Mengel v. Reading Eagle Co., 241 Pa. 367 (Pa. 1913)

Opinion by

Mr. Justice Brown,

The main complaint of the appellants is that the learned trial judge failed to instruct the jury that the publication which led to this action was libelous. If he had so instructed them, he would have erred.

Written or printed words injurious to one in his business, calling, trade or profession are libelous; and if, standing alone, “the common understanding of mankind takes hold of the published words, and at once,

without difficulty or doubt, applies a libelous meaning to them,” they are to be so construed as a matter of law: Hayes v. Press Company, 127 Pa. 642. If words are not in themselves libelous, but are averred to be so by innuendo; it is for the court in civil cases to instruct the jury as to whether they are libelous, assuming the innuendo to be true: Pittock v. O’Niell, 63 Pa. 253; Collins v. Dispatch Publishing Company, 152 Pa. 187; but where the words are of dubious import, and their meaning is averred by innuendo, the truth of the innuendo is for a jury — that is, if the words are susceptible of the meaning ascribed to them, it is for a jury, and not for the court, to say whether they were used in that sense: Pittsburgh, Allegheny & Manchester Passenger Railway Company v. McCurdy, 114 Pa. 554; Price v. Conway, 134 Pa. 340; Collins v. Dispatch Publishing Company, supra; Wallace v. Jameson, et al., 179 Pa. 98. Under the foregoing and many other authorities to the same effect it was for a jury to say whether the words of which the appellants complain were libelous.

What is there on the face of the publication involved in the present case which makes it libelous per se? Nothing stated in connection with the advice alleged to have been given by the appellants to Kornacki to withdraw his money from the trust company and invest it in a mortgage reflects upon their personal integrity. The property upon which the mortgage was given may have been assessed at only $1,750, but non constat, that it was not worth much more and that it did not amply secure the loan. There is no charge that deception of any kind was practiced by the appellants upon Kornacki in inducing him to take the mortgage. Nothing imputing dishonesty or unfair dealing to them is to be found in that part of the publication relating to their negotiation of a loan from the trust company to Kornacki, secured by an assignment of the mortgage. The statement that he called-for a settlement, but “could not secure satisfaction” is, to say the least, very vague. There is not

an element of libel per se in it. The appellants may have had good reason for not giving Kornacki the satisfaction he demanded. What he wanted does not appear in the publication, and his failure to get it may have been due to the trust company, and not to the appellants at all. There is no imputation of any wrongdoing on their part, nor does it appear from the publication that they intended to deprive Kornacki of anything that was due him. The same is true of what it is alleged the appellants did as the agents or attorneys of the trust company in causing the bond and mortgage to be sold. As to this part of the publication the learned, judge below, in his opinion denying a new trial, very properly said: “The mere fact that a $8,000 mortgage was sold for $1,700 is not conclusive of the fraudulency of the sale or of the worthlessness of the property mortgaged. If the agent of the company, in the absence of competing bidders, ran it up to the amount of its claim against Kornacki, that circumstance would rather be indicative of good faith towards him; and the statement affords room for that inference as readily as for any other. What remains, viz, that ‘it is claimed’ that Kornacki at no time derived any benefit from the investment, i. e., from his purchase of the $3,000 mortgage, and that he was charged 6 per cent, interest upon his loan from the company, implies no violation or neglect of duty on the part of anyone. To say that a man who bought a mortgage, immediately pledged it as security for a loan, defaulted in payment of the latter, and let the mortgage be sold by the pledgee for the amount of the debt, has derived no benefit from his investment, may in a general, though perhaps inaccurate, way of speaking be true enough; but in itself such a statement reflects on nobody concerned, — any more than the additional one that upon the loan made to him by the pledgee he was charged with legal interest. It would thus seem to follow that, as regards the body of the publication complained of, there is nothing in it which could properly be

pronounced by the court as a matter of law to be libelous.”

While there is nothing in the body of the publication which would have justified the court in pronouncing it libelous as a matter of law, it must be viewed as a whole, including its headlines, in which deceit is said to be charged in the action brought by Kornacki against the appellants and the trust company. If such a charge was made in that action, it was a matter of public record, and as such the appellee was privileged to publish it. Though no declaration had been filed in the action against the appellants at the time the appellee published the account of it, it appeared by competent testimony that the praecipe directed the prothonotary to issue a “summons in an action of trespass for deceit”; and the praecipe was part of the record: Fitzsimons v. Salomon, 2 Binn. 436; Wilkinson v. North East Boro., 215 Pa. 486. The jury were properly instructed that, among publications which a newspaper is justified in making, and for which its proprietors cannot be held for damages, even if they be libelous, is that of proceedings in courts of justice as taken from the public records.

Counsel for appellant, having evidently been of opinion that the publication could not be pronounced libelous as a matter of law, added what, in substance, is an innuendo, and the truth of it, as applied to the words used, was, under all the authorities, for the jury, who were properly instructed to take the entire article into consideration — headlines and all — and to read it as ordinarily intelligent men would read it in determining whether it impeached the integrity or honesty of the appellants in the business in which they were engaged. The verdict conclusively settled that question of fact. The first three assignments of error are overruled.

The fourth assignment complains of the admission in evidence of the plaintiff’s statement in Kornacki v. the appellants. While it is true the declaration or statement was not filed until nearly two weeks after the pub

lication of the article complained of, there was testimony that, before it was published, a reporter of the appellee called upon counsel for Kornacki and got a copy of the declaration. Under the circumstances, it was a proper item of evidence, tending to show how the publication happened to be made and in mitigation of damages if it ought not to have been made. As no exceptions were taken to the rulings of the court which are the subjects of the fifth and sixth assignments, the same are dismissed.

The record is entirely free from error and the judgment is affirmed.