'It is not necessary that the defendant prove the literal truth of the precise statement made. Slight inaccuracies of expression are immaterial, provided that the defamatory charge, if you find it to be defamatory, was true in substance. However, the substantial truth of only a part of a defamatory charge is insufficient, if another part of it is false. In other words, it must all be substantially true.'
The foregoing language was in accordance with 12 P.S. 1582, Restatement of Torts, § 582, comment (e), and Kilian v. Doubleday & Co., Inc., 367 Pa. 117, 123, 79 A.2d 657 (1951).
In view of the testimony of the doctor (N.T. 155-6) and other witnesses (N.T. 82 & 233) that some foreign substance caused irritation to, or burning in, Marciano's eyes, as well as the other evidence referred to under the first paragraph of this section B, the above language was appropriate and question 2 was properly submitted to the jury.
C. The portions of the charge on the issue of conditional privilege, including the rulings of the trial judge on the related points for charge, did not contain reversible error (pars. 7 and 9-11 of Motion For New Trial).
In view of the terms of F.R.Civ.P. rule 61 and the jury's answers to questions 1 and 2, it is not necessary to discuss in detail the Pennsylvania law governing qualified privilege.
However, the legal basis for the rulings of the court on this subject are summarized as follows:
1. On this record, the court made the initial determination that this publication, even though found to be libelous, was made on a conditionally privileged occasion, since the Series of Articles were published within six months of the retirement of a world champion, heavyweight, United States boxer while still undefeated, and the exposure of possible improper conduct in the national sports field was, hence, appropriate at that time as part of that series. See Restatement of Torts, 619, 594 & 598, cf. 596, Dempsky v. Double, 386 Pa. 542, 546-547, 126 A.2d 915 (1956), and other cases cited at page 17 of defendant's brief (Document No. 33). The argument of plaintiff appears at pages 20-23 of his brief (Document No. 32). The wording of the charge in the last paragraph at N.T. 670, which continues on N.t. 671, is based on the Scope Note at pp. 240 and 241 of Restatement of Torts, Topic 3.
2. The portion of the charge concerning possible abuse of the conditionally privileged occasion (N.T. 672-3) is based on the Restatement of Torts, 600 and 601, and such Pennsylvania cases as Bausewine v. Norristown Herald, supra, 351 Pa. at 644-646, 41 A.2d 736, Montgomery v. Dennison, supra, and Dempsky v. Double, supra, 386 Pa. at 546-547, 126 A.2d 915.
3. The burden of proving the abuse of the conditionally privilege occasion was placed on plaintiff in accordance with 12 P.S. § 1584a(a)(g). There appears to be no definitive Pennsylvania case on the point since the enactment of tha above Act of August 21, 1953, P.L. 1291. See pp. 20-25 of plaintiff's brief (Document No. 32) and pp. 19-21 of defendant's brief (Document No. 33).
4. Since the charge, when read as a whole, correctly covered the applicable law on the issue of conditional privilege (see 1-3 above), there was no necessity for the trial judge to read all of plaintiff's points for charge on this issue (pars. 10-16 of Document No. 23). See Gerhart v. Henry Disston and Sons, Inc., 290 F.2d 778, 795 (3rd Cir. 1961), where the court said:
'It is not prejudicial error to refuse to give a requested instruction even though it be an accurate statement of the law, if the issues have been fairly and correctly covered in the general instructions given.'
In ruling on paragraphs 11-15,
the trial judge made clear that he was not reading them because of the statements of fact, which were matters 'for argument,' contained in them and that, as far as he could tell, he agreed with the statements of law contained in them (N.T. 592-3).
Reading the second sentence of paragraph 16 of plaintiff's Points for Charge would have required defining the significance of justifying prosecution for an alleged crime, which would have had a tendency to confuse the jury (see page 19 of Document No. 32 for plaintiff's argument). The requirement that defendant have reasonable grounds for believing the publication to be true was explainted to the jury at N.T. 672-3. See § 601 of the Restatement of Torts; Montgomery v. Dennison, supra, 363 Pa. at 264, 69 A.2d 520; Sacchetti v. Fehr, 217 Pa. 475, 476-477, 66 A. 742 (1907).
5. The charge, when read as a whole, did not instruct the jury that 'defendant had a greater privilege to publish than that accorded to other individuals.' See par. 7 of Motion For New Trial (Document No. 28).
The fair reading of the following paragraph and the charge as a whole is that a publisher may have a privilege to publish, for a relatively large segment of the public, material which an individual, who is not a publisher, may not have a privilege to say because no public policy would justify such individual gossip (N.T. 669):
'The word 'privilege' which I have heretofore used means a status denoting the fact that conduct which, under ordinary circumstances, would subject a publisher to liability, under particular circumstances does not subject him thereto. In other words, what you or I might say on the street might subject us to liability, but where you have got a matter of public concern, such as the sports world, and you have got an important fight like this, a publisher has a privilege which we as individuals may not have. A privilege, in general, is based on the fact that the exercise is, by law, deemed necessary for the protection of some interest of the public which is of such importance as to justify the harm caused or threatened by its exercise or the fact that the publisher is performing a function for the proper performance of which freedom of action is essential.'
In emphasizing in the second sentence the words 'a publisher has a privilege which we as individuals may not have,' plaintiff overlooks the words 'say on the street' in that sentence and the underlined word 'may,' as well as the other language at N.T. 668-671.
And now, March 9, 1962, it is ordered that plaintiff's motion for new trial (Document No. 28) is denied.