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June 5, 1963


Appeal, No. 117, Jan. T., 1963, from judgment of Court of Common Pleas No. 1 of Philadelphia County, March T., 1956, No. 1444, in case of Austin Purcell v. Westinghouse Broadcasting Company. Judgment modified and affirmed.


George E. Beechwood, with him John V. Lovitt, and Beechwood and Lovitt, for appellant.

I. Raymond Kremer, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Musmanno

[ 411 Pa. Page 170]


Austin Purcell, the plaintiff in this case, sued the Westinghouse Broadcasting Company, owner of radio station KYW in Philadelphia, for slander and libel, averring in his complaint that the defendant on March 20, 1955, through the facilities of KYW, "recklessly, falsely, wickedly, maliciously and illegally broadcast" a program entitled "Tow a Crooked Mile, which broad-cast was false, scandalous, malicious, defamatory, libelous and slanderous," in that it accused the plaintiff of participating in law violations and schemes to defraud the public.

The defendant filed an answer making certain denials and setting forth under the heading of new matter that the program was "substantially true," that it "constituted fair comment upon a subject of public interest", that it was privileged and that the words and substance of the program were uttered without malice.

[ 411 Pa. Page 171]

At the trial which lasted eight days, the jury returned a verdict in favor of the plaintiff in the sum of $10,000 compensatory damages and $50,000 punitive damages. The defendant appealed, asking for judgment n.o.v., and, in the alternative, a new trial.

The salient facts follow. For some time prior to 1953 there reportedly flourished in Philadelphia what was known as a "towing car racket." When automobile accidents occurred, there often appeared on the scene a person who offered to tow the disabled car or cars off the streets. When the owner or owners later applied for their cars, they were handed alleged exorbitant bills for towing and repairs (which assertedly sometimes were not made) and which they were compelled to pay in order to repossess their vehicles.

[ 411 Pa. Page 278]

In 1953, the City Council of Philadelphia enacted an ordinance aimed at combating the described extortionate practice. Under this ordinance (1953 Ordinances, Page 278, Philadelphia Code, ยง 9-605, persons engaged in the towing business were required to take out a license and publish the prices they intended to charge for their services. Certain forms were prescribed for the business, and contracts for repairs had to be made specially.

On February 24, 1955, five persons who had been arrested and charged with violating this towing ordinance, came before Magistrate Elias Myers in Philadelphia. After an extended hearing at which only prosecution witnesses testified, the defendants were convicted under varying charges and sentenced. Since, in this appeal, we are only concerned with the fate of Austin Purcell, no further reference will be made to Purcell's fellow-defendants.

As to Austin Purcell, the magistrate pronounced his judgment as follows: "Austin Purcell, you should have been hald for $3,500 in fines, instead of which we will make it $500 also, and one costs. $1,000 Bail for

[ 411 Pa. Page 172]

Court." Purcell was held for grand jury action. Purcell appealed his summary conviction on March 4, 1955, and on September 16, 1955, the appeal was sustained and the record of conviction stricken from the record.

At the April 1955 session of the grand jury, he was indicted for conspiring to violate the provisions of the towing ordinance and at the June Sessions 1955, he was indicted for failure to register under the Fictitious Name Act. On January 17, 1956, the Commonwealth moved to nol pros both indictments and the court of quarter sessions granted the motion.

Thus, Austin Purcell was wholly exonerated of all charges of violating the law. In the meantime, however, on March 20, 1955, through the medium of the KYW radio station, Purcell's honesty was attacked, his integrity impugned and his standing as a law-abiding citizen severely maligned.

The defendant contends that at the time of the broadcast, the sponge of appeal had not wiped clean the slate of Austin Purcell and that therefore it was justified in applying to him the epithets which will later be more extensively discussed. In the presentation of his case against the defendant in common pleas court for slander and libel, Purcell introduced the stenographic record of the magistrate's hearing of February 20, 1955. That record covers 113 pages of the printed record. He also introduced as an exhibit the audio tape of the broadcast of March 20, 1955. It was played before the court and jury. In the printed record in our court it covers 18 pages.

The defendant maintains that whatever appears in the radio transcript is justified by what was said at the magistrate's hearing. A comparison between the magistrate's record and the radio transcript can, from the viewpoint of the defendant, only be regarded as lamentable.

[ 411 Pa. Page 173]

The hearing in the magistrate's court was the usual type of proceeding one encounters in the minor tribunals, hardly material for a full-blown dramatic radio or television program. This prosaic, dull, repetitive material, however, in the skillful hands of script writers and arrangers became transformed into an exciting show over the radio with villains, heroes - and innocent victims, one of them being the plaintiff in this case.

Had no real names been mentioned or existing persons not identified in it, the radio show would have been diverting but innocuous. But it was not presented as fiction; it was advertised and precisely labeled as a news documentary. Documentary proof is regarded as one of the highest types of reliable evidence. The radio station, therefore, prior to describing its program as documentary, was charged by the most elementary principles of propriety, to factually substantiate what it was to say, if that saying would tend to blacken the name of the person it singled out as a malfeasant. A man's good name is as much his possession as his physical property. It is more than property, it is his guardian angel of safety and security; it is his lifesaver in the sea of adversity, it is his parachute when he falls out of the sky of good fortune, it is his plank of rescue in the quicksands of personal disaster.

The defendant treated the plaintiff's name with reckless unconcern, culpable indifference and palpable irresponsibility. It made no effort to protect him from a possible injustice by making appropriate inquiry before castigating him publicly. Nor can it say that it was ignorant of the plaintiff's true status in the matter which was the subject of the broadcast. The defendant's own representative, Paul Taylor, of the KYW News staff, covered the magistrate's hearing and thus had direct, personal knowledge of what transpired there. Later he became the principal performer on the radio show.

[ 411 Pa. Page 174]

In the broadcast, Taylor spoke in the first person. He told how he had originally been impressed and disturbed by a complaint someone had made to him about a "gouging he had received from a guy who had towed his car away." Taylor related how he decided to do something about the situation and how he went to the district attorney, armed with a portable tape recorder. He then, on the radio show, played back the district attorney's statement in which the district attorney spoke of the "very tough mugs who run this towing car racket," and of how automobilists were being "gypped." Taylor narrated his conversations with two detectives (Hansen and Rosenberg) assigned to the "towing car racket," and, through his tape recorder, projected the utterances of these men, one of whom spoke of "many people" who "had been bilked by ...

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