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April 18, 1950


Appeal, No. 206, Jan. T., 1949, from judgment of Superior Court, Feb. T., 1949, No. 26, affirming judgment of Court of Common Pleas of Lackawanna County, Nov. T., 1946, No. 502, in case of Matthew B. McAndrew v. The Scranton Republican Publishing Company. Judgment reversed.


Eugene Nogi, with him J. Julius Levy, James E. O'Brien and Nogi, O'Malley & Harris, for appellant.

John R. Gaughan, with him Victor J. Roberts, for appellee.

Before Maxey, C.j., Drew, Linn, Stern, Stearne and Jones, JJ.

Author: Maxey

[ 364 Pa. Page 506]


This is an appeal from the judgment of the Superior Court affirming the judgment of the Court of Common Pleas of Lackawanna County, denying defendant's motion for judgment n.o.v. The plaintiff brought an action of trespass for libel as a result of an article published by the defendant in its newspaper during a political campaign in Lackawanna County in 1946, reporting a political meeting which occurred in Mayfield Borough, Lackawanna County, on a certain Sunday afternoon. At that meeting Captain Fraser P. Donlan, who was Republican nominee for State Senator, made an address. He appeared in uniform, as he was still an officer. During the recent war he had his leg shot off while serving with the Marine Corps in action at Okinawa.

The article alleged that Matthew McAndrew took the platform and declared that the wounded Marine officer was trying to get sympathy votes by "carrying the flag". The article also said that McAndrew in replying to G.O.P. charges that "Communism found a home in the Democratic Party" apologized by saying: "Of course,

[ 364 Pa. Page 507]

    we all have to have a little Communism today." The entire publication is set forth below.*fn1

Following this newspaper article action was brought against the appellant for libel. During the trial the appellant duly moved for a compulsory non-suit and subsequently moved in writing for a directed verdict in its favor, both of which motions were denied. The case was submitted to the jury and a verdict in favor of the appellee in the sum of $900.00 was returned. Judgment was duly entered on the verdict. The jury also answered certain interrogatories. Defendant filed its motion for judgment n.o.v., which was denied. On appeal the Superior Court affirmed the judgment. An appeal to this court was then allowed.

The pivotal questions in this case are: 1. Was the publication complained of capable of a defamatory meaning? 2. When the trial court concluded that the publication in question was on a privileged occasion and made from a proper motive and in a proper manner, and when the plaintiff offered no evidence of the abuse of a privileged

[ 364 Pa. Page 508]

    occasion, should not the court have directed a verdict for the defendant?

At the trial Thomas F. Phillips, City Editor of the defendant Company, testified as to the origin of the publication of the article. Attorney Harold A. Scragg reported the matter to him and told him that Joseph Marzzacco, Esq., and James Scoblock, Republican candidate for Congress, both of whom were also present at the Mayfield meeting, would report the facts to Mr. Phillips. The latter then called Mr. Marzzacco, who replied: "I was there and I will give it to you exactly how it happened," and Mr. Phillips took down the story. He "read it back" to him and had it confirmed. In the meantime Mr. Phillips received a telephone call from James Scoblick, to whom Phillips then read the story, and Scoblick replied: "That's precisely what happened." Mr. Phillips added: "On the basis of that information I phoned the story in to the office and sent word to the man who was working the city desk that I had checked the story out."

In his opinion refusing judgment n.o.v. in this case President Judge HOBAN said: "The published words in this case are actionable provided they are in fact defamatory and are published in such a manner as to constitute a libel. A communication is defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." He then said: "... the question arises as to whether the printed report of McAndrew's actions or sayings at the political meeting would tend to lower him in the estimation of the community in which he lives, or to deter persons from associating or dealing with him." He also said: "... initially it is the function of the Court to determine whether the communication is capable of a defamatory meaning, and if the Court finds that such a meaning is not capable of being derived from the communication, the judge would have to grant a non-suit, give binding

[ 364 Pa. Page 509]

    instructions or judgment n.o.v. as appropriate." He then said: "The trial judge decided that such a [defamatory] meaning could be derived from the publication and that it was his duty to submit the question, as to whether such a meaning actually was derived by the recipients, to the jury." Judge HOBAN then said: "The writer of this opinion, if he were one of the original recipients, would probably not have taken a defamatory meaning from it, but he can see how easily sentimental people at the time and place would have received the remarks and imputations attributed in the article to McAndrew.... So also with that part of the communication which attributes to McAndrew a statement that we all have to have a little Communism. Such a statement as indicating association or sympathy with a group or political organization which a substantial part of our citizens regard as a discreditable one, is capable of a defamatory meaning."

As to the defendant's allegation that no special damages were either alleged or proved, Judge HOBAN said: "For our purposes we may say that publication by a newspaper of general and wide circulation of defamatory matter is libelous.... One who falsely and without a privilege to do so publishes matter defamatory to another in such a manner as to make the publication a libel is liable to the other, although no special harm or loss of reputation results therefrom.... In other words, if the publication of defamatory matter is done in such a way as to constitute libel, it is actionable per se without either the allegation or proof of special damages, unless excused by the defense of truth or privilege, and as to these defenses the burden is clearly upon the defendant to prove." Judge HOBAN then said: "... the trial judge correctly considered that the occasion for the publication, to wit, the report of a political meeting of interest to the public, was a privileged occasion and that the publication was made from a proper motive and in

[ 364 Pa. Page 510]

    a proper manner. The only question which the trial judge considered should be submitted to the jury was whether or not the defendant had reasonable and probable cause to believe in its truth."

The court was in error in saying to the jury: "The question for you to determine is whether at that time and under the circumstances, the publication of the fact that McAndrew is supposed to have said that Donlan, a Marine officer, was trying to get sympathy votes by wearing his uniform and using the flag, was actually harmful to McAndrew?" Before so instructing the jury, the court had determined that the communication was capable of a defamatory meaning. This determination is subject to review on appeal. Statements cannot be adjudged defamatory merely because they are annoying and embarrassing to the person to whom they are attributed. We have never found in any law report a case of a libel suit being successfully maintained against any person because of the ...

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