
    CHASE vs. SCRANTON.
    An unsupported plea of justification is evidence of actual malice, and goes in aggravation of damages even though joined with a plea of not guilty.
    Error to Common Pleas of Luzerne County, No. 112 January Term, 1883.
    
      The charge of the Court was as follows, per
    Elwell, P. J.
    Gentlemen of the Jury : — This is a civil action brought by W. W. Scranton', against Aaron A. Chase to recover damages for an alleged libel, injurious to his character. The law provides this mode as the only one for the redress of an individual wronged by a slander, or by a libel spoken or publishsd of him. You, gentlemen, of course, will decide this case-without bias or partiality, looking neither to the party upon the one side nor the other, regarding only such considerations as arise legitimately out of the evidence in the case. Libel is defined to be any written or printed publication of a person which charges him with an infamous crime, or with any other matter which renders him odious or ridiculous in the eyes of the community. Words spoken that are not perpetuated otherwise than in the memory of persons who hear them, must impute a crime to the party of whom they are spoken, or must be shown to be injurious to him in his business. Words written or printed and published, because of the fact of the facility with which they are perpetuated in the future, to be actionable are not confined to a charge of crime, but anything which is injurious to the character or which exposes parties to contempt or ridicule, whether it is by a direct charge or by pictures or painting or any other like means, is libel in law.
    The law provides that for the publication of a libel the Commonwealth may institute proceedings to punish it, because of its tendency to provoke a breach of the peace. The law also gives to the party injured his action at law. In order to be libel it must also be false and malicious. Every false publication of the character of which I have spoken is presumed to be malicious. If one asserts of another, as a fact, that which is untrue and which is injurious to his-character, he is considered prima facia, to be actuated by malice. Because the presumption is that one who harbors no ill will towards another will not publish and circulate abroad a statement that he has been guilty of offences against the law •or against society. When a publication is made which is of the kind spoken of it is actionable; the burden of proof is thrown upon the'writer to prove the truth of his allegation; and by his proof he must establish the charge as broadly as he made it.
    In the present case the plaintiff alleges that on the 12th day of August, 1878, the defendant being the editor and publisher of a paper in the city of Scranton, called the Daily Times, published an article which accused him of the crime of murder.
    [Now, gentlemen, if you are satisfied that the defendant was proven by the ex-Mayor of Scranton to be the editor and publisher of the Daily Times of that date, and that his agent or person in his- office sold and delivered to a person a copy of the paper published by him, which paper is here produced, then ' the fact is established of the publication. That is not denied and may be considered as established by the testimony.] (3rd error.)
    The first question which arises for your consideration is whether the article in question was of and concerning the plaintiff in this case. The plaintiff alleges in his declaration which is the specification placed upon record, that he being of good character and esteemed as a good and wrorthy citizen by all persons to whom he was known, was made the subject of a libel by the defendant; that the defendant wrote and published an article with the view of bringing him, the plaintiff, into contempt and rendering him liable to the pains and penalties for the crime therein imputed to him.
    In answer to this the defendant interposes, first, a plea of not guilty, which plea denies the publication; it also denies that it is of and concerning the plaintiff, and in effect puts the plaintiff upon proof of all matters alleged in the declaration. The defendant has also to the plea of not guilty added the plea of justification. [Thatplea, when the defendant relies upon it for his defense, admits the publication and avers the facts therein set forth, that the meaning attributed in the declaration to what was said is the proper meaning, and that the words written by him are true. This goes upon the record and remains as a perpetual evidence of the charge made against the plaintiff.] (4th error.)
    Now in reference to the sense in which words are to be understood when written or published of another, it is proper to state that they are not to be taken in their mildest sense. The jury are not to endeavor to see if there is not possibly some innocent meaning which can be attached to them, nor are they on the other hand to strain the meaning in order to come to the conclusion that the charge of criminality is made therein. Words published are to be taken in the sense in which they would be and are understood by ordinary persons. They are to be understood as you would understand any other matter which you would read. You are to endeavor to find out what is the point and matter alleged, and what is intended to be conveyed by the words used. They are intended to be read by the public, and are to be understood by jurors as the readers of the paper would understand them. In this case the whole article, which I will not take time to read to you, is to be taken into consideration by you. You will have the paper with you, and from it you will, in the first place, ascertain whether the plaintiff here was the party that is there spoken of, and then you will take the whole of the article together, and from it gather the meaning.
    [In the first part of the article it is charged that persons-were shot down; that they were shot down by pets of Bill Scranton, and that at a future time — some time after that — it was averred that for the purpose of getting rid of certain employees that they would be got rid of in the way and m anner they were got rid of in August. Now, you take the two matters together.] (5th error.) In the first place, was the charge that they were shot down by pets of the plaintiff intende 1 by the writer in any way to connect the plaintiff with the transaction in August ?' It is charged that he did get rid of men in August ? Does the charge impute to him the crime of murder because of those being murdered before? And that he would get rid of men as they were got rid of before ? If the articles imputes that those persons were got rid of by him . — if the charge as contained in the article imputes that — if any common reader would so understand it — then it was libelous — libelous without reference to the plea of justification libelous in itself. If in one part of the article he charges that, persons were shot down, and that the shooting down was: murder, and if the reference subsequently made in the article was to that mode of getting rid of men — that he got rid of them in that way — how would any person understand it ?• Gentlemen, if this article, reading it throughout, and applying your judgment to it as men of sense, does not impute to-Mr. Scranton any offence ; if it is altogether of other persons, and the coupling of his name in connection with it was not. intended to implicate him and does not implicate him at all; in the offence, why then, of course, it would not be libelous; it would not be of and concerning him. But if his name is. coupled with the shooting and getting rid of men, and implicates him in the shooting and killing of men, it is libelous.
    The fundamental law of the land gives the freest liberty to the public press. ' Persons may freely write and speak upon any subject as they see proper, being responsible for the abuse of this privilege. The same fundamental law guarantees the right of life, liberty and property, and reputation; and of these, reputation is the most sacred. Without'it all else is of little worth to men. Wealth without a reputation, without good standing in the community, is of little consequence to a man. Deprive him of his good character and he is no longer entitled to the respect of his fellow citizens. Deprive him of this and you deprive him of that which is of the most value to-him.
    There are certain cases in which publications are privileged. The public press have a right to discuss the acts and conduct, of public men — of those who are in office — and of the measures which they advocate, and of their conduct in their office, and in any criminal proceedings founded on publications of that character if the party can show that the publication was made by mistake, not maliciously, and tended for the public-good a conviction could not be sustained. The Supreme Court held that even those guarantees do not apply in civil actions brought by individuals in office. There the question is, first, is the publication such as is calculated to injure the ■ reputation of the party? If it is, the next question is, is it proved to be true ? If it is not then an action accrues to the party.
    I have been requested by the counsel for the plaintiff to -charge you upon these points, and there is substantially no evidence in the cause excepting the newspaper article the publication of it, and the fact that the defendant is the publisher, it is not necessary that I should occupy very much of your time in discussing the matters before you. The arguments have been largely to the court upon the effect of these pleas.
    The counsel for the plaintiff have requested the court to charge you as follows :
    [First — That an unsupported plea of justification is evidence of actual malice, and goes in aggravation of damages.
    We answer, that is correct. It goes in aggravation of dam- - &ges because of the perpetuation of the slander, and because ■of the fact that a party not only spreads the publication abroad in the country, but he spreads it upon the records as a perpetual memorial of his allegation.] (First error.)
    Plaintiff’s second written point is as follows :
    [Second — That the defendant having pleaded justification, he has admitted of record that he published the words charged in the declaration of and concerning the plaintiff; he avers that the same in the meaning charged in the declaration are true, and having failed to sustain his plea by proof of any kind it must be regarded by the jury as a republication of the libel and should be considered as evidence of actual malice.
    In answer to that point I say to you that the defendant having pleaded not guilty, it is incumbent upon the plaintiff to prove the publication by the defendant of the alleged libelous matter and that the same was of and concerning himself, •and also by the publication itself or otherwise, that it imputed directly or indirectly to the plaintiff an offence of an infamous character, or such conduct as would, if proved, render him odious. If the publication, in any view that can be taken of it, admits such a construction, the plea of justification is to be regarded by the jury as a republication of the libel .and should be considered as evidence of actual malic e and an aggravation of damages, such plea alleging that the words were true, and that the sense attributed to them in the declaration is that intended by the writer.] (Second error.)
    I am requested by the defendant’s counsel to charge you upon the following written legal points :
    First — That the jury must not only be satisfie d under all of the evidence that the publication complained of is a libel, but that the libel was of and concerning the plaintiff.
    That is affirmed. I have already said to you in the general charge that it must appear from the evidence of the case —from the publication itself — that the plaintiff was the’party intended, and that the charge as therein contained was intended to be made against him.
    Second — Under the evidence the jury can only look to the publication itself to determine whether the matter alleged to be libelous was published of and concerning the plaintiff.
    Third — The plea of justification standing with the plea of not guilty, and the plaintiff offering no other evidence than the publication itself that the alleged libel was of and concerning the plaintiff, the defendant submitting no evidence for the consideration of the jury, the plea of justification must he dismissed from the consideration of the jury, and cannot under the circumstances aid or assist the plaintiff if his evidence in the consideration of the jury fail to connect the plaintiff with the alleged libelous matter.
    I affirm that point. That if the evidence in the case em* braced in the publication fails to show that it was of and concerning the plaintiff, the plaintiff is not entitled to recover, because he must make out his case under the plea of not guilty in the first instance ; but if he shows it was of and con-. cerning him, and that the intention as therein shown was to charge him with this offence, then you may consider the plea of justification ; consider it as a reiteration of the charge ; consider it as affirming that — not only that the publication was made, but that the words as therein. laid are true, and that the writer intended to impute to the plaintiff the crime mentioned in the declaration.
    [Fourth — That under all of the evidence and pleadings in the case, the defendant is entitled to a verdict. '
    I refuse so to charge; because there are questions of fact for you which I now repeat: First, is the defendant the publisher of the paper? Second, in using the name in the article did he refer to the plaintiff? And taking the whole article, did it intend to charge the crime imputed in the declaration to him? Would it be so understood by the-public? If so, the plaintiff is entitled to recover. If not, if it is innocent and does not apply to him, then the defendant is entitled to a ver - diet.] (Sixth error.)
    If you find that the plaintiff, under the evidence, is entitled to recover, the question for your consideration is, what damages in money shall be given to the plaintiff for the injury done to him? That is a matter within your sound judgment and discretion. If you find that this was a false and malicious libel, wholly unfounded, the damages shall be of a character to vindicate the plaintiff against the charge that is made against him. And where an offense has not only been put forth in the public prints but reiterated upon the record, and maintained throughout from beginning to end, it goes'in aggravation of damages, and punitive dam ages may be given in addition to_ other damages. The whole subject of damages is in the discretion of the jury. The object and purpose of the action is, as far as can be, to vindicate against the charge that was made against the plaintiff.
    On the other hand, if you find that this is not libel; that it was not of and concerning the plaintiff; that it does not impute to him any offence, then, as a matter of course, he is entitled to your verdict. The question, gentlemen, is for you. The responsibility rests with you. If this is a libel of the character as charged here by the plaintiff, it was a grave and serious one, one that a person can hardly be justifed in resting under with resorting to the courts for redress. Without prejudice, without passion, and with a view to do right, you will take this case and dispose of it.
    Verdict for plaintiff for $1,441.50.
    Chase then took a writ of error assigning 6 errors as noted.
    
      Wm. McLean, Esq., for plaintiff in error,
    cited Peters vs. Ulmer, 76 Pa., 402; Drown vs. Allen, 91 Pa., 393; Struthers vs. Peacock; 3 W. N. C., 215; McKennon vs. Greer, 2 Watts, 353; McClurg vs. Ross, 5 Binn, 219; Bornman vs. Boyer, 3 Binn, 519; Pittock vs. O’Neill, 63 Pa., 253; Gosling vs. Morgan, 32 Pa., 273.
    
      W. H. McCartney and H. W. Palmer, Esqs., contra,
    
    cited Farley vs. Ranck, 3 W. and S., 554; Rush vs. Cavenaugh, 2 Penna., 187; Updegrove vs. Zimmerman, 13 Pa., 619; Gorman vs. Sutton, 32 Pa., 247.
   The Supreme Court affirmed the judgment of the Common Pleas on April 23, 1883, in the following opinion:

Per Curiam.

The learned judge kept clearly within the authorities when he defined libel to be any wri ten or printed publication which charges a person with an infamous crime, or with any other matter which renders him odious or ridiculous in the eyes of the community; Pittock vs. O’Neill, 63 Pa., 258; Barr vs. Moore, 87 Pa., 385. The court very properly said the language was not to be strained to find a meaning on either side; but the words should be taken in their reasonable and ordinary sense, as would be understood by ordinary persons. The meaning of the language, and whether it was intended to apply to the defendant in error, were both fairly and correctly left to the jury. The questions were properly for them. It is complained that the court said, an unsupported plea of justification was evidence of actual malice and goes in aggravation of damages; inasmuch as there was also a plea of not guilty. We cannot, however, see how the latter changed the effect of the former. Each presents a separate issue. It was, therefore, right to present to the jury the effect of each. While the plaintiff was entitled to all the protection each plea gave him, he subjected himself to all the obligation which each imposed ■on him. The court fail ly and clearly distinguished between the pleas. It is said substantially that the case must be made out against the plea of not guilty. If the jury found that plea was not sustained, then they should consider the plea of justification, and give to it the effect stated. This is not error. .Viewing the charge as a whole, and the answers to the points, the law was clearly and accurately presented to the jury. We see no error to correct.

Judgment affirmed.  