The opinion of the court was delivered by: STEWART
Although the defendants argue, first that the publications are not libellous and second that they are not libellous per se, these are in essence one argument since any libel is actionable per se. Bausewine v. Norristown Herald, 1945, 351 Pa. 634, 41 A.2d 736; Collins v. Dispatch Publishing Co., 1893, 152 Pa. 187, 25 A. 546. In McAndrew v. Scranton Republican Pub. Co., 1949, 165 Pa.Super. 276, 67 A.2d 730, 733, the court quoted Section 569 of the Restatement of Torts and Comment c thereof with approval. Section 569 provides as follows: "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 Comment c, it is stated that 'The publication of any libel is actionable per se, that is irrespective of whether any special harm has been caused to the plaintiff's reputation or otherwise.' Although this case was subsequently reversed by the Supreme Court of Pennsylvania, 1950, 364 Pa. 504, 72 A.2d 780, the statement of the law in this regard was not challenged. Therefore, the fact that the plaintiff in this action does not allege any special harm can only affect the extent of his recovery and not his right to recover.
The question therefore becomes one of determining whether the publications here involved were libellous. In McAndrew v. Scranton Republican Pub. Co., 1950, 364 Pa. 504, 72 A.2d 780, 781, the Supreme Court of Pennsylvania stated the test as follows: 'Was the publication complained of capable of a defamatory meaning?' In answering this question, the court seemed to adopt the test of whether the article reflects upon the character of the person at whom it is directed in such a manner as to bring him into public ridicule, hatred or contempt. In addition, the court held that statements are not defamatory merely because they are annoying and embarrassing to the person to whom they are attributed. Section 559 of the Restatement of Torts describes the test as follows: 'A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.'
Under either of the tests indicated, we are of the opinion that the publications here involved are capable of a defamatory meaning. These articles attack the capabilities of the plaintiff as an author and historian, attack his motives in writing the Croation History, and accuse him of efforts to force the Croation Fraternal Union to pay for its publication. In addition, the articles contain several instances of personal vilification of the plaintiff. It seems to us that the articles here involved are such as to subject the plaintiff to public ridicule of his ability as an author and historian and public contempt of his motives in writing the Croation History. Certainly, they are calculated to lower him in the estimation of the community and to deter third persons from associating with him. These articles can cause more than mere embarrassment or annoyance.
Finally, the defendants argue that the publications are privileged as fair comment, stating that they are fair criticism of the Croation History which the plaintiff is writing. This argument has no merit for two reasons. First, it is apparent that the criticism in the articles does not purport to be a criticism of the History but rather is directed at the motives of the plaintiff in writing the History. Secondly, and more important, the question of whether these articles were privileged as fair comment is a matter not properly before the Court at this time, but is a matter of defense to be pleaded. To qualify as fair comment a publication must have been upon a proper occasion, from a proper motive, in a proper manner and must have be n based upon reasonable or probable cause. Bausewine v. Norristown Herald, supra. The defendant has the burden of proving that the publications were so privileged. McAndrew v. Scranton Republican Pub. Co., 1950, 364 Pa. 504, 72 A.2d 780; Montgomery v. Dennison, 1949, 363 Pa. 255, 69 A.2d 520. In both of these cases, the Supreme Court quoted Section 613(2) of the Restatement of Torts and Comment f thereof with approval. Section 613(2), in part, provides:
'(2) In an action for defamation the defendant has the burden of proving, when the issue is properly raised,
'(a) the truth of the defamatory communication,
'(b) the privileged character of the occasion on which it was published.
Comment f of Section 613 reads, in part, as follows: 'If the defendant relies upon the defense of absolute privilege, he has the burden of proving it. * * * If he relies upon the defense that the communication was published upon a conditionally privileged occasion, he likewise has the burden of proving it.'
It is the opinion of this Court that the complaint does state a cause of action in libel. The defendants' motion to ...