
    Godshalk v. Metzgar.
    In an action on the case for libel, the evidence showed that a newspaper published an account of a case pending before a justice of the peace in which the following language was used: “ Jacob Metzgar, a witness in the case and son-in-law of Mrs. Leidig, whose idea of an oath appeared in yesterday’s ‘ Times,’ was arrested after his evidence was taken, on Thursday afternoon, by Sheriff Bowers, of Lehigh County, at the instance of John D. Stiles, attorney for Mrs. Leidig, on account of his criminal evidence in the Leidig case. In default of the necessary bail, he was committed to the Lehigh County jail.” It further appeared by the evidence that Metzgar had not been arrested, nor had he been committed to jail for want of bail. Held, that the publication was libellous, that it was not privileged, and that the plaintiff was entitled to a verdict.
    In the above case, the court properly refused the following point: “ If the jury believe that the mistake, in the published article, as to the plaintiff being arrested and put in jail in default of bail, arose in the ordinary course of newspaper publication, that it was based on reasonable or probable cause, made from proper motives and without malice, the verdict must be for the defendants.”
    March 15, 1889.
    Error, No. 279, Jan. T. 1887, to C. P. Northampton Co., to review a judgment on a verdict for plaintiff: in an action on the case for libei by Jacob Metzgar against D. J. Godshalk et ah, proprietors of the “Bethlehem Daily Times,” at Feb. T. 1884, No. 26. Sterrett and Green, JJ., absent.
    On Jan. 3, 1884, the “Bethlehem Daily Times” published the following item:
    “An important case before Justice Anstett. For several days testimony has been taken in a case pending between John Leidig and Susannah Leidig (now Weil). The parties were married thirty years ago; had eleven children, seven of whom are now living. The parties lived as happily as could be expected, being hard-working, honest people. About a year ago troubles arose and the wife made serious complaints against her husband, and finally she applied for divorce, which was granted, the wife- retaining the minor children. David, a son 16 years old, at that time lived with his mother, and went to work at the Bethlehem rolling mill. The mother claimed David’s wages; the father objected; the wife applied to the court for the wages, and for herself to be appointed guardian. It is alleged Mrs. Leidig, and her daughter, married to Isaiah Smith, induced David to leave his mother and live with them. At present there is some feeling between the daughters and their mother. The mother claims that she has the right to the control, custody and earnings of David. It is claimed by the other side that she is entitled to neither. It is evident that the wife had good grounds for divorce, which is manifest from the facts proven. The testimony is not concluded and from the meagre facts we are unable to give a full report. J. D. Stiles for Mrs. Leidig, now Weil; R. L. Cope for Leidig.”
    On Jan. 4, the following:
    “ The Leidig case before Justice Anstett reported yesterday, has been continued to the 16th of this month. Some fifty pages of testimony have already been taken and the further the case progresses the more interesting it becomes. Yesterday afternoon a witness was asked his idea of an oath and where he got it. Answer: I read it in books, not in almanacs, nor newspapers, but in Bibles, Testaments.” Question : “ What did you read in Bibles and Testaments that it was ?” Witness: “ Why I read in them books that when a man was under oath or anything like that, it was a sin not to tell the truth.” Question: “ "What part of the Bible did you read these words ?” Witness: “ I read them words in the Bible and Testament both, that when a man was under oath or something— I have given you now my idea of an oath. I guess I have no other idea about it.”
    On Jan. 5, the following:
    “ The Leidig case before Justice Anstett, and which has been continued to January 16, is growing more interesting every day. Jacob Metzgar, a witness in the case and son-in-law of Mrs. Leidig, whose idea of an oath appeared in yesterday’s ‘ Times,’ was arrested after his evidence was taken, on Thursday afternoon, by Sheriff Bower of Lehigh County, at the instance of J. D. Stiles, attorney for Mrs. Leidig, on account of his criminal evidence in the Leidig case. In default of the necessary bail, he was committed to the Lehigh County Jail.”
    On Jan. 14, the following:
    “ The ‘ Daily Times ’ sued for libel. On Saturday, D. J. Oodshalk and Joseph A. Weaver, proprietors, and Horace A. Saylor, reporter of the £ Daily Times,’ were arrested by deputy Sheriff A. W. Bitter, of Easton, on a capias filed in the Northampton county court by the attorney of Jacob- Metzgar, who alleges libel against the above named persons in the following local news item, which appeared in the ‘ Daily Times ’ of the 5th inst.: [quoting it, as above]. The plaintiff claims $1,000 damages. The defendants gave bail in $1,000, with Justice T. O. Fradeneck as surety, to appear at the February term of court. It may, with propriety, be stated here that the statement that Metzgar was arrested and sent to jail was given on the authority of Justice Anstett, who seems to have been mistaken, Metzgar not having been arrested, and of course was not in jail. It was intended to make a correction of the misstatement, but by inadvertence this was not done when it should have been. Malice is certainly not one of the elements of this case against the £ Times.’ ”
    The article declared upon was that of Jan. 5th. Defendants pleaded not guilty.
    At the trail, plaintiff proved the publication of Jan. 4th, 5th, and 14th. Justice Anstett testified in chief that plaintiff had not been arrested, etc. On cross-examination, he testified that he had given information to the reporter that Stiles had said he would have Metzgar arrested, and that he, Anstett, had shown the depositions in the case to the reporter, and the reporter had read them.
    Anstett was then asked the following question: “ Now, without stating what the testimony was — for I do not care to know —state whether the testimony which you say Mr. Saylor read there, was what is called criminal evidence.” Objected to as not cross-examination. Objection sustained and exception. [9]
    When Isaac Smith, one of plaintiff’s witnesses, who had testified in chief that Jacob Metzgar testified before the magistrate, was on the stand, defendant proposed to ask him, on cross-examination, whether, at the hearing before ’Squire Anstett, Metzgar testified or gave any criminal evidence against Mrs. Leidig in that case. 'bjected to as incompetent, irrelevant and not cross-examination. Objection sustained and exception.
    Defendant then proposed to ask the witness what the substance of Metzgar’s testimony was in the case of Leidig v. Leidig, at the hearing before ’Squire Anstett. Objection same as before. Objection sustained and exception. [8]
    The record of the case of Susannah Weil v. Jacob Metzgar, action of slander, in Lehigh county, was offered in evidence for the purpose of showing that the mistake, if any, made in the publication, was merely a mistake as to form of action commenced by J. D. Stiles, as attorney for Mrs. Leidig (or Weil), and not a mistake of substance, and to show that, prior to the beginning of this suit, Jacob Metzgar, the plaintiff here, had been sued in the manner as stated in the newspaper item complained of, on account of the criminal evidence given by him in the Leidig case. It is offered not in justification, but to show probable cause. Objected to by the plaintiff so far as it is an offer to show that Mr. Metzgar, the plaintiff here, had been sued on account of the criminal evidence in the Leidig case, because the record does not show anything of the kind. For the purpose of showing what the real facts are in this case, the offer is not objected to, that is, that he had been sued in Lehigh county. Objection as made is sustained and exception. [10]
    Defendants offered in evidence the first newspaper article as contained in the issue of the “ Bethlehem Daily Times ” of Jan. 3,-1884, which was testified to by Horace A. Saylor as published in the newspaper but not written by him. Objected to as incompetent and irrelevant. Objection sustained and exception. [11]
    The court refused at the previous trial to receive in evidence the depositions of Jacob Metzgar, in the petition of David Leidig in the orphans’ court of Northampton county or to let them be offered unless they were offered in writing, said depositions being not on file, and in possession of the plaintiff’s attorney. [12]
    The plaintiff presented these points:
    “ 1. Under all the evidence in the case, the verdict must be for plaintiff. Ans. Affirmed.” [1]
    “2. The publication set out in the declaration, if untrue, is defamatory, and, if published without excuse, the plaintiff is entitled to recover punitive as well as actual damages. Ans. Affirmed.” [2]
    The defendant presented the following points:
    “ 1. Under all the evidence, the verdict must be for defendants. Ans. Refused.” [3]
    “ 2. If the jury believe that the mistake in the article of Jan-nary 5, 1884, as to plaintiff being arrested and put in jail in default of bail, arose in the ordinary course of newspaper publication, that it was based on reasonable or probable cause, made from proper motives and without malice, the verdict must be in favor of defendants. Ans. Refused.” [4]
    “ 3. Proceedings before the court of common pleas of Lehigh county, supplemented by depositions before Justice Anstett, like the case of Leidig v. Leidig, and the case of Susannah Weil v. Jacob Metzgar, No. 85, January T., 1884, are privileged in the sense that the information is proper for publication, and that no presumption of malice arises from the' publication inadvertently of an error as to the form in which process was commenced, whether by summons or capias, by Sannah Weil against Jacob Metzgar, and malice in fact must be proved before plaintiff can recover. Ans. Refused.” [5]
    The following charge was delivered by Schuyler, P. J.:
    “ This is an action to recover damages for the publication of an alleged libel in the ‘ Bethlehem Daily Times ’ newspaper. The defendants admit the publication of the article, charged as libellous, so that you will have no difficulty on that score.
    
      “ The first question is, whether or not the publication is libellous as it is charged to be in the declaration. This is a question of law for the court, and I answer it by saying to you that [it is a libellous publication.] [6]
    The second question is, whether or not the publication is a privileged publication. This, again, is a question of law for the court, and [I say to you that it is not a privileged publication.] [7]
    [“ The only question that remains is a question of damages, and that is a question for you exclusively. In determining that question you will inquire whether or not the publication was made negligently or maliciously, in other words, whether it was made without excuse. If it was made negligently or maliciously, or without excuse, then yon may give what are called in law punitive damages for the publication. If, however, you find that the publication was not made negligently or maliciously, and that the defendants had an excuse for making it, then you can only give what are called in law compensatory damages, that is, such damages as will make the plaintiff whole for the injury he has sustained.”] [13]
    Yerdict and judgment for plaintiff for $125.
    
      The assignments of error specified, 1, 2, the answers to plaintiff’s points, quoting them; 3-5, the answers to defendants’ points, quoting them; 6, I, 13, the portions of the charge within brackets, quoting them ; 8-12, the rulings on the evidence, quoting the bill of exceptions in full.
    
      W. E. Doster, for plaintiffs in error.
    The publication does not impute or insinuate guilt and is not libellous per se.
    If a newspaper, without malice, and after investigation, aims to publish only a fair and true account of an unlawful occurrence, and does publish substantially such an account, but is honestly mistaken iu one or two statements, it is not liable to a civil action for libel. Urben v. Pittsburgh Times, 1 Mona. 135.
    The onus of proving malice lies on the plaintiff; the defendant cannot be called on to prove he did not act maliciously until some evidence of malice, more than a mere scintilla, has been adduced by the plaintiff. Odgers on Slander and Libel, 205, ed. 1887, citing: Taylor v. Hawkins, 16 Q. B. 321, 15 Jur. 746, 20 L. J. Q. B. 313; Cooke v. Wildes, 5 E. & B. 340, 24 L. J. Q. B. 367, 1 Jur. N. S. 610, 3 C. L. R., Spottiswoode, 1090.
    If the evidence adduced is equally consistent with either the existence or non-existence of malice, the judge should stop the case; for there is nothing to rebut the presumption which has arisen in favor of the defendant from the privileged occasion. Odgers, 205, citing: Somerville v. Hawkins, 10 C. B. 590, 20 L. J. C. P. 131, 15 Jur. 450; Harris v. Thompson, 13 C. B. 333; Taylor v. Hawkins, 16 Q. B. 308, 20 L. J. Q. B. 313, 15 Jur. 746.
    That the words are strong is no evidence of malice, if on defendants’ view of the facts strong words are justified. Odgers, 205; Spill v. Maule, L. R. 4 Ex. 232; 38 L. J. Ex. 138; 17 W. R. 805, 20 L. T. 675.
    That the statement is now admitted or proved to be untrue is no evidence that it was made maliciously. Caufield v. Whitworth, 16 W. R. 936, 18 L. T. 527. If defendant is in a position to prove the truth of his statement, he has no need of privilege: the only use of privilege is in cases where the truth of the statement cannot be proved. Per Lord Coleridge, C. J., in Howe v. Jones, 1 Times L. R. 462. Also, so in America, see Lewis & Herrick v. Chapman, 16 N. Y. 369; Vanderzee v. McGregor, 12 Wend. 546; Fowles v. Bowen, 30 N. Y. 26. A mere mistake made through excusable inadvertence cannot in any case be evidence of malice. Odgers, 205, citing: Harrison v. Bush, 5 E. & B. 350; Brett v. Watson, 20 W. R. 723; Kershaw v. Bailey, 1 Ex. 743; Scarll v. Dixon, 4 F. & F. 250; Pater v. Baker, 3 C. B. 831; Thompson v. Dashwood, 11 Q. B. Div. 43.
    A communication to be privileged must be made on a proper occasion, from a proper motive, and based on probable cause; when so made in good faith, the law does not imply malice from the communication itself, as in the ordinary case of libel, but actual malice must be proved. Briggs v. Garrett, 111 Pa. 404; Press Company v. Stewart, 119 Pa. 585.
    The presumption of good faith and want of malice, when the communication is privileged, is not rebutted by proof that the statements are untrue; the plaintiff must show that defendants knew, or had reason to believe they were untrue. Hastings v. Lusk, 22 Wend. 410; Ormsby v. Douglas, 37 N. Y. 477; Remington v. Congdon, 2 Pick. 311; Van Wyck v. Aspinwall, 17 N. Y. 193; Thorn v. Blanchard, 5 Johns. 508; Liddle v. Hosgerd, 2 Bosw. 541; Gray v. Pentland, 4 S. & R. 420; Flitcraft v. Jinks, 3 Wh. 158; Pittcock v. O’Neill, 63 Pa. 253; Neeb v. Hope, 111 Pa. 145; Briggs v. Garret, supra; Press Co. v. Stewart, supra.
    In imputation of crime, there must be certainty as to the person defamed and as to the sort of crime imputed. Odgers, 96-98, and cases cited.
    
      Robt. L. Cope for defendant in error.
    The publication was libellous. Pittock and Mills v. O’Neil, 63 Pa. 253; Odgers on Libel and Slander, Blackstone ed., p. 15; Townsend on Libel, § 286; Green v. Telfair, 20 Barb. 11.
    The publication was not privileged. The only ground upon which it could be claimed to be such, is, that it purports to be a report of a judicial proceeding. The report must be an impartial and accurate account of what really occurred at the trial; else no privilege will attach. Odgers, 192.
    Even comments, which accompany a correct account, may deprive it of its privilege. Pittock v. O’Neill, supra.
    That the reporter was misinformed, and actually believed what he reported can only be given in evidence in mitigation of damages and not in bar of the action. Chapman v. Calder, 14 Pa. 365.
    "Without the plea of justification, it is incompetent to a defendant to give evidence of particular facts which induced him to believe the charge true at the time it was made. Chapman v. Calder, supra.
    In Regensperger v. Kiefer, 20 W. N. C. 97, the libel complained of was very similar to the one here, and it was held that punitive as well as actual damages might be allowed by the jury.
    Nor is the communication privileged on the ground of public interest. Neither the defendants nor the public were interested in the subject-matter of the libel. Odgers, 180, 193.
    In Urben v. Pittsburgh Times, the report was substantially true, and the truth was given in evidence under the plea of not guilty and justification.
    March 25, 1889.
   Per Curiam,

We think the learned judge below was entirely right in holding that the publication in question was a libel. It was not in any sense a privileged communication. It was not a report of a judicial proceeding. It consisted merely of some comments by a reporter upon a case pending before a justice of the peace, in the course of which he said: “ Jacob kletzgar (meaning the plaintiff) a witness in the case and son-in-law of Mrs. Leidig, whose idea of an oath appeared in yesterday’s £ Times,’ was arrested after his evidence was taken, on Thursday afternoon, by Sheriff Bowers, of Lehigh county, at the instance of J ohn D. Stiles, attorney for Mrs. Leidig, on account of his criminal evidence in the Leidig case. In default of the necessary bail he was committed to the Lehigh county jail.” It appeared that Mr. Metzgar had not been arrested, nor had he been committed to jail for want of bail. The reporter may have written this paragraph for the mere purpose of giving spice to his paper, or from other motive. It was urged that the article was not libellous because it imputed no particular crime to the plaintiff. We are unable to see the force of this. It is true, no offence was named, but it is idle to say that .a statement that a man has been arrested and committed to the county prison in default of bail does not mean anything. It means a great deal and is the more damaging from what it leaves unsaid. It could not but convey the impression that the plaintiff had committed some crime, and its very vagueness left the charge open for anything the imagination of the reader might supply.

It was urged, further, that the plaintiff had no character to lose, and therefore it could not be injured. That was for the jury and they have found it was worth at least $125.

Judgment affirmed.  