Wallace v. Jameson, 179 Pa. 98 (Pa. 1897)

Opinion by

Mr. Justice Mitchell,

The first three assignments of error relate to the application for change of venue. At the time’ this suit was brought the Hon. A. L. Hazen was president judge of the district and there was nothing peculiar in the case in respect to the time or place of trial, or the judge to try it. But after suit brought the plaintiff was elected president judge, and of course was ineligible to try the case. In such a situation the statutes point out two remedies. Under the act of April 22, 1856, P. L. 500, the president judge may certify his disability and then must order the case to be heard before “ the president judge residing nearest the place of such trial, who shall be disinterested: ” Com. ex rel v. White, 161 Pa. 576. Or by the act of March 30, 1875, P. L. 35, either party may by petition apply for a change of venue. Each of these acts is effective for the purpose of securing an impartial trial. The intent is the same in both, and there is no repugnancy in the two remedies, to prevent their concurrent existence. But the one which is first applied, must thereafter necessarily be exclusive in the particular case. The act of 1875 is cumulative, and was not intended to repeal or supersede the act of 1856. When therefore the present case was properly certified to the nearest judge, under the act of 1856, there was no longer any room for the intervention of the act of 1875, on the ground of the interest of the judge as the common intent of both acts had been secured.

The application for change of venue was tardily made on the day set for trial. The act of 1875 does not fix any time for filing the petition, but directs that it may be presented “ to the court in term time, or to any law judge thereof in vacation,” and must be accompanied with an affidavit that it is not intended for delay, thus manifestly indicating that it should be promptly done, and not deferred till the trial is actually called with a jury at hand. In the present case the motion was first made before Judge Wallace, who properly referred it to the judge to whom the case had been already certified, and the latter refused it on the ground that the case was already before a judge appointed by law, under the act of 1856, to try it, and who was disinterested. In this there was no error.

Before the jury was sworn the defendants filed a special plea to the jurisdiction of the court as constituted. Part of the

grounds, relating to the change of venue have been already disposed of, but the plea asserted the disqualification of Hon. S. H. Miller to try the case, as he was “not an impartial, unprejudiced and indifferent judge with respect to the matters in issue.” The only evidence produced in support of the plea was a letter from Judge Miller to one of the defendants calling his attention to some articles in the newspaper, and expressing the opinion that he could and did sometimes control the columns of The News, and “ could put a stop to this if you (he) wished to.” Neither the letter nor the matters referred to in it had any connection with the present suit, nor did they in anyway show any interest which disqualified the judge. Objections which merely relate to the judge’s personal opinions or feelings, and not to his legal interest in the case or the question, are not within the statute, and must be addressed to his discretion: Ellmaker v. Buckley, 16 S. & R. 72; Library Co. v. Ingham, 1 Whart. 72; Phila. v. Fox, 64 Pa. 185.

The fourth assignment is to overruling the challenge to the array of jurors, because the plaintiff in the suit, Judge Wallace, had participated in the selection of the names and putting them in the wheel from which juries were to be drawn during the year. This objection was made too late. The names were selected and put in the wheel for the year 1896 on January 6, in pursuance of an order made in the previous month. The case had then been at issue for more than a year (plea filed in December, 1894), and defendants must have known that it was likely to be upon the trial list at any session of the court in 1896, yet they did not make this motion until May 26, after the overruling of the motion to change the venue and the plea to the jurisdiction, and when the jury was about to be called for the trial. It was too plainly meant for delay to be treated with favor. As said by our Brother Dean in Klemmer v. Railroad Co., 168 Pa. 521, 583, “ all text writers on practice say that a motion to quash the array should be made as soon'as the facts which warrant it are known.”

But even if made promptly and overruled the objection would not warrant a reversal of the judgment. Five hundred names were put in the wheel, and the selection of them was the work of the president judge and the commissioners jointly, the main burden being borne by the commissioners as is evident from

their certificate that the judge was present only a portion of the time. With the drawing from this five hundred of the particular panel for the May session of the court, the judge had nothing to do. In Munshower v. Patton, 10 S. & R. 334, it was held that the sheriff who returned the jury being a brother of a party, was a good cause of challenge to the array, but it was also said that “ it would be no cause of challenge that the sheriff was related to one of the parties, so far as respected his uniting with the commissioners in making- out the list, and the other measures preparatory to their summons.” The mere cooperation of the interested officer in the selection of names to be put in the wheel for the entire year, was held too remote to sustain a challenge. The same reason applies with even greater force to the present case. The cause was at issue before the jurors were named for 1895. Was the judge to refrain from the performance of part of his official duty merely upon the chance that his own case might come up for trial during that year? It did not come up. Was he then to refrain for another year? Such a construction would be unreasonable. If the defendants thought themselves in any danger from a jury of the county drawn out of the five hundred so selected, there was ample remedy in a timely application for a change of the venue, to an indifferent county.

The sixth assignment is to the admission of a question put to Jameson, one of the defendants, whether he wrote or caused the publication of an editorial in the newspaper subsequent to the alleged libel. He answered that he had not, and the article was not offered in evidence. Whether this editorial was competent evidence or not depends on matters which do not appear, and nothing is shown in the exception by which appellants could have been injured.

The next two assignments are to the refusal of a nonsuit, which is not the subject of review.

The defendants presented requests for charge that the publication complained of was not libelous per se, that there being-no allegation, and no proof of special damage the verdict must be for defendants, and that the publication was not capable of the meaning ascribed to it by the plaintiff that he had been party to the unlawful settling of a criminal prosecution by the bribery of the mayor. All these requests were properly refused.

The judge instructed the jury that the publication was not libelous per se unless it charged bribery, which was much more favorable to defendants than they were entitled to, since to impute corrupt or dishonorable action to an attorney in his professional conduct is actionable per se though it fall short of bribery : Barr v. Moore, 87 Pa. 385; Townshend on Slander and Libel, ed. 1890, pp. 248, 357; Newell on Libel, etc., ed. 1890, p. 184 and cases cited. Whether the publication conveyed the meaning charged was for the jury. It was clearly susceptible of it without innuendo or colloquium, if indeed it really admitted of any other.

Appellants further claimed that the publication was privileged, and that there was probable cause to believe the statements true. Even if this were fully conceded it would not help the appellants’ case. As plaintiff was a candidate for public office, his character and conduct were proper subjects of public discussion, and the publication of any facts throwing light on his qualifications or disqualifications would be privileged. But the publication complained of was more than a narration of even alleged facts. It was a highly sensational and damaging account of an alleged illegal transaction, -with mention and reference to the plaintiff as being connected with and party thereto. It brought the* case directly within the rulings in regard to the style of the publication. Thus in Pittock v. O’Neill, 63 Pa. 253, it was said, “ had the publication been confined to the petition filed in the court of common pleas, it might have been considered as privileged, and the plaintiff held bound to prove express malice. But the comments which accompanied it deprived it of its privilege. It has been held to be libelous to publish a highly colored account of judicial proceedings mixed with the party’s own observations and conclusions.” In Neeb v. Hope, 111 Pa. 145, it was said, “ The defendants contend that if the publication was made in good faith and without malice they are not liable. This wotdd be so had the article kept within proper limits.” And in Conroy v. Pittsburg Times, 139 Pa. 334, it was held that a privileged communication is one made upon a proper occasion, from a proper motive, based upon reasonable or probable cause, and in a proper manner. “ If the manner be improper the privilege is lost.” While a fair account of the transaction which was the basis of the publication would have

been privileged, the manner and style of this account and comment were for the consideration of the jury to determine if the privilege had been exceeded, and were properly submitted to them for that purpose.

The remaining assignments are to the submission of the case to the jury without sufficient evidence, especially against the defendant Jameson. It is enough to say that there was evidence that there was an agreement between the manager of the newspaper and Jameson, who was one of the executors of the former owner, that Jameson was to have control of the political columns of The News in that campaign, so far at least as related to the candidacy of the plaintiff for the judgeship. Whether he exercised this control in such manner as to make him jointly liable for the publication here complained of was a fact in the case which was fairly submitted to the jury.

In regard to the evidence of express malice, as bearing on the question of damages, it was entirely competent for plaintiff to show that the newspaper had challenged him to explain his connection with the alleged bribery, and when he offered the explanation fortified by affidavits, the paper refused to publish it, even as a paid advertisement. Jameson’s liability in this as in other respects was as already said, a matter for the jury.

Judgment affirmed.