Appeals from order and judgment of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1963, No. 1961, in case of Lillian Reis Corabi, also known as Lillian Reis et al. v. Curtis Publishing Company.
Jerome J. Shestack, with him Tom P. Monteverde, Robert F. Simone, and Schnader, Harrison, Segal & Lewis, for plaintiff.
Harold E. Kohn, with him David H. Marion, and Helen H. Stern, for defendant.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Roberts concurs and dissents. Mr. Justice Cohen took no part in the decision of this case.
Lillian Reis Corabi, also known as Lillian Reis, instituted this suit on her own behalf and on behalf of her two daughters, as parent and guardian, seeking damages in five counts from the defendant, Curtis Publishing Company, for publication of an article in the October 26, 1963, issue of the Saturday Evening Post entitled "They Call Me Tiger Lil." The complaint charged the article: (1) constituted unfair competition with Lillian Reis Corabi; (2) was defamatory of Lillian Reis Corabi; (3) invaded the privacy of Lillian Reis Corabi; (4) plagiarized from Lillian Reis Corabi; and (5) invaded the privacy of the two daughters of Lillian Reis Corabi, Barbara and Michael Corabi.
A jury trial resulted in a verdict in favor of the plaintiff and against the defendant in substantial amounts on counts Nos. 1, 2, 3 and 5.
Timely motions were filed by the defendant for judgments notwithstanding the verdict or a new trial. Subsequently, the court en banc below entered judgment for the defendant notwithstanding the verdict on the counts involving Lillian Reis Corabi's claims for unfair competition and invasion of privacy. The court denied the defendant's motion for judgment notwithstanding the verdict on the remaining counts, but ruled that the jury awards in connection therewith were grossly excessive and ordered a new trial, unless remittiturs for specified amounts were filed within thirty days. Proper remittiturs were not filed, and the order granting a new trial prevailed. See 437 Pa. 143, 262 A.2d 665 (1970).
Defendant, Curtis Publishing Company, filed an appeal (No. 487), and Lillian Reis Corabi filed two cross-appeals
(Nos. 499 and 529). No appeal was filed on behalf of Barbara and Michael Corabi.
Appeal of Curtis Publishing Company (Curtis) (No. 487)
The prime issue posed by this appeal is whether or not the lower court erred in refusing to enter judgment for the defendant Curtis notwithstanding the verdict on all claims presented by the plaintiff, particularly the personal claim of Lillian Reis for libel. In this connection, it is asserted that recovery must be denied as a matter of law because: (a) The publication involved was incapable of the interpretation urged by the plaintiff and was not defamatory as a matter of law; (b) The plaintiff, admittedly a public figure, failed to show by clear and convincing evidence either falsity or actual malice, and hence permitting recovery against Curtis under the circumstances would violate its rights guaranteed by the First and Fourteenth Amendments to the Constitution of the United States.
Before reaching the prime issue a discussion of our scope of review is necessary. As noted before, Curtis moved both for judgment n.o.v. and a new trial on the libel count. The lower court denied the former, but granted the latter. An appeal from the order denying judgment n.o.v. is specifically permitted by the Act of April 9, 1925, P. L. 221, 12 P.S. § 682.
The Act of April 9, 1925, supra, was first construed by this Court in March v. Phila. & West Chester Trac. Co., 285 Pa. 413, 132 A. 355 (1926). It was therein held that in reviewing an appeal in cases where a motion for judgment n.o.v. has been denied but a new trial has been awarded, the appellate courts will affirm unless the granting of the new trial was a clear abuse of discretion. Absent such abuse, the issue of the refusal
of judgment n.o.v. would not even be considered. Thus the rules governing appeals from orders which simply grant a new trial were held applicable: See, e.g., Phillips v. Cowden, 370 Pa. 288, 88 A.2d 404 (1952); Beal v. Reading Company, 370 Pa. 45, 87 A.2d 214 (1952); Regan v. Davis, 290 Pa. 167, 138 A. 751 (1927); Pringle v. Smith, 286 Pa. 152, 133 Atl. 33 (1926). After a careful reading of the statute and review of the cases thus far decided thereunder, we conclude the approach adopted in March, supra, thwarts the purpose of the statute.
In the situation at issue, there is no final order or judgment as to the moving party from which an appeal could be taken. Because of the favorable action on its motion for a new trial, the denial of its motion for judgment n.o.v. is an interlocutory order, which would not be appealable absent specific statutory authorization therefor. The purpose of the Act of April 9, 1925, supra, was to provide a statutory right of appeal to the moving party from this interlocutory order, because if it were entitled to judgment n.o.v., this would be determinative of the case, justifying a speedy review of this issue. In this respect, it is analogous to the Act of March 5, 1925, P. L. 23, § 1, 12 P.S. § 672, whereby questions of jurisdiction, because of their determinative significance, are appealable although interlocutory. Thus, when the moving party appeals pursuant to the Act of April 9, 1925, supra, it is not appealing from the favorable grant of a new trial, as the Court indicates in March, supra, but it is appealing from the interlocutory decision denying the motion for judgment n.o.v., and the statute so specifically states.
The granting of the new trial and the denial of the judgment n.o.v., should be considered independently of one another. Only the motion denying judgment n.o.v. should be considered when an appeal is taken pursuant
to the Act of April 9, 1925, supra, because the granting of the motion for a new trial is an interlocutory order as to the moving party, for which no statutory right of immediate appeal has been given. Thus, if one skirts the judgment n.o.v. issue, as sanctioned in March, supra, the purpose of the statute is emasculated, resulting in a perhaps unwarranted new trial with accompanying expense in money, time and judicial resources. This has been implicitly recognized in several cases: See, e.g., Kuhler v. Harrison Const. Co., 361 Pa. 100, 62 A.2d 853 (1949); Aland v. P-G Publishing Co., 337 Pa. 259, 10 A.2d 5 (1940); Schroeder Bros., Inc. v. Sabelli, 156 Pa. Superior Ct. 267, 40 A.2d 170 (1944); Matevish v. Ramey Boro. School Dist., 167 Pa. Superior Ct. 313, 74 A.2d 797 (1950); Silveus v. Grossman, 102 Pa. Superior Ct. 365, 156 A. 716 (1931). We therefore abandon the standard of review set forth in March, supra, and will proceed to consider directly the merits of the contention of Curtis that it is entitled to judgment n.o.v. on all claims involved.
Was the publication libelous? A libel is a maliciously written or printed publication which tends to blacken a person's reputation or to expose him to public hatred, contempt, or ridicule, or to injure him in his business or profession: Volomino v. Messenger Pub. Co., 410 Pa. 611, 189 A.2d 873 (1963); Cosgrove S. & C. Shop, Inc. v. Pane, 408 Pa. 314, 182 A.2d 751 (1962); Schnabel v. Meredith, 378 Pa. 609, 107 A.2d 860 (1954).
The elements which a plaintiff must prove to recover in an action for libel under the law of Pennsylvania were delineated by statute by the passage of the Act of August 21, 1953, P. L. 1291, § 1, 12 P.S. § 1584a (Supp. 1970). Among these are the "defamatory character of the communication" and the "recipient's understanding
of its defamatory meaning." Curtis first maintains that the article published was incapable of the interpretation urged by the plaintiff and was not defamatory as a matter of law.
"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:" Cosgrove S. & C. Shop, Inc. v. Pane, supra, at 318; Birl v. Phila. Elec. Co., 402 Pa. 297, 303, 167 A.2d 472 (1960); Restatement of Torts § 559 (1938). And "to be defamatory, it is not necessary that the communication actually cause harm to another's reputation or deter third persons from associating or dealing with him. Its character depends upon its general tendency to have such an effect. In a particular case it may not do so either  because the other's reputation is so hopelessly bad or  so unassailable that no words can affect it harmfully, or  because of the lack of credibility of the defamer:" Restatement of Torts § 559, comment d (1938). See also, Miller v. Hubbard, 205 Pa. Superior Ct. 111, 207 A.2d 913 (1965).
Procedurally, it is the function of the court, in the first instance, to determine whether the communication complained of is capable of a defamatory meaning: Volomino v. Messenger Pub. Co., supra; Cosgrove S. & C. Shop, Inc. v. Pane, supra; Restatement of Torts § 614(1) (1938). If the court determines that the statement is capable of a defamatory meaning, it is for the jury to determine whether it was so understood by the recipient: Kernick v. Dardanell Press, 428 Pa. 288, 236 A.2d 191 (1967); Richwine v. Pgh. Courier Pub. Co., Inc., 186 Pa. Superior Ct. 644, 142 A.2d 416 (1958); Restatement of Torts, § 614(2) (1938). The lower court in this case did not err in finding those
passages which it submitted to the jury capable of defamatory meaning.*fn1
To determine the meaning of an allegedly libelous communication, it must be read in context: Restatement
of Torts, § 563, comment d (1938). See 95 U. Pa. L. Rev. 98 (1946). And we recognize that our listing of the alleged defamatory material out of context does not accurately represent the impression created by the whole article, and may not do justice to the expressed
intent of its author, Alfred Aronowitz, in writing the article. He testified, inter alia: "This article, over-all, was sympathetic to Lillian Reis. It was the first time her story had been brought out in such a long, enlarged form." "A title, 'They Call Me Tiger Lil,' of an article, arouses interest and curiosity in the woman of the subject involved." "It doesn't say it's sympathetic and it doesn't say it's unsympathetic. It just says it is a story about Lillian Reis." "I had to sit down and start writing about Lillian Reis. Now, who was Lillian Reis? Well, I had her introduce herself: 'This is what they call me.'" "The intention in all of this summary of the case, of the Pottsville case, which takes a lot of room because there were a lot of details -- and it is still very quick, very sparse -- it is just to try to summarize the events which had elevated Lillian as a public figure from notoriety in this country." "It never stated that she was guilty." "Anybody who reads this can just -- just by reading it, can know that she protests her innocence." "The whole article is more or less a statement of denial of guilt in this crime, by Lillian." "What I am saying is that articles are not written so that somebody says, 'You are guilty,' and somebody else says, 'I'm not guilty,' and that's an article. All you need is this much space for that, and you get no feeling, no emotion and no depth, and you wouldn't have any kind of understanding of the characters. I mean that's the headline; that's not an article. And that's exactly what I was trying to dispel with this article. I was trying to dispel all of the headlines that had been accumulated about Lillian Reis, headlines like 'Mastermind' and '500 G Haul.'" ". . . she was trying to convey to me how she had been persecuted, how they had been calling her all these names. And to me that was the most outstanding thing about introducing her as a figure, as a character, as a public figure in this article."
However, in an action for libel, the liability of the defendant is not dependent upon the intention of the author. Nor does the mere susceptibility of the publication to an interpretation which would render it innocuous conclusively defeat a right of action for libel: Boyer v. Pitt Publishing Company, 324 Pa. 154, 188 A. 203 (1936). "The test is the effect the article is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate. The words must be given by judges and juries the same signification that other people are likely to attribute to them:" Boyer v. Pitt Publishing Company, supra, at 157. See Restatement of Torts, § 563, comment c (1938).
We agree with the lower court that the passages set forth in footnote 1, supra, are at least capable of defamatory meaning, because they are capable of conveying to the average reader imputations of involvement in or actual guilt of crimes involving moral turpitude and of immorality on the part of the plaintiff, Lillian Reis Corabi, thereby tending to harm her reputation, lower her in the estimation of the community, and deter third parties from associating with her.*fn2
Curtis next argues that the court below should have granted its motion for judgment n.o.v. on the libel count because plaintiff failed to show by clear and convincing evidence either falsity or actual malice, and that defendant's rights under the First and Fourteenth Amendments to the United States Constitution were thereby violated.
Implicit in this argument are three contentions of law, aside from their application to the facts of this
case: (1) Plaintiff must prove "actual malice" on the part of the defendant in publishing the article in order to recover for libel; (2) A prerequisite to a finding of actual malice is falsity, so plaintiff must likewise prove falsity; and (3) Both of these must be proved by "clear and convincing" evidence rather than by a preponderance of the evidence.
These contentions, especially contention (2), assume particular importance in this case because of a tactical decision made by Curtis' counsel at trial. Initially, in answer to plaintiff's amended complaint, Curtis asserted, inter alia, defenses of (1) consent, (2) substantial truth, (3) privileged character of the article because it was a matter of public interest published without malice, (4) privilege of fair and accurate comment on judicial proceedings, and (5) constitutional privilege under the First and Fourteenth Amendments because the publication concerned a public figure and was published without actual malice. After the plaintiff had concluded her case in chief and prior to beginning his case in chief, counsel for Curtis withdrew defenses (2), (3), and (4), supra, relying thereafter solely on the defenses of consent and constitutional privilege. With reference particularly to the withdrawal of the defense of substantial truth, counsel for Curtis claimed that, should the constitutional privilege be applicable, New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964), and its progeny placed ...