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FOX v. KAHN (06/24/66)

decided: June 24, 1966.

FOX
v.
KAHN, APPELLANT



Appeal from judgment of Court of Common Pleas of Delaware County, No. 1560 of 1961, in case of Jacques H. Fox v. Donald P. Kahn.

COUNSEL

Thurman Arnold, of the Washington, D.C., Bar, with him Richard L. Raymond, and Schroeder & Raymond, and Arnold & Porter, of the Washington, D.C., Bar, for appellant.

Garland D. Cherry, with him Kassab, Cherry, Curran & Archbold, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen and O'Brien, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Eagen dissents. Dissenting Opinion by Mr. Justice Cohen.

Author: Bell

[ 421 Pa. Page 564]

This is a slander action brought by plaintiff-appellee. A jury returned a verdict in favor of the plaintiff for $12,501. Defendant's motion for a new trial was granted on November 30, 1964, following the decision of the United States Supreme Court in New York Times v. Sullivan, 376 U.S. 254 (1964). At the second trial on May 4, 1965, the jury again returned a verdict for the plaintiff, this time in the amount of $12,500. Defendant's motions for a new trial and for judgment n.o.v. were dismissed by Order of the lower Court on October 28, 1965. From the judgment entered on the verdict defendant took this appeal.

[ 421 Pa. Page 565]

The complaint alleged that defendant made certain defamatory statements about plaintiff at a public meeting on November 1, 1961. Defendant was at this time a candidate for justice of the peace. Plaintiff, who was then the District Attorney of Delaware County but was not seeking office, was in attendance at the meeting, along with his family and friends. Over 100 persons attended the meeting, which was held to enable candidates for office to disclose their qualifications. The jury found -- as they undoubtedly could have from the testimony -- that defendant during the course of his speech made the following statement: "This is as to law and justice. We had a murder down here in Trainer and the District Attorney picked up a young weak-minded fellow and got a confession out of him; it was a simple way he got it, he put him in a room by himself and beat it out of him with a telephone book."*fn*

At the trial, defendant denied that he uttered these words but admitted that he knew, at the time the words were allegedly spoken, that plaintiff did not administer the alleged beating nor order it to be done. Defendant further admitted that he knew that the place where the alleged beating took place was not in the District Attorney's office, and that he had no basis for believing at the time of the public meeting that the plaintiff even knew of the alleged beating.

The testimony regarding the alleged beating was that a murder suspect, during the course of a habeas corpus hearing, had accused a state police officer of "slapping" him and injuring an eardrum during his interrogation. Defendant admitted that he had read this testimony and had conferred with the attorney for the murder suspect, prior to the public meeting. He further admitted that he knew prior to said meeting

[ 421 Pa. Page 566]

    that the only force that had been used was used by a state policeman.

Immediately following the public meeting, defendant wrote a letter to the local newspaper, which stated, inter alia: "Mr. Fox's handling of the Nicklaus case was, and still is, a perversion of law enforcement and an offense to justice. From his chosen clay pigeon, ...


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