possibility, tend or be calculated to make the plaintiff infamous or odious, for the reason that it seems incredible that a belief in witchcraft should be entertained by any one in this age. But the fact being established that such belief is still prevalent, to some extent at least, amongst that class of people to which the plaintiff belonged, a publication like the one in question would be quite as injurious in a legal sense as if it had charged, in the same way, any common dereliction. The defamatory accusation need not be one which every one would credit. We cannot state what we mean any more clearly than by quoting from the charge of the learned judge who presided at the trial: “ Now, when you come to that you have got to take the world as you find it, and people who publish newspapers have got to take the people as they know them, or are bound to know them to be. If this was an article read in some society of learned men who did not believe in such things as witchcraft, or that there were such things as witches, probably it would have no effect at all; they would not believe it, and therefore it would do no harm. But you have heard the testimony, and you have your own knowledge on that point — a knowledge of the superstitions of the masses of the people, and if with that knowledge you are led to believe that being called a witch would be calculated to injure the reputation of another and injure his standing in society, then it becomes libelous and becomes the foundation for damages.” This was a correct and plain statement of the law applicable to the case; for, strange as it may seem, there was ample evidence to warrant the jury hi finding specially the following facts, if they had been requested so to do. First. There is and was a considerable number of persons living in the community where the plaintiff resides, and where the newspaper containing this alleged defamatory article had a large circulation, who believe in witchcraft. Second. The publication had a tendency to produce and assisted in producing in the minds of persons entertaining such belief the further belief that Irena Oles, the plaintiff, was a witch, and to produce in the minds of some such the belief that the malady from which the Newman boy was suffering was a possession of devils for which the plaintiff was responsible. Third. In consequence of this belief she was subjected to insults and assaults, was hooted at, called witch, and stoned upon the streets, was shunned by her neighbors, and suffered loss in her business and occupation. There being testimony that these things occurred afterwards and not before, it was for the jury to say how far the publication had a tendency to produce and did produce the false and injurious opinion entertained of her. Whether or not the defendant actually intended to accomplish this result is not the question. A man is supposed to intend the natural consequence of his own intentional act; therefore it would be no defense for the writer to say that he did not suppose that the assertions made by the Newmans and their neighbors would be credited by others. It is not claimed, and in the light of the evidence tending to establish the foregoing facts, it could not be seriously argued, that the court should have instructed the jury that the publication was not libelous. It was none the less libelous because it was a mere recital of what was believed and asserted by others.

Where there is no confidential relation, no existing duty, and no common interest, every repetition of a slander is a wilful publication of it: Odgers on Libel and Slander, *162, Bl. ed. 124; 13 Am. & Eng. Ency. of Law, 374.

In Collins v. Dispatch Co., 152 Pa. 187, the newspaper did not assert that the plaintiff had been unduly intimate with the woman referred to, but only that complaints had been made to a public department that such was the case, and yet it was not suggested that the article was not libelous. But it is unnecessary to multiply authorities upon so plain a proposition. Indeed it is not questioned in the assignments of error or in the argument.

Was it a defense to prove that the parents of the Newman boy and their neighbors said and believed that the plaintiff was a witch, and that his malady .was caused by her malign influence ? This is the only question fairly raised by the assignments of error. The truth of defamatory words is a complete defense to a civil action of libel or slander. This is the generally accepted rule, although neither the justice nor the expediency of it is universally conceded. It is the rule in Pennsylvania: Stewart v. Press Co., 119 Pa. 584-602. But the onus of proving the words are true lies on the defendant, and in general the whole libel must be proved true, not a part merely. If by this is meant that the defendant need only^to prove the truth of what he asserts in the writing to be true, then it must be conceded that the defendant made out a good defense. The reporter asserted nothing as to the truth of what was said and believed by the Newmans and their neighbors, but, having stated what they said and believed and the facts which seem to have been influential in their minds, left the public to draw their own conclusions. But if the defendant must prove the truth of the defamatory charges and assertions to which he has given greater currency by repetition, then a good defense was not made out. The latter is the true rule and is the only one consistent with the other well established rule that one who, without the excuse of “ privilege,” repeats a defamatory accusation is deemed to have published it, and is liable to action although he gives the name of the author. The fourth resolution iñ Lord Northampton’s case, 12 Rep. 134, which runs as follows: “In a private action for slander of common person if J. S. publish that he hath heard J. A. say that J. G. was a traitor or a thief, in an action on the case, if the truth be such he may justify,” has been discarded in England and by most of the courts in this country as neither authoritative nor sound in principle. It is now generally held that in the case supposed J. S. must prove that J. G. was a traitor or a thief in order to make a complete defense: Odgers on L. & S. * 174; Townshend on S. & L. secs. 210, 211; 13 Am. & Eng. Ency. of Law, 376, 395; 2 Addison on Torts (Wood’s ed.), sec. 1146; Pollock on Torts, *218, 219. We have not undertaken to collect the cases upon the subject, but these are a few leading ones where the doctrine is held substantially as we have stated it: McPherson v. Daniels, 10 B. & C. 272-273, (21 E. C. L. R.); Bennett v. Bennett, 6 C. & P. *588; Watkin v. Hall, L. R. 3 Q. B. Cases, 396; Kenney v. McLaughlin, 5 Gray, 3; Stevens v. Hartwell, 11 Metc. 542; Hawes v. Welling, 7 Oh. 253; Dole v. Lyon, 10 Johns. R. *447; Hotchkiss v. Oliphant, 2 Hill, 510.

It is to be borne in mind that the material part of the cause of action in libel is not the writing, but the publication of the libel. Upon this principle it was held very early in the history of this commonwealth that in a civil action for libel (it was suggested that there might possibly be a distinction between libel and slander) against a printer, his inserting the name of the author was no justification, though it might go in mitigation of damages: Runkle v. Myer, 3 Y. 518. We are not aware that this ruling or the doctrine on which it was based has been questioned in any later decision of the Supreme Court. The justice of the rule, .and the reasons in support of it are so clearly stated in the opinion of Littledale, J., in McPherson v. Daniels, supra, that we feel justified in making this extended quotation therefrom. He says: “The truth is an answer to the action, not because it negatives the charge of malice (for a person may wrongfully or maliciously utter slanderous matter, though true, and thereby subject himself to an indictment) but because it shows that the plaintiff is not entitled to recover damages. For the law will not permit a man to recover damages in respect of an injury to a character which he either does not, or ought not to possess. Now a defendant by showing that he stated at the time when he published slanderous statements of a plaintiff that he heard it from a third person, does not negative the charge of malice, for a man may wrongfully and maliciously repeat that which another may have uttered upon a justifiable occasion. Such a plea does not show that the plaintiff has not sustained or is not entitled in a court of law to recover damages. As great an injury may accrue from the wrongful repetition as from the first publication of slander; the first utterer may have been a person insane or of bad character. The person who repeats it gives greater weight to the slander. A party is not the less entitled to recover damages in a court of law for injurious matter published concerning him, because another person previously published it.”

We have thus far been speaking of publications for which-there is no legal excuse. In his general charge, as well as in his answer to the plaintiff’s fourth point, the learned judge instructed the jury that the publication was not privileged. As these instructions are not assigned for error, we might properly omit to say anything with regard to that matter, but in view of the suggestion made in the appellant’s history of the case that the article on its face is but a plain recital of events which actually transpired in this community, and in which the public had an interest, it will not be out of place to add a few words upon that point. It is more than a mere recital of events; it is also a substantially correct report of what the Newmans and their neighbors believed and said of and concerning the plaintiff. Complaint is made not so much of the incorrectness of the report as of the false and defamatory character of the matter reported. The publication was not made upon any occasion that rendered a repetition thereof privileged upon the grounds of public policy. It is to be judged by itself and not in connection with some other transaction of which possibly it might have formed a necessary part, and of which as a whole it might have been to the interest of the public to be informed. Thus judged it was not a matter in which the public had any interest except that which arises out of idle curiosity and vitiated appetite for the sensational. The plaintiff neither held nor sought a public position, and stood in no such relation to the public as to make it important for them to know that the New-mans believed and said that she was a witch. No duty of perfect or imperfect obligation, legal, moral or social or otherwise, rested on the defendant to make that fact known to others. She was a harmless old woman whose livelihood depended upon the good will and good opinion of the people of the community in which she lived. Instead of the occasion being one which made the publication proper for public investigation and information, the very fact that a few superstitious persons entertained the false and unfounded belief that she was a witch ought to have shielded her against a more extended circulation of the injurious rumor by those who must have known that it was not founded on truth.

We are of the opinion that the court correctly held that proof that the parents of the Newman boy and their neighbors said and believed that the plaintiff was a witch, and that his malady was due to her malign influence, was not such proof of the truth of the publication as would constitute a defense.

The specifications of error are overruled and the judgment is affirmed.