author: Rice, P. J.,

text:
    Binder v. Pottstown Daily News Publishing Company, Incorporated, Appellant.

      Libel — Pleading—Statement—Attaching copy of article to statement— Newspaper — Punitive damages.

    In an action of trespass against the proprietor of a newspaper to recover damages for libel, the form setting out the libelous words, by attaching a copy of the article in which they appear, to the statement, and making it part thereof, is open to criticism, but it does not constitute a substantial defect which can be complained of after pleading the general issue and going to trial on the merits.
    In such a case where the headlines of the article are quoted in the statement, but the article itself is attached thereto, and the statement charges that the writing is libelous, the charges in the statement cover not only the headlines actually quoted therein, but also the article attached as an exhibit.
    In an action for libel by one newspaper proprietor against another, where it appears that the article in suit was a long one, and embraced not only criticism of the paper itself, but charged that the news furnished by the plaintiff was fake news, that three men named had been grossly libeled by the plaintiff, and that the good reputation of the paper had been destroyed by the plaintiff, and that the latter was not responsible in a financial way, it is reversible error for the court not to instruct the jury to distinguish between such parts of the article as constitute a mere criticism of a thing, and such as either directly or indirectly are defamatory of the plaintiff personally.
    Where such defamatory charges are made, the social relation and standing of the plaintiff, and that he has a family, may be considered by the jury.
    It is not error for the court in such a case to refuse to permit the defendant's counsel to prove by cross-examination of the plaintiff that his newspaper circulation and his business had not been injuriously affected by the publication, where it appears that no evidence had been adduced by the plaintiff upon this subject, and the objection to the offer is met by a statement of the plaintiff's counsel, that plaintiff was not claiming special damages.
    Where a libelous article refers to a person named, or is so written that it would reasonably be taken to refer to him, it establishes legal malice within the meaning of the third section of the Act of April 11, 1901, P. L. 74, and where this is the case, the jury may under the Act of May 12, 1903, P. L. 349, award punitive damages against the defendant.

      The quality of an alleged libel, as it stands upon the record, either simply or as explained by averments and innuendoes, is a question of law for the court, and in civil cases the court is bound to instruct the jury as to whether the publication is libelous, supposing the innuendoes to be true. But there is a manifest distinction between instructing a jury that legal malice is to be implied from certain defamatory words, and instructing them as to the actual motive of the defendant in publishing them. It is therefore reversible error for the trial judge ■after saying that headlines were calculated to specially attract attention to add “the motive therefore was. evidently to attract attention rather than to give information.”
    Justification cannot be considered as pleaded within the meaning of the Act of April 11, 1901, P. L. 74, when under the plea of the general issue an offer is made at the trial to prove the truth of any libelous statement. The plea of not guilty is not a conclusive admission of the falsity of the publication.
    If it appears in the development of the plaintiff’s own case that a particular severable statement contained in the publication is true, the defendant is not precluded by his plea of not guilty from having the benefit of the evidence in mitigation of damages, particularly where the statement if true, was proper for public information.
    Argued Dec. 3, 1906.
    Appeal, No. 246, Oct. T., 1905, by defendant, from judgment of C. P. Montgomery Co., June T., 1904, No. 10, on verdict for plaintiff in case of William J. Binder v. Pottstown Daily News Publishing Company, Incorporated.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Libel to recover damages for libel. Before Weand, J.
    At the trial it appeared that the alleged libelous publication was as follows :
    “ IF YOU SEE IT IN THE LEDGER, IT’S NOT SO.

    “ HOW A ONCE RELIABLE NEWSPAPER HAS GRADUALLY LOST ITS REPUTATION.
    “ CHEAP METHODS OF SECURING NEWS.

    “ NEWS ARTICLES HAVE BEEN PRINTED WITHOUT MAKING ANY ATTEMPT TO VERIFY THEIR FACTS — HOW IT CAST REPROACH UPON THREE CITIZENS OF POTTSTOWN THROUGH CRIMINAL CARELESSNESS.
    “For more than a score of years a small — and constantly growing smaller — number of Pottstown people have looked up to the Daily Pottstown Ledger as being a journalistic paragon that could not, by any possible means, print a line that- would not pass muster as being irreproachable as to morals and as voracious as the Bible. This reputation was gained for the Ledger as a weekly, under the editorship of Lewis Davis, one of the ablest editors that the Schuylkill valley ever saw. Since his death, however, William J. Binder, the present publisher, has been living upon the reputation made by the late Mr. Davis through many years of the most careful newspaper work, but in late years the faith of the readers of the Ledger has received numerous jolts.
    “ To put it plainly, it has been as unreliable as cheap newspaper hired men could make it. The brains of the former management have given place to a $7.50 a week handy man, who is expected to collect news, dun subscribers and advertisers for their overdue bills, solicit job work and calendar orders, help put up the mails, see the undertakers and doctors, and, in fact, many other duties that a newspaper-man could not be expected to do.
    “ The result of this policy of economy has been evident in its columns for several years. It has deliberately printed news without any attempts to verify the facts, depending upon the ‘runner’ and the telephones to get their local news. Perhaps the most flagrant example of inaccuracy and a libel upon the fair name of three reputable citizens, whose names happen to be John Levengood, was printed in their columns on Thursday.
    “A man named George B. Levengood, residing at Bramcote, was arrested in the morning by detective ‘ Jack ’ O’Connor, charged with a serious offense. The Ledger’s ‘ runner ’ heard that the man’s name was Levengood, and without any attempt to verify either the name or facts, he rushed to the office, and the Ledger came out on Thursday afternoon and stated that ‘ John Levengood, of this town, was arrested this morning by Detective John O’Connor on a most serious charge, that of indecent assault.’
    “ There are three men in Pottstown bearing the name of John Levengood, all of whom are reputable citizens, and who have been grossly libeled by the Ledger in its criminal carelessness to verify the information it may have had before printing it. Each one of them would have good cause for libel against the publisher of the Ledger were the latter responsible in a financial way. .Common justice to the parties aggrieved should have prompted the publisher of the Ledger to print an apology yesterday in his columns, but not a word appeared.
    “ The readers of the Ledger were left under the impression that the news as printed in the Ledger was true, and innocent men were left under the shadow of suspicion of a serious offense. This was only in keeping with the policy of the publisher of the Ledger, who has repeatedly made false statements in his columns, and only retracted them in cases where he was forced to do so. A féw of the many fake news items published in the Ledger during the past few months are given below.” The plaintiff was asked this question :
    “ Q. Mr. Binder, you are a man of family? A. Yes, sir.”
    The Court: I understand the objection is based upon the proposition that the article complained of .as libelous refers only to the property of the plaintiff and not to him personally. The statement iifi'tlie case alleges injury to the plaintiff in Lis character and reputation and also that it is a reflection upon his business. The statement starts out by giving certain headlines which are sufficient to call attention to the article itself. Now the statement here makes no further reference to the article than simply setting forth these headlines. The argument of the defendant’s counsel might have some weight at this stage, that is, that'the article was directed entirely against the paper and hot' ágainst the individual; but after it sets forth these headlines, which were calculated to call attention to it, the plaintiff goes on by saying “ which said article is set out at large and attached to and made a .part of this statement.” The whole article, therefore, becomes part of the statement, and in that article the plaintiff is named personally. Therefore, I think that the point of the objection is not well taken. The objection is overruled and an exception is noted for the defendant. Bill sealed. [1]
    “ Q. What is the circulation of your newspaper now ? A. It don’t show any loss — ”
    Mr. Larzelere: We are not attempting to show special dam-, ages; we don’t propose to do that, and don’t claim that, and this examination is objected to.

      The Court: The objection is sustained. In this class of cases the plaintiff may be entitled to damages, although he does not show a penny in loss.
    Judge Gordon : As to financial responsibility, we can’t agree with your honor. It seems to me the plaintiff asks damages at the hands of the jury in the statement; damages to his newspaper, and it is averred in his statement to his business; and if we show his business has not been affected, the result would be for this jury to determine only the question of a technical right to a verdict.
    The Court: There is no claim for special damages, and, therefore, you can’t show that; so far as the ease has progressed, if he recovers damages at all, it is simply as compensation for the character of the article.
    (Discussion.)
    The Court: The article having been exhibited to jury and not having shown a penny of loss, then the damages might be merely nominal.
    Judge Gordon: We ask for an exception, your honor.
    The Court: The objection is sustained, and an exception noted for the defendant; bill sealed. [2]
    Judge Gordon: We now offer to prove by cross-examination that the circulation of plaintiff’s paper has not been injuriously affected by this publication, and that his business has not been injuriously affected by the publication.
    Mr. Larzelere: Objected to.
    The Court: The objection is sustained ; defendant excepts; bill sealed. [3]
    The court charged as follows :
    Gentlemen of the jury: — -The plaintiff in this case is the publisher of a paper in the borough of Pottstown. The defendant also publishes a paper in the same borough. The plaintiff has claimed in this action that the defendant, in its paper, has published a false and defamatory article reflécting upon him personally, and also upon that of his paper. It is technically called an action of libel. It is in effect of a double character; that is, a libel against him individually and also against his property or business.
    Now, the bill of rights provides that the printing press shall be free to every person who may undertake to examine the proceedings of the legislature or any branch of government, and no law shall ever be made to restrain the right thereof, The free communication of thoughts and opinions is one of the invaluable rights of. man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. It has been held that the freedom of the press is allowable in discussing the acts of our legislators and those who are in public life, and the conduct of our public officers, and the freedom also exists in the right of every newspaper to criticise every public officer, but this privilege must be exercised in certain ways. It must be done in a proper manner, for when made improperly the privilege is lost. [The make-up of this publication as shown by the headlines was sensational. The motive, therefore, evidently was to attract attention rather than to give information.] [4] Now you will have this publication before you; you will examine it, and it may assist you in determining what the result of your verdict shall be. You will examine it and ascertain whether the make-up is too sensational; whether it was done in a proper manner, and what its evident purpose was; this only for the purpose of determining what shall be the amount of the damages awarded. Any malicious publication, written, printed or painted, which by words or signs tends to' expose a person to contempt, ridicule, hatred, or degradation of character, is a libel, and the person libeled may recover damages, unless it be shown that the publication was true, or that it was justifiably made. Now, we say that definition says “any malicious publication.” Malice is said to be essential to an action for libel, but it is malice in a special and technical sense, which exists in the absense of lawful excuse, and where there may be no spite or ill-will, or disposition to injure others. Every publication having the other qualities of a libel, if willful and unprivileged, is in law malicious. The publication of words actionable in themselves is sufficient evidence of legal malice. Legal malice exists where a wrongful act is done intentionally. The proprietor of a newspaper, whether a natural person or a corporation, is liable for a libel contained in the paper, though without actual knowledge of the libel until after the publication. [Where the defendant published words which injured the plaintiff’s reputation he must be taken to have intended the consequences naturally resulting therefrom, and the question whether the defendant acted maliciously or not should not be left to the jury unless the occasion be privileged, and I charge you in this case the occasion was not privileged. Therefore, we have under the pleadings that this article is false, and the duty of the court to say to you that it is libelous.] [5]
    [Now, the law is not unreasonable, because it provides under the act of 1901 that in all civil actions for libel the plea of justification shall be accepted as an adequate and complete defense, when it is plead and proven to the satisfaction of the jury under the direction of the court, as in other cases, that the publication is substantially true, and that it has not been maliciously or negligently made. Now in this case there is no plea of justification, and therefore the falsity of the charge is admitted, and the court says to you that it is libelous, and, that being the case, the only question before you is, what damages shall be awarded to the plaintiff.] [6] Now, damages are of two kinds: first, what are known as compensatory damages to the plaintiff for the wrong done. In many cases a man may be libeled, and yet not be able to say in dollars and cents that he has suffered any damages whatever; and the law, recognizing plaintiff’s difficulty in such cases to prove actual damages, allows the jury to give such damages as in their opinion will compensate him for the loss that he has sustained; and where a libel charges a false defamatory charge or a malicious charge made against the individual, loss of reputation may be presumed by the jury. In this case, although the plaintiff has not shown to you in dollars and cents what he has lost, still you have the right to give him such amount as you think will compensate him for the injury that has been done him. [Now the injury as alleged here is the loss of reputation in his financial capacity and the future injury done to his business. You will take the article itself and find from its character what is the evident effect it must have had upon plaintiff’s business as the publisher of a newspaper, and upon him personally.] [7] [Now, does it refer in any way to Mr. Binder personally ? It is claimed that if this article is libelous at all, it is only libelous as against the newspaper, and that it cannot be construed to refer to him as an individual or to injure him. If you take that view of it, and that it therefore refers entirely to the newspaper, and no loss having been shown, the jury could find that he would not be entitled to any damages. Now, referring to the article, we find that it states: “ This reputation was gained for the Ledger as a weekly, under the editorship of Lewis Davis, one of the ablest editors that the Schuylkill valley ever saw. Since his death, however, William J. Binder, the present publisher, has been living upon the reputation made by the late Mr. Davis through many years of the most careful newspaper work, but in late years the faith of the readers of the Ledger has received numerous jolts.” Now, here you will see that William J. Binder is charged with being the publisher and with publishing the paper in the manner indicated, and it is for you to say as to whether or not this is not a direct attack upon him.] [8] [Again, it is said: “There are three men in Pottstown bearing the name of John Levengood, all of whom are reputable citizens, and who have been grossly libeled by the Ledger in its criminal carelessness to verify the information it may have had before printing it. Each one of them would have good cause for libel against the publisher of the Ledger were the latter responsible in a financial way.” Now, the first part actually charges William J. Binder as being the publisher, and mentions his name, and this latter part which I have just read to you says that as publisher of the Ledger he is not responsible in a financial way, or rather that “each one of them would have good cause were he responsible in a financial way.” Therefore, it is for you to say whether it is not a direct attack upon Mr. Binder individually.] [9] The other parts of the article refer to the newspaper, and it is for you to say as to whether or not it has injuriously affected his business as publisher of the paper, irrespective and apart from any injury done to himself.
    [Now, the law in these cases also allows what are called exemplary damages — damages in the nature of a punishment to the person who thus publishes a malicious libel, and this is done as much for the protection of the individual as it is to deter other persons from committing the same offense. Before allowing exemplary damages, you would have to determine from this article as to the motive which prompted it. Was it done with special malice against Mr. Binder and his paper? If it were not; if it were a mere careless article, published not with the intention of doing any direct damage, but simply to injure the plaintiff in a sensational way, then you might, in your judgment, find whether exemplary damages should not be given, and, if they should, they should not be very high.] [10]
    [Now, what was the motive in the publication of this article, or, rather, what was the direct effect of it? Was it to injure Mr. Binder personally, or was it to injure the paper, and was it to benefit the defendant ? Could the motive have been by creating distrust as against the Public Ledger, thereby carrying off persons who would have done business with the plaintiff ? If that was the motive, then the jury might find that the defendant ought to pay more than it otherwise would, if its motive was of that particular character; but in considering the question of damages, it is one that must be left to your good sensfe and good judgment.] [11]
    Defendant presented these points :
    1. The only libelous words charged by the plaintiff in this case are the following: “ If you see it in the Ledger, it’s not so. How a once reliable newspaper has gradually lost its reputation. Cheap methods of securing news. News articles have been printed without making any attempt to verify their facts — how it cast reproach upon three citizens of Pottstown through criminal carelessness.” Answer : Refused. [12]
    3. The words referred to relate to a thing only, to wit: a newspaper, and are not libelous, and your verdict, therefore, must be for the defendant. Ansiver ; Refused. [13]
    4. The plaintiff cannot recover in this action for a libel against him personally, as the alleged libelous words, set out in his statement, refer to the newspaper only and not to him personally. Answer : Refused. [14]
    5. There is nothing in the language set out in plaintiff’s statement of complaint which refers to plaintiff’s financial responsibility, or contains any aspersion of his credit or financial worth, and you cannot find a verdict for the plaintiff upon any alleged libel of his financial credit'and standing. Answer : Refused. [15]
    .8. The plaintiff has by his testimony established the fact that his credit has not been impaired or his business injuriously affected by reason of the article alleged as libelous, and you cannot, for this reason, award him any substantial damages. Answer: Refused. [16]
    ' 9. There has been no evidence in the case from which you can find any express malice or other fact as a foundation for punitive damages. Answer : Refused. [17]
    10. The plaintiff is not entitled to recover any punitive damages, and none should be awarded in this case. Answer : Refused. [18]
    13. The plaintiff cannot recover a verdict at all in this case except for words published of and intended to refer to him personally. Answer : Refused. [19]
    14. If you find that the words complained of as libelous in this case did not refer to plaintiff personally, your verdict must be for the defendant. Answer: Refused. [20]
    15. Under all the evidence in the case your verdict should be for the defendant. Answer : Refused. [21]
    2. You cannot find a verdict for the plaintiff upon any other words than those referred to, and which alone are set out in plaintiff’s statement of his case. Ansioer : This is true, but the copy of defendant’s paper attached to statement is part of it. [22]
    You cannot find the verdict for plaintiff because of any words published which are a criticism only of the newspaper published by the plaintiff, and not of himself personally. Answer : This is not true if the criticism is libelous. [23]
    You cannot award plaintiff: a verdict for any statement of fact in the alleged libel which you find from the evidence to be true. Answer : This is refused, as by the pleadings the statement referred to is admitted to be false. [24]
    You cannot award plaintiff any damages because of any statement made criticising the ' plaintiff’s newspaper. Answer : This is not true if the criticism is libelous. [25]
    Verdict for plaintiff for $3,175. Judgment was entered for $1,000. Defendant appealed.

      Errors assigned wrere (1-3) rulings on evidence, quoting the bill of exceptions; (4-25) above instructions, quoting them.

      James Gay Gordon, with him Evans $ Dettra, for appellant.
    —It is not enough simply to file a copy of the publication complained of, referring to it as “ part of the statement: ” Townshend on Slander & Libel, sec. 334 ; Fritz v. Hathaway, 135 Pa. 274; Clark v. Lindsay, 7 Pa. Superior Ct. 43 ; Com. v. Bangs, 22 Pa. Superior Ct. 403 ; Genesee Paper Co. v. Bogert, 23 Pa. Superior Ct. 23.
    Any such criticism, even where malicious, can only become actionable when it causes real damage. In this case the paper confessedly suffered no damage.
    If the contention of the appellant, that there was no question of personal libel at issue in this case, the court was clearly wrong in permitting the jury to find punitive damages. In any event there was no such evidence of wanton and actual malice in the case as would have justified the jury in finding punitive damages : Neeb v. Hope, 111 Pa. 145.
    There is no authority in any state or under any code for the statement that the plea of “ not guilty ” admits the falsity of the alleged libelous article. It is the plea of the general issue and denies the libel: .Updegrove v. Zimmerman, 13 Pa. 619 ; Sell v. Moyer, 9 Pa. Dist. Rep. 516.
    When a judge gives his own- views as to the weight and sufficiency of the evidence, it is absolutely essential that the jury shall be made to understand distinctly that the instruction was not given as a point of law by which they are to be governed, but a mere opinion as to the facts, to which they should give no more weight than it is entitled to receive : Smith v. Times Publishing Co., 178 Pa. 481; Burke v. Maxwell, 81 Pa. 139; Ditmars et al. v. Commonwealth, 47 Pa. 335 ; Commonwealth v. Orr, 138 Pa. 276 ; Spear v. R. R. Co., 119 Pa. 61.
    Lamiere, Gilson $ Fox, for appellee.
    — The social relations and standing of plaintiff and that he has a family, may be considered : Klumph v. Dunn, 66 Pa. 141; Beehler v. Steever, 2 Whart. 313.
    The title or heading of an article is a pare thereof, and must be considered in determining whether or not the publication is ■libelous ; and it has frequently been held in actions based upon publications in newspapers that the sting of the libel was contained in the headlines : Hayes v. Press Co., 127 Pa. 642.
    Where the language is clear and unambiguous the question whether or not it is actionable is one for the court: Pittock v. O’Neill, 63 Pa. 253; Collins v. Dispatch Pub. Co., 152 Pa. 187 ; Meas v. Johnson, 185 Pa. 12.
    April 15, 1907 :
    That appellee was declared irresponsible financially, was in itself libelous: Hayes v. Press Co., 127 Pa. 642; Wood v. Boyle, 177 Pa. 620; Price v. Conway 134 Pa. 340; McIntyre v. Weinert, 195 Pa. 52; Holland v. Flick, 212 Pa. 201; Collins v. Dispatch Pub. Co., 152 Pa. 187.
    The editor of a newspaper is not justified in calumnious attacks upon the private character of another editor: Stuart v. Lovell, 2 Stark. 93 ; 3 E. C. L. 331; Latimer v. Western Morning News Co., 25 L. T. (N. S.) 44.
    Any written words published of another which have a tendency to injure the latter in his or her office, profession, calling or trade, are libelous, and in a civil action therefor it is not necessary that the declaration or statement of claim should contain an averment of special damage.
    The same is ruled in McIntyre v. Weinert, 195 Pa. 52; Holland v. Flick, 212 Pa. 201; Price v. Conway, 134 Pa. 340.
    In publications not privileged this malice is implied from the false and libelous language itself, and needs no additional proof to support an action for substantial damages : Hayes v. Press Co., 127 Pa. 642; Moore v. Leader Pub. Co., 8 Pa. Superior Ct. 152 ; Neeb v. Hope, 111 Pa. 145.
    There was sufficient evidence to carry the case to the jury on punitive damages and support an award if it was made: Barr v. Moore, 87 Pa. 385 ; Palmer v. Leader Pub. Co., 7 Pa. Superior Ct. 594 ; Collins v. Dispatch Pub. Co., 152 Pa. 187; Stroud v. Smith & Son, 194 Pa. 502.
   Opinion by

Rice, P. J.,

A large part of the argument of appellant’s counsel, and many of the assignments of error, are based entirely upon the proposition that the parts of the publication attached to and made part of the plaintiff’s statement of claim which reflect on the plaintiff personally are not properly pleaded as libelous; that the words formally pleaded as libelous were a mere criticism of a “ thing ” — the plaintiff’s newspaper — and constitute the only libel charged in the case. This is the first question to be considered. Its correct determination depends upon the proper construction of the averments of the statement of claim. The statement of claim alleges that the plaintiff was proprietor and publisher of the “ Daily Pottstown Ledger,” a public newspaper, and that the defendant, the publisher of another newspaper, intending to injure the plaintiff and to deprive him of his good name and fame, and further intending to injure the reputation of his newspaper enterprise, falsely and maliciously published, in its daily issue of February 20,1904, “ of and concerning plaintiff and his said newspaper the following . . . . defamatory and malicious writing and libel, stating in large bold type headlines ” (which are here quoted) “ calculated to specially attract attention, and alleging incompetency and lack of reputation upon the part of plaintiff to conduct said newspaper, and that any printed news therein was unworthy of belief and distorted by petty prejudice ; and that said publisher, the plaintiff, was not financially responsible, and that his publication contained only fake news items, and on said account was entirely unworthy of public support, and that thereby it was fast losing the support of its friends and patrons; all of which charges, insinuations and calumnies are false and known to be false and untrue by the defendant at the time of the publication of said false, malicious and libelous article, which said article is set out at large and attached to and made part of this statement.” Perhaps it would have been better form to set out the entire article, or that part of it claimed to be libelous, in the statement of claim, putting the innuendoes in immediate connection with the clauses to which they relate, but though the form of setting out the libelous words, by attaching a copy of the article in which they appear to the statement and making it part thereof by reference as above set forth, is open to criticism, we are of opinion that it does not constitute a substantial defect which can be complained of after pleading the general issue and going to trial on the merits. Nor do we agree with the appellant’s counsel in their contention that no matter contained in the article, except that contained in the headlines, is charged as libelous, and it seems to us that scarcely more is required to show the erroneousness of their construction of the statement than the extended quotation therefrom we have made. It shows that the “following” writing is alleged to be libelous ; that part of this writing consists of the quoted headlines, and that the entire false, malicious and libelous article is set out at large and attached to and made part of the statement. The manner in which the headlines are referred to tends to show that the plaintiff did not mean to charge that they constitute the entire libelous part of the writing, and this becomes quite clear when it is noticed that in specifying what the writing alleges against the plaintiff and his newspaper matters are mentioned which are not even indirectly charged in the headlines, but are alleged in the article of which the headlines form a part. The fair and reasonable construction of the statement is the same as if the entire article had been copied verbatim in the body of the statement immediately after the words “ the following false, scandalous, illegal, defamatory and malicious writing and libel.”

In view of the foregoing conclusion, it cannot be said that the words pleaded as libelous constitute a mere criticism of the plaintiff’s newspaper, although some of the allegations of the publication may be so regarded. Speaking of these first, we refer for illustration to a paragraph near the end, which is susceptible of meaning only that the plaintiff’s newspaper does not contain.all the news, or that it is not a publication in which people expect to find the news. Prima facie this is not actionable defamation of the publisher; hence there was propriety in requesting instructions that the jury could not find a verdict for the plaintiff because of any words published which are criticism only of the plaintiff’s newspaper, and not of him personally, and that the plaintiff could not recover except for words published of and intended to refer to him personally. As the counsel for the appellant says, here was a long article; in it there was a diversity of comment; some statements of actual facts; some mere criticism of a thing; some remarks, capable perhaps, of personal application. Therefore the requests were pertinent; they called for infractions that would lead the jury to distinguish between such parts of the article as constitute a mere criticism of a thing, and such as either directly or indirectly are defamatory of the plaintiff personally. We are of opinion that the points containing these requests should have been affirmed, and that the omission to affirm them was not cured by what was said in the general charge, especially as in the portion of the charge quoted in the fifth assignment of error the learned judge instructed the jury that the article was libelous, without alluding to the distinction the jury would have been warranted in finding between its several parts. Therefore the fifth, nineteenth and twenty-third assignments of error sustained.

But as to the principal allegations of the publication we are unable to agree that they constitute mere criticism of & thing. Sometimes “ an attack upon a thing may be defamatory of the owner of that thing, or of others immediately connected with it. But this is only so where an attack upon the thing is also an indirect attack upon the individual. If the words do not touch the personal character or professional .conduct of the individual, they are not defamatory of him, and no action lies unless the words fall within the rules relating to slander of title. But to impute that the goods which the plaintiff sells or manufactures are adulterated to his knowledge, is a distinct charge against the plaintiff of fraud and dishonesty in his trade : ” 1 Odgers on Libel and Slander, 80. This illustration of the general proposition that an attack upon a thing may be defamatory of the owner of that thing, or of others immediately connected with it, is pertinent here. To charge that a newspaper does not contain much news is not a reflection upon the personal character or the professional conduct of the publisher. The dissemination of news is not the only purpose for which newspapers are published. Some excel in this and some in other departments. But to charge that a newspaper has been as unreliable as cheap newspaper hired men could make it; ” that “ the brains of the former management have given place to a $7.50 a week handy man, who is expected to collect news, dun subscribers and advertisers for their overdue bills, solicit job work and calendar orders, help put up the mails, see the undertakers and doctors, and, in fact, many other duties that a newspaper man could not be expected to do; ” that “ it has deliberately printed news without any attempt to verify the facts ; ” that three men, giving their names, were grossly libeled by the newspaper “ in its criminal carelessness to verify the information it may have had before printing ” a certain article; that many “ fake news items ” have been published in it, is, in effect, to charge the publisher with these derelictions. And the article in question leaves no room for reasonable doubt that such was the intention of the defendant. It speaks of the good reputation the newspaper had gained under the former editor, and then goes on to say that “ the present publisher has been living upon the reputation made by the late Mr. Davis through many years of the most careful newspaper work, but in late years the faith of the readers of the Ledger has. received numerous jolts.” In speaking of the above mentioned libel of the three men, the article declares: “ Each one of them would have had good cause for libel against the publisher of the Ledger were the latter responsible in a financial way.” A jury might well find that the defendant intended, not only to charge that the plaintiff had libeled these men, but to impute to him financial irresponsibility. Further, after stating that the plaintiff did not print an apology, as common justice would dictate, the article proceeds: “ The readers were left under the impression that the news as printed in the Ledger was true, and innocent men were left under the shadow of suspicion of a serious offense. This was only in keeping with the policy of the publisher of the Ledger, who has repeatedly made false statements in his columns, and only retracted them in cases where he was forced to do so.” It has been declared by high authority that a man who publishes a book “ challenges criticism,” and that he “ submits himself to the judgment of the public,” and the same is true of a man who publishes a newspaper. It is often difficult to draw the line where permissible, though severe, criticism of a book or a newspaper ends and defamation of the author or publisher begins; but we need not go into further detail to show that some of the allegations of the publication pleaded as libelous go beyond mere criticism of the plaintiff’s newspaper, and impute to him moral delinquency and violation of the criminal statute against libel, and that one of these allegations is susceptible of being construed by the jury as imputing to him financial irresponsibility. In such a case the social relations and standing of the plaintiff, and that he has a family, may be considered: Beehler v. Steever, 2 Whart. 313; Klumph v. Dunn, 66 Pa. 141. There was no error in the admission of the testimony embraced in the first assignment, or in the instructions complained'of in the eighth, ninth, twelfth, thirteenth, fourteenth, fifteenth, twenty-first, twenty-second and twenty-fifth assignments of error. They are overruled.

The next question we are asked to decide is, whether it is not always competent for the defendant in a libel case to show, where it is possible, that no actual damage has been sustained. This question is supposed to arise upon the second and third assignments of error, in which complaint is made of the court’s refusal to permit the defendant’s counsel to prove by cross-examination of the plaintiff that his newspaper circulation and his business had not been injuriously affected by this publication. It is to be observed that at this stage of the trial no evidence had been adduced by the plaintiff upon this subject and in stating his objection to the offers the plaintiff’s counsel declare “ we are not attempting to show special damages; we do not propose to do that, and we do not claim that.” ■ In view of this express disavowal of the right to recover special damages, and of the state of the evidence, we are of opinion that the court committed no error in rejecting the points upon the ground of irrelevancy. Even if there were doubt upon this point, the rulings were correct because the plaintiff did not testify in chief to anything to which this was relevant cross-examination. The second and third assignments of error are overruled.

Before objection had been made to this line of cross-examination the plaintiff had testified in answer to questions of the defendant’s counsel that he had not, to his knowledge, been refused any credit, nor suffered in his business any loss of credit, by reason of the article and this was made the basis of the defendant’s eighth point, the refusal of which is the subject of the sixteenth assignment of error. The point is somewhat broader than the plaintiff’s testimony. But assuming that the plaintiff had testified precisely as stated in the point, it was properly refused, if it was meant thereby — as seems to be the proper construction — that the fact that his credit had not been impaired or his business injuriously affected by the publication would prevent recovery of substantial damages. Where words are actionable as affecting the character of the plaintiff, he is always entitled to go to the jury on the question of general damages for the wrong done him in reputation, although no special damages has been alleged or proved: Meas v. Johnson, 185 Pa. 12, and under the head of general damages the jury may award a substantial sum : Leitz v. Hohman, 16 Pa. Superior Ct. 276 ; Neeb v. Hope, 111 Pa. 145 at page 156. Therefore this assignment is overruled.

It is urged in this connection that there is inconsistency between the reasons given for rejecting the evidence referred to in the second and third assignments of error and the instructions upon the question of damages (seventh assignment) in which the learned judge submitted to the jury to find from the character of the article “what is the evident effect it must have had upon the plaintiff’s business as a publisher of a newspaper.” If this question in this form was to be submitted to tbe jury at all, we are of opinion that in order to prevent misapprehension in the minds of the jurors as to the pertinency of their finding upon the subject, their attention should have been called to the plaintiff’s testimony just referred to and to his express disclaimer of right to recover special damages for injury to his business.

We find no error in the instructions quoted in the tenth and eleventh assignments as to punitive damages. The Act of July 1, 1897, P. L. 204 provided that in no civil action for libel should damages be awarded beyond just restitution for injury actually sustained, and this was construed to prohibit the allowance of vindictive, punitive or exemplary damages or smart money: Goebler v. Wilhelm, 17 Pa. Superior Ct. 432. This act was repealed by the Act of April 11, 1901, P. L. 74, the third section of which provides that no damages shall be recovered unless it is established to the satisfaction of the jury, under the'direction of the court as in other cases, that the publication has been maliciously or negligently made, “but where malice or negligence appears such damages may be awarded as the jury shall deem proper.” Where a libelous article refers to a person named, or is so written that it will reasonably be taken to refer to him, it establishes legal malice within the meaning of this section; the act has not made any change in the law in this respect: Clark v. North American Co., 203 Pa. 346. Moreover, the Act of May 12, 1903, P. L. 349 provides that where the libelous matter has been given special prominence by the use of headlines and by other means calculated to specially attract attention the jury shall have the right to award punitive damages. But irrespective of this act, if the jury found the facts recited in the instructions quoted in these two assignments, as they might, it was within their province to award punitive damages. Therefore these assignments are overruled.

The quality of an alleged libel, as it stands upon the record, either simply or as explained by averments and innuendoes, is a question of law for the court, and in civil cases the court is bound to instruct the jury as to whether the publication is libelous, supposing the innuendoes to be true : Collins v. Dispatch Pub. Co., 152 Pa. 187; Pittock v. O’Neill, 63 Pa. 253 ; Price v. Conway, 134 Pa. 340; Meas v. Johnson, 185 Pa. 12; Leitz v. Hohman, 16 Pa. Superior Ct. 276; Goebeler v. Wilhelm, 17 Pa. Superior Ct. 432. But there is a manifest dis tinction between instructing a jury that legal malice is to be implied from certain defamatory words, and instructing them as to the actual motive of the defendant in publishing them. It was proper for the learned judge to say to the jury that the headlines were calculated to specially attract attention. That was an obvious fact which could not be well disputed. Perhaps it would not have been out of place for him to express his opinion that the publication was sensational in its make-up, provided care was taken to make the jury understand that his opinion upon that matter was not binding upon them. But the added remark that “ the motive, therefore, was evidently to attract attention rather than to give information ” might have a very prejudicial effect upon the jury in determining the question of damages, and we are not convinced that it was counteracted by the instructions which followed. Therefore the fourth assignment is sustained.

The remaining question to be considered arises upon the sixth and twenty-fourth assignments. It is more clearly brought out in the point and answer quoted in the latter assignment, which were as follows : “ You cannot award plaintiff a verdict for any statement of fact in the alleged libel which you find from the evidence to be true. Amwer : This is refused, as by the pleadings the statement referred to is admitted to be false.” It should be noted that the evidence here referred to is the plaintiff’s testimony, for the defendant offered no evidence whatever. At common law the truth of any de: famatory words was, if pleaded, a complete defense to a civil action for libel, and the defendant could, in mitigation of damages, justify as to one particular part of the libel, provided such part contained imputations distinct from the rest; but it was required that justification must be specially pleaded. The act of 1887, it is true, provides that the only plea to the action of trespass shall be “ not guilty,” but the common-law principle of pleading seems to have been restored by the act of 1901, which provides: “ In all civil actions for libel the plea of justification shall be accepted as an adequate and complete defense, when it is pleaded and proved to the satisfaction of the jury, under the direction of the court as in other cases, that the publication is substantially true and is proper for public information or investigation, and has not been maliciously or negligently made.” The form of pleading justification, under this act, whether by short plea or by a specification of particular matter under the plea of not guilty, is not necessary now to determine ; but we are not prepared at present to agree with the appellant’s counsel that justification may be considered as pleaded within the meaning of the act when under the plea of the general issue an offer is made at the trial to prove the truth of any libelous statement. But the question before us is not what it was necessary for the defendant to do in order to introduce evidence of justification, but whether the plea of not guilty is a conclusive admission of the falsity of the publication. None of the cases go so far as that, although some of the authorities speak of the falsity being presumed if there be no other plea. They do unquestionably hold that if there be no other plea the falsity of the statement need not be proved by the plaintiff, but it seems unreasonable to hold that if it appears in the development of the plaintiff’s own case that a particular, severable statement contained in the publication is true, the defendant is precluded by his plea from having the benefit of the evidence in mitigation of damages, particular^ where the statement if true was proper for public information. We are of opinion that too much significance was given to the plea as admission of the falsity of the publication, and that the point should have been affirmed. But it would have been proper in affirming it to have cautioned the jury as to the necessity of the evidence showing the substantial truth of the particular severable statement as a whole. These assignments are sustained.

Judgment reversed and venire facias de novo awarded.


source: Caselaw Access Project

license: Public Domain

text:
    City of Scranton, Appellant, v. Scranton Electric Light & Heat Company.

      Taxation — Municipalities—Electric light company — License tax.

    Where an ordinance makes a statement of the gross earnings of an electric light company for the year ending June 1st a basis for taxes payable on April 1st, and it appears by its express terms that the ordinance is to take effect on the April 1st following its approval, the ordinance is to be construed as making the taxes payable in the first place for the year from the April 1st following the approval of the ordinance. The taxes do not become due and payable on the very day the ordinance went into effect.
    A city of the second class has no power to levy a tax upon the gross receipts of an electric light and power company.
    Submitted Feb. 28, 1907.
    Appeal, No. 3, Jan. T., 1908, by plaintiff, from order of C. P. Lackawanna Co., Jan. T., 1904, No. 436, dismissing exceptions to report of referee in case of City of Scranton v. Scranton Electric Light & Heat Company.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of James H. Torrey, Esq., referee.
    Kelly, J., filed the following opinion:
    This action was brought to recover the amount of a license tax levied against the defendant by virtue of an ordinance of the city which provides, inter alia, that every electric light company, engaged in business or about to engage in business, shall procure a license from the city treasurer and shall pay for it, annually, two per centum of its gross receipts per annum. After issue joined it was referred to a referee, under the provisions of the act of 1869, and supplements, who filed a report in which he directed judgment to be entered in favor of the defendant. The case is now before us on exceptions filed in behalf of the plaintiff.
    The second and fifth exceptions are dismissed without comment, as we acquiesce entirely with the reasoning and conclusions of the learned referee upon the subject-matter of these exceptions. The fourth raises questions which are also raised by the other exceptions, and need not be separately considered. The third raises the most important question involved in the case, viz.: the power of the city to levy the tax imposed by the ordinance.
    Before the passage of the ordinance Scranton had become a city of the second class, and it is claimed on the part of the city that the authority for the levying and collection of the tax in question is found in article XIX, section 3, clause 4, of the Act of March 7, 1901, P. L. 20, which reads as follows: “ Every city of the second class shall have power, for general revenue purposes, to levy and collect a license tax, to be fixed by ordinance, upon street railways, back-driver, auctioneers, and all and every corporation, company or individual doing business in said city, payable annually, and to regulate the collection of the same.” An examination of the ordinance under which this tax is sought to be recovered can lead to but one conclusion, and that is, as found by the learned referee, that the tax in question is not a license tax, but a franchise tax, or business tax. No discussion of this proposition need be added to that found in the report.
    That the legislature may impose such a tax upon corporations, in the absence of constitutional restriction or charter provisions forbidding it, cannot be doubted; and that the power to impose such a tax may be delegated to a municipal corporation, is equally clear. The question, therefore, is, does the clause of the act of 1901, which we have quoted, confer upon cities of the second class the right to levy and collect such a tax. We think not. The power to do sois not inherent in municipal corporations, and it will not be held to exist unless conferred in express terms or by necessary implication. Statutes delegating such powers are to be construed strictly, and if there is any doubt as to the existence of the power, it must be resolved in favor of the public and against the municipality: 21 Am. & Eng. Eney. of Law (2d ed.), 783.

      The power conferred by the words of the act is to levy’ and collect a license tax upon street railways, hack-drivers, auctioneers, etc. This language indicates the intention to levy and collect license taxes within the ordinary mfeaning of the term. It is true that the act says that the power to levy and collect such taxes shall be “ for general revenue purposes,” and it is one of the tests in determining whether the legislature intended to provide for a license fee, or a tax, to consider whether the purpose -was for revenue only, or for the purpose of regulation; but that is not the only test. In construing any statute we must look to the whole of the language used. The provision for levying a license tax upon street ears, hack-drivers and auctioneers suggests that regulation was the uppermost thought of the legislative mind, while the provision that the tax was for general revenue purposes, suggests the contrary. The legislative intent is not very clearly expressed, but is, to say the least, ambiguous. As was said by Frazer, P. J., in Pittsburg Rys. Co. v. Pittsburg, 211 Pa. 479 : “As an authority delegated by the state to impose and collect a tax, the clause is quite indefinite.”
    It appears in the findings of fact that the defendant ■ company has paid to the state a tax upon its capital stock, and also a tax upon its gross receipts, as required by the laws of the commonwealth, for the same period of time that the city now seeks to collect the tax in question. However this tax may be designated by the city ordinance, it is in fact, an additional tax upon its gross receipts, and to construe the statute so as to authorize its collection would be to subject the defendant to double taxation. While, in Pennsylvania, the legislature may impose double taxation, in a proper manner, the intent to do so will not be presumed. The presumption is against the existence of. such an intention, and this presumption will prevail until it- is overcome by express language showing such intent: Fidelity Ins., etc., Co. v. Loughlin, 139 Pa. 612; Com. v. Fall Brook Coal Co., 156 Pa. 488. Upon this principle also we are forced to the conclusion that the clause of the act in question does not confer upon the city the right to impose such a tax.
    This clause has been construed by the Supreme Court in Pittsburg Rys. .Co. v. Pittsburg, 211 Pa. 479, and it was there held that it did not confer power to collect a property tax. While the question in that case was not precisely the question here, the same principle is involved. Mr. Justice Brown, in his opinion on page 487, said : “ What the act of assembly authorizes the city to levy and collect is a license tax or fee. ...” And again, at page 488, he said : “ The authority conferred on the city of Pittsburg by the paragraph quoted from section 3, art. XIX, of the act of 1901, is to levy and collect a license tax or fee. The attempt is to collect a property tax which is not authorized by either of the paragraphs. . . . ” Here the attempt is to collect a franchise or a business tax, which the statute does not authorize.
    Inasmuch as we have concluded that there is no authority to support the ordinance at all, it would be idle to discuss the first exception, which relates to the question of the uniformity of the tax imposed by it. There are also questions in the case which are not raised by the exceptions, and therefore need receive no consideration.
    We might well .have disposed of the case by dismissing the second exception, which attacks the fifth conclusion of law, viz.: That there was no tax due, under the provisions of the
    ordinance, for the year ending April 1, 1902, but that would have left the main question, the question of the power to levy the tax sued for, undecided; and as that question is fairly raised by the exceptions we think the public interests require that it be passed upon. And it is only on account of the public importance of the question that we see fit to add anything to the learned discussion of the referee.
    The exceptions are dismissed, and judgment is directed to be entered in accordance with the order of the referee.

      Error assigned was the order of the court.

      David J. Davis, city solicitor, and E. B. Van Deusen, assistant city solicitor, for appellant.
    — The ordinance is constitutional within the purview of aíticle XIX, sec. 1, of the constitution : Williamsport v. Wenner, 172 Pa. 173 ; Com. v. Clark, 195 Pa. 634 ; Duffy v. Phila., 42 Pa. 192 ; Butler’s App., 73 Pa. 448 ; Allentown v. Gross, 132 Pa. 319 ; Providence Bank v. Billings, 29 U. S. 514; Stanislaus County v. San Joaquin, etc., Canal, etc., Co., 192 U. S. 201 (24 Sup. Ct. Repr. 241) ; Covington, etc., Turnpike Co. v. Sanford, 164 U. S. 578 (17 Sup. Ct. Repr. 198) ; Mayor, etc., of New York v. Twenty-third St. Ry. Co., 113 N. Y. 311 (21 N. E. Repr. 60) ; Dow v. Beidelman, 125 U. S. 680 (8 Sup. Ct. Repr. 1028) ; Allentown v. Gross, 132 Pa. 319; Hadtner v. Williamsport, 15 W. N. C. 138 ; Com. v. Canal Co., 123 Pa. 594 ; Com. v. Brewing Co., 145 Pa. 83 ; Com. v. National Oil Co., 157 Pa. 516 ; Farrington v. Tenn., 95 Ü. S. 679; Shelby County v. Union, etc., Bank, 161 U. S. 149 (16 Sup. Ct. Repr. 558); Ætna Fire Ins. Co. v. City of Reading, 119 Pa. 417 ; Kittanning Electric Light, etc., Co. v. Kittanning Boro., 11 Pa. Superior Ct. 31.
    April 15, 1907 :
    Willard, Warren $ Knapp, for appellee.-
    — The fee or tax levied by this ordinance is not uniform : Pittsburg Rys. Co. v. Pittsburg, 211 Pa. 479 ; Reading R. R. Co. v. Pennsylvania, 82 U. S. 284; State v. Philadelphia, etc., R. R. Co., 45 Md. 361; Com. v. Fall Brook Coal Co., 156 Pa. 488; Com. v. Manor Gas Coal Co., 188 Pa. 195; Scranton v. Scranton Electric Light & Power Co., 8 Pa. C. C. Rep. 626; Pittsburg’s Appeal, 123 Pa. 374 ; West Chester Gas Co. v. Chester County, 30 Pa. 232.
   Opinion by

Rice, P. J.,

The ordinance in question was approved on November 4, 1901, and by its express terms was to take effect on the first Monday of April, 1902. It provides that every person, firm and corporation engaged in or about to engage in any calling, vocation or business named in the ordinance shall procure a license from the city treasurer and pay for the same a certain percentage annually of gross receipts. Electric light companies are required to pay two per cent, of their gross receipts. The second section provides that all license taxes shall be due the first Monday of April in each year, and if not paid before the first day of June next ensuing a penalty of five per cent, shall be added ; further, that all the persons required to pay a percentage of their gross earnings shall furnish to the city treasurer a statement showing the amount of business done “ for year ending June 1, before the payment of the license tax shall become due and payable, and on the first of June in every year thereafter .... and license fees collected by tbe city treasurer shall be based on said return.” Upon September 16,1903, the defendant, in compliance with the request of the city treasurer, furnished to him a statement of its gross receipts for the twelve months ending June 1, 1902, and upon the amount thereof the city treasurer assessed a license tax of two per centum; for which, with a penalty of five per cent., this suit was brought. The first question to be considered is whether the tax became due and payable on the very day the ordinance went into effect. As the tax is made payable on the first Monday of April and is based on a statement of the gross receipts of the company for the year ending June 1, preceding, “the gross receipts for the year ending June 1,1902, could be the basis of no other tax than that which was due the first Monday of April, 1903 ” as the learned referee well says. We see no escape from his conclusion, which was approved by the learned court below, that no tax was due for the year ending April 1, 1902, the period covered by this action. Nor, even if it be assumed that the tax for each fiscal year is payable in advance, can we see how the ordinance can be so construed as to make a statement -of gross earnings for the year ending June 1, 1902, the basis of taxation for the fiscal year which began on April 1, preceding. The ordinance clearly contemplates that the tax due on the first Monday of April shall be based on the . gross receipts for the year ending the preceding June; therefore, whether we regard the first Monday of April as the beginning or the end of the year for which the tax is exacted, the referee and the court were right in holding that the present action cannot be maintained.

The important question raised by the exceptions and assignments of error and discussed in the-report of the referee and the opinion of the court, as well as by counsel upon both sides in the printed briefs upon which the case was submitted, is whether the ordinance is a valid exercise of the taxing powers conferred on cities of the second class. We agree with counsel for the appellant that the question involved is one of great interest to all cities of the second class and public service corporations operating therein, and invites the most careful consideration. The power to impose a license tax upon the gross receipts of such corporations is supposed to be derived from section 4, article 3, of the act of May 7, 1901, which reads: “ 4. Every city of the second class shall have power, for general revenue purposes, to levy and collect a license tax, to be fixed by ordinance, upon street railways, hack drivers, auctioneers, and all and every corporation, company or individual doing business in said city, payable annually, and to regulate the collection of the same.” This section of the act was under consideration in the recent case of Pittsburg Railways Co. v. Pitts-burg, 211 Pa. 479, and the three cases which immediately follow it. It was there held that a tax imposed by a city of the second class of twenty-five cents per foot for each lineal foot of track laid, maintained or operated by a street railway within the city, exclusive of such tracks as may be in its yards or buildings, is a property tax and not a license tax or fee within the meaning of the section of the act of 1901, above quoted, although so designated in the ordinance. The difference between the two cases as to the basis upon which the amount of the tax is to be computed does not, in our judgment, distinguish them in principle. Indeed, it would seem that a tax or fee measured by the extent and manner |n which a street railway company occupies the streets of a municipality might more appropriately be imposed under a power to collect a license tax, than a tax or fee measured by the gross receipts of the company. A full consideration of the cases cited in the briefs of counsel leads us to the conclusion that the referee and court were right in holding that the power delegated to a municipality to collect license taxes, even for revenue purposes, cannot be construed to include a tax upon gross receipts. Their conclusion is so well supported by the report of the learned referee and the opinion of the learned judge overruling the exceptions thereto as to render it unnecessary for us to do more than to state our concurrence therewith.

In view of the foregoing conclusions upon the two points suggested we need not consider the question whether the taxes levied under the ordinance are in violation of séctiori 1,- article 9 of the constitution relative to uniformity of taxation.

Judgment affirmed.


author: Morrison, J.,

text:
    Hymen, Appellant, v. Gatta.

      Deed — Unrecorded deed — Possession—Notice.
    An unrecorded deed, with possession taken thereunder and maintained, is sufficient notice to subsequent purchasers.
    Where a deed calls for the line of a railroad right of way, and there is no evidence to establish any monuments or marks on the ground, the call in the deed prevails.
    Where there are no marks or monuments on the ground, the location of a line called for in a deed must be fixed by surveying the courses and distances.
    Argued March 5, 1907.
    Appeal, No. 14, March T., 1907, by plaintiff, from judgment of G. P. Sullivan Co., Dec. T., 1905, No. 81, on verdict for defendant in case of Louis J. Hymen, now to use of Nettie Hymen v. Louis Gatta and Jennie Gatta.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Ejectment for land in Cherry township. Before Terry, P. J.
    The opinion of the Superior Court states the case.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      E. J. Mullen, for appellant.
    — Where there are no monuments upon the ground to indicate the boundaries of a railroad company’s right of way, and there is no survey on record or elsewhere to define such boundaries, the extent of the actual occupancy must determine the limits of the right of way: Zahn v. Railway Co., 184 Pa. 66.
    The outstanding title which a defendant in an ejectment may set up to protect his possession must be such as would be available in favor of the party in whom it is alleged to exist: Wray v. Miller, 20 Pa. 111; Riland v. Eckert, 23 Pa. 215; Foust v. Ross, 1 W. & S. 501; Putman v. Tyler, 117 Pa. 570.
    Even if the better outstanding title be shown by the evidence of the plaintiff himself, he must fail in his suit: Kennedy v. Skeer, 3 Watts, 95.

      April 15, 1907 :

      J. G. Scouton, for appellee.
    — Possession of land is always constructive notice of the actual title of the person in possession : Harris v. Bell, 10 S. & R. 39; Krider v. Lafferty, 1 Whart. 303 ; Barnes v. McClinton, 3 P. & W. 67 ; Coleman v. Reynolds, 181 Pa. 317; Rook v. Greenwalt, 17 Pa. C. C. Rep. 642.
    That a railroad company has a right to the exclusive possession of the land embraced within its right of way cannot be doubted : Pittsburg, etc., Railway Co. v. Peet, 152 Pa. 488 ; City of Reading v. Davis, 153 Pa. 360.
    The controlling question in this case is as to the boundary of the railroad company’s right of way. All the evidence upon that subject places the line thirty-three feet from the center of the track.
   Opinion by

Morrison, J.,

At the trial of this action in ejectment the learned court gave a binding instruction in favor of the defendants, and having entered judgment thereon the plaintiff, Nettie Plymen, appealed. The question is, was the learned court warranted in giving a binding instruction in favor of the defendants ? In our opinion the instruction was right, and the case is controlled by a few well-settled principles of law.

In 1858, John A. Funston became the owner of a small tract of land in Cherry township, Sullivan county, of which the lot in dispute is a part. In 1870 or 1871, while Mr. Funston was still the owner of said land, the State Line & Sullivan Railroad, now operated by the Lehigh Valley Railroad Company, was located across said land, and its right of way has been occupied and maintained ever since. The width of the railroad right of way seems to have been fixed at sixty-six feet, and the boundaries established, as shown by the testimony of surveyor Smith, who was one of plaintiff’s witnesses. About the time the railroad was constructed Mr. Funston plotted his land, and upon that plot allowed sixty-six feet for the railroad right of way. In the conveyance of his plotted lots Mr. Funston called for the railroad grant as an adjoinder. The land claimed by the plaintiff is supposed to lie between the line of the railroad grant and the line of a lot of land conveyed by John A. Funston and wife to John Schaad, by deed dated July 14, 1894; that deed describes the land by metes and bounds, and plainly calls for the line of the right of way of the railroad as an adjoinder. Buildings were erected on the Shaad lot, and the defendants were in possession thereof at the time of the bringing of this suit, and for several years prior thereto, and prior to the date of the deed from Charles. W. Funstou, attorney in fact, for the land described in the plaintiff’s writ. The latter deed was dated August 22, 1905, and it purports to convey a strip of land bounded, on the one side, by the line of the Schaad lot, and on the opposite side by a ditch which the plaintiff alleges is the boundary line of the railroad company’s right of way. There was some contention at the trial as to whether the railroad right of way was sixty-six feet wide or a less distance. If, as testified to b}^ surveyor Smith, the true railroad line was thirty-three feet from the center of the tract, then the buildings on the Schaad lot are partially located on the railroad premises.

The plaintiff contends that she has a good title to the land described-in the deed of August 22, 1905, because the (deed to Schaad of July 14, 1894, had not been recorded at the date of her deed. But buildings were erected on the Schaad lot long before August, 1905, and these buildings were occupied by the defendants. Therefore, it became the dutj^ of the plaintiff, when about to purchase the land described in the deed of August 22, 1905, to inquire of the occupants of the Schaad lot as to the nature and character of their title and possession.

An unrecorded deed, with possession taken thereunder and maintained, is sufficient notice to subsequent purchasers. It is to be presumed that if the plaintiff had inquired of the defendants she would have been informed of the unrecorded deed to John Schaad: Krider v. Lafferty, 1 Wharton, 303; Harris v. Bell, 10 S. & R. 39.

It is conceded that the plaintiff’s deed of the land in question is under John A. Funston’s title ; in other words, that the John Schaad deed and the one to Lewis J. Hymen are from a common source of title. We think that the plaintiff’s witness, surveyor Smith, clearly established that there was no vacant land between the Schaad lot and the right of way of the railroad company; that John A. Funston, in his lifetime, recognized the right of way of the railroad company is beyond all question of dispute. The deed to John Schaad plainly calls for the line of the railroad right of way. Therefore, it is immaterial what the width of the right of way actually is, and it is equally immaterial what the depth of the Schaad lot is, because the evidence does not establish any monuments or marks on the ground to stop the lines of the Schaad lot from running to the railroad line — the call in the deed.

The proposition that where there are no marks or monuments on the. ground, the location of a line called for in a deed must be fixed by surveying the courses and distances, is settled by a long line of cases, from Blasdell v. Bissell, 6 Pa. 258, to Marcy v. Brock, 207 Pa. 95. Those cases just as clearly settle the law that where there are actual lines of demarcation fixed on the ground they must control. See Eshleman v. Ran-, kin, 32 Pa. Superior Ct. 254.

When John A. Funston conveyed to John Schaad by a deed calling for the railroad right of way as a boundary, there being no other marks or monuments to fix the line, it must go to the railroad line, and, therefore, we are not concerned whether the railroad company is limited by the ditch referred to by the witnesses or by a line extending thirty-three feet from the center of its track. In our opinion, the defendants established an outstanding title under the deed to John Schaad which covered the land in dispute, and this clearly appeared from all of the testimony in the case, and, therefore, the learned court did not err in directing a verdict for the defendants and entering judgment thereon.

The assignment^ of error are dismissed and the judgment is affirmed.


author: Beaver, J.,

text:
    Lycoming County, Appellant, v. Straub.

      Tax collector — Bond—Surety—Payment—Judgment—Execution.
    Where a county enters up a judgment against a tax collector and his surety, and issues execution, and the surety pays a balance claimed on the judgment, and the surety is informed when he makes the payment that this was all that the tax collector owed the county, the county cannot thereafter, and after the death of the tax collector, enter a second judgment against the surety, and maintain such judgment, ‘without showing that there had been an error in the original judgment. On the trial of an issue to determine the validity of the second judgment, the county treasurer's declarations made to the surety at the time of the payment of the balance on the original judgment, are admissible as against the county.
    April 15, 1907:
    Argued March 7, 1907.
    Appeal, No. 15, March T., 1907, by plaintiff, from order of C. P. Lycoming Co., March T., 1898, No. 134, directing judgment for defendant non obstante veredicto in case of Lycoming County v. John Straub.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Issue to determine the validity of a judgment. Before Hart, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict for plaintiff for $331.88.
    The court subsequently entered judgment for defendant non obstante veredicto.

      Errors assigned were (1) in overruling objection to the declarations of the county treasurer; (2) portion of the opinion of the lower court quoted in opinion of the Superior Court.

      J. F. Strieby, for appellant,
    cited : Harbaugh v. Butner, 148 Pa. 273; Zinnel v. Bergdoll, 9 Pa. Superior Ct. 522; Miller v. City of Bradford, 19 Pa. Superior Ct. 297.

      Charles J. Reilly, with him Jos. R. Straub, for appellee.
   Opinion by

Beaver, J.,

On November 14, 1893, a judgment was entered by the county of Lycoming upon the transcript or certificate of the county commissioners, against George Getler, as tax collector of state and county taxes for the fourth ward of the city of Williamsport, for the said year 1893, for the sum of-$9,016.99, the full amount of the0 duplicate charged to said collector for said j'-ear.

On May 10, 1897, a fi. fa. was issued on said judgment for $3,399.19, the balance of taxes for said year (1893) then claimed by the county of Lycoming to be due and owing from the said George Getler. • The whole amount for which the said fi. fa. was issued is alleged to have been paid to the county, either by Getler, by a sale of his property, or by his bail. Of this sum, John Straub, the defendant, as one of the bail for said Getler, on October 29, 1897, paid the sum of $547.44, a receipt for which was given him by the treasurer of the county. Straub testifies that,- when he paid this balance, the county treasurer informed him that this was all Getler owed the county. It is alleged that since that payment Getler has died.

Subsequently, December 23,1897, the solicitor of the county, upon a statement made by the treasurer, accompanied by a copy of the bond of Getler, entered judgment against Getler and Straub for the sum of $217.48, upon a warrant of attorney contained in the bond, the amount for which judgment was entered being claimed as a balance due the county from Getler, as tax collector aforesaid. Upon Straub’s application, the judgment was opened and an issue formed, to determine what, if anything, was due from Straub, as the bail of Getler, to the county. A verdict was directed for the plaintiff by the court below and the trial judge, on a reserved ^oint, entered judgment for the defendant n. o. v.

Upon the trial, the defendant was offered as a witness to prove that, at the time he paid the balance upon the fi. fa., issued upon the judgment entered against Getler for the full amount of his duplicate, the county treasurer to whom he paid the balance told him, when he gave the receipt, that the payment settled Getler’s indebtedness to the county in full. The objection was that the treasurer’s declarations were not evidence, “ not being in the presence of the county or any authorized agents of the county.” The testimony of the witness was admitted, on the ground, as stated by the court, that “ he (the county treasurer) was the authorized agent of the county to receive the taxes from the tax collector.” In this we think there was no error.

By the provisions of the Act of April 15, 1834, P. L. 537, sec. 37, it is made, “ the duty of every county treasurer to receive all moneys due or accruing to the county, and to pay the same on warrants drawn by the commissioners. The county treasurer was, therefore, the only person legally authorized to receive the money due the county, was by virtue of his office its representative or agent, and the testimony was, therefore, entirely competent.

The second assignment of error is based upon the clause in the opinion of the court, entering judgment for defendant n. o. v., as follows: “ The contention of the defendant is, that having shown that the full amount of the judgment entered by the county plaintiff against George Getler to No. 405, December Term, 1893, as tax collector, on the duplicate of 1893, was paid by George Getler and by John Straub, his bail, the burden was thereby cast upon the county plaintiff to show, either in chief or by way of rebuttal before the plaintiff could recover, that there had been an error in this original judgment or fi. fa. issued thereon. In this contention we believe the defendant is right.” The original judgment having been entered for the full amount of the duplicate of the tax collector and a fi. fa. issued thereon for the alleged balance due, which said balance was admittedly fully paid, it seems to us clear that the county could not recover upon practically the same cause of action, without in some way showing that there had been an error in the amount for which the said fi. fa. was issued.

Independently of the testimony of the defendant that the treasurer informed him that his payment, as bail for Getler, was in full of his (Getler’s) indebtedness to the county, we think he had a right to presume that the execution issued by the county was for the full balance due from Getler upon his duplicate. If the fi. fa. was for a less amount than was due, it was a wrong to the bail, for, Getler being then living and having property, the full amount due might have been made on the execution. Whether the county was estopped by its action in this behalf we need not now consider, but surely it could not recover against the bail without showing that some error in calculation or otherwise had been made at the time the execution was issued. Having failed to do this, it seems to us it failed in a vital point in its case and could not recover. It follows, of course, that judgment was properly entered n. o. v. for the defendant.

The court in its opinion recites certain facts as having been established which would have been fairly for the jury, if the plaintiff had made out a prima facie ease, or after the record of the judgment against Getler had been introduced in evidence had rebutted the presumption which arose from the issuing of the fi. fa. thereon and the payment of the amount claimed thereby. So in regard to the testimony of the defendant as to the declarations of the treasurer as to his payment being in full of what Getler owed the county. These are in no way material to the final disposition of the case; and, even if the court was in error in assuming that they were established, without their submission to the jury, they in no way interfere with the integrity of the conclusion reached and the entry of the judgment n. o. v. for defendant.

Judgment affirmed.


text:
    Phillips, Appellant, v. Crist.

      Estoppel — Statement as to boundary of land — Executors and administrators — Orphans’ court sale.

    Where at an orphans’ court sale for the payment of decedent’s debts, the executor publicly states that the land sold extends to a particular line named, and it appears that in the petition for the sale, and in the advertisements thereof, the same line is designated as a boundary, the executor is estopped from subsequently asserting that the land did not extend to the line designated, where such assertion is in favor of an individual title in himself.

      Deed — Boundaries—Description—Quantity.
    Quantity is not decisive in determining title. Description of land by qauntity does not amount to a covenant that the land shall equal the quantity mentioned in the deed. The grantee has a right to all the land within the boundaries.

      Ejectment — Pleading—Estoppel—Evidence.
    The proper plea in ejectment is “not guilty,” and under this plea the defendant may avail himself of the defense of estoppel, and he may do this by oral testimony.
    Argued March 7, 1907.
    Appeal, No. 13, March T., 1907, by plaintiff, from judgment of C. P. Lycoming Co., Sept. T., 1901, No. 314, on verdict for defendant in case of David C. Phillips v. Charles B. Crist.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.

      Ejectment for land in Franklin township. Before Ormerod, P. J., specially presiding.
    The facts are stated in the opinion of the Superior Court.
    The defendant presented, inter alia, thé following points:
    5. If the jury find from the evidence in this case that the executors of Philip Crouse, deceased, and the trustees of Hiram Crouse, deceased, being the same persons, at the time of the sale of the land conveyed to G. B. Crist, stated to the bidders that they were then selling all the land belonging to these estates of Philip Crouse and Hiram Crouse, and particularly pointed out that this would include the land described in the plaintiff’s writ, and that the sale was so made to the defendant, then their verdict should be for the defendant. Answer: This point is affirmed, if the jury find that the plaintiff, D. C. Phillips, made such statements to the defendant, and the defendant relied upon such statements in making his purchase. [13]
    6. If the jury believe that the plaintiff induced the defendant to make the purchase which he did make by stating that the land in dispute was included in that purchase, then the plaintiff is estopped from now claiming otherwise, and the verdict must be for the defendant. Answer: This point is affirmed. [Ü4]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned among others were (13, 14) above instructions, quoting them.

      Thomas M. B. Sicks and William E. Crawford, for appellant.
    —The plaintiff would most certainly deny that he made at the time of the sale, or any other time, any such statements as were attributed to him by the defendant and his witnesses. But there was no notice to the plaintiff that the testimony was admitted and was to be submitted to the jury for the purpose of establishing an estoppel, and, under the advice of his counsel, he properly refrained from offering in rebuttal evidence upon an issue which was not in the case.

      C. Larue Munson, of Candor $ Munson, and Savvey W. Whitehead, for appellee.
    — The plaintiff is estopped from denying that the defendant’s title includes the land up to the Dugan line: Kellerman v. Miller, 5 Pa. Superior Ct. 443; Root v. Crock, 7 Pa. 378.
    April 15, 1907:
   Opinion by

Morrison, J.,

We find no real dispute of fact in this case and the appeal must be determined upon legal principles. The learned court below submitted the case to the jury on the question of estoppel, practically instructing the jury that if they believed the defendant’s testimony in connection with the papers in the case referred to, the plaintiff could not be heard to deny that the land in controversy was included in the sale made to the defendant by the executors and trustees in pursuance of an order of court made March 4, 1901.

Philip Crouse, John Crouse and Hiram Crouse were bachelor brothers, living together and occupying land in common, though in somewhat diverse ownership. In 1856 they bought jointly the Frick tract, and later, Philip, alone, purchased the adjoining Fiester lot. These lots and the disputed land are shown on the plot inserted at the end of this opinion. Hiram died first, intestate; John died next, having devised all his property to Philip, and lastly, Philip died, intestate, owning all the Fiester and sixteen twenty-firsts of the Frick tracts.

The plaintiff, D. C. Phillips, was one of the executors of the will of Philip Crouse and applied to the orphans’ court for an order to sell his real estate for the payment of debts. The petition for the.sale describes the Fiester tract as bounded bj' the land of Dugan on the west, and it also asks to sell the undivided interest of Philip in the Bhick tract. In the meantime, there was an application to partition the real estate of Hiram Crouse, consisting of undivided interests only, and was so proceeded in that in time an order of sale was made to D. C. Phillips, and his coexecutor, Oscar Ikler, as trustees. The order of sale in Philip’s estate, under the order of the court, was held in abeyance until Hiram’s interest could be sold by these trustees, and the final order made directed Di C. Phillips and Oscar Ikler, executors and also trustees, to sell together both the land of Philip and the undivided interest of Hiram. The executors and trustees advertised the sale and expressly stated that there will be sold the interest of both Philip and Hiram “ so that the purchaser of any or all of said real estate will acquire complete title to Ms purchase.” In all of the papers relating to the sale, to wit: the petition, sales bill, report of sale and deed to C. B. Crist, the defendant, the land purchased by him is always described as “ bounded westerly by the land of Alfred Dugan.”

It is very certain that the plaintiff cannot recover in this action if the land purchased by the defendant runs west to the Dugan line. In addition, to the papers in the case, it was proved at the trial by the defendant and by four other witnesses, in substance, that at and before the sale of the land to the defendant, David C. Phillips, executor and trustee, stated distinctly that the Fiester lots which were being sold extended west to the Dugan line; that there was valuable timber on this land which is now in dispute, and that it was on the Fiester lots because they extended through to the Dugan line. The papers and the oral testimony of these witnesses is overwhelming evidence that the present plaintiff represented at the sale that the purchaser of the Fiester lots would get title westerly to the Dugan line. This oral testimony given at the trial in the presence of the plaintiff, and although he was twice upon the stand as a witness, he did not deny having made such representations. From the whole case we conclude that at the time he was making the sale as executor and trustee, he believed and understood that the disputed land marked on the plot was a part of the Fiester lots. At the sale referred to, Crist, the defendant, bought the Fiester property and received a deed therefor, describing the property as “ bounded northerly by lands of William Megargel and Ira ITouseknecht, easterly by lands of Philip Crouse and the estate of Hiram Crouse, southerly by the same, and westerly by land of Alfred Dugan, containing sixty acres of land more or less, and known as the Fiester tract.” The purchase price was $1,705. The evidence tends to show that about three-fourths of the value of the land was in the timber standing upon the disputed land. At the same sale, after Crist had made his purchase, T. M. B. Hicks, bought what is described in Ms deed as the “Frick purchase,” and received a deed therefor in June, 1901, and one month later conveyed it to the plaintiff, who is the same D. C, Phillips who sold the property, as executor and trustee, to the defendant on the inducements and representations above referred to. Fourteen days later, Phillips brought this action of ejectment and claims the land from what appears on the plot as the west end of the Fiester plot to the Dugan line, thus denying that the defendant’s purchase goes to the latter line.

Whether or not, under the executors’ and trustees’ sale, the defendant actually acquired a good title to the land in dispute, may be open to discussion. We do not, however, feel called upon to decide that question; If the learned court below was right in ruling upon this question of estoppel, the judgment should be affirmed, otherwise it should be reversed. The learned counsel for the plaintiff, who purchased the Frick lot and within a month conveyed it to Phillips, saw fit to assure us several times in his oral argument that he did not buy the land for Phillips. We do not consider this a controlling question. But when he conveyed the land to the plaintiff, and he brought this ejectment, the question is squarely raised as to whether he is estopped from ■ asserting title to the disputed land as against the defendant. The counsel argues that under the pleadings, the defendant could not avail himself of the ground of estoppel, and that no notice was given during the trial that the defendant would rely on estoppel. An examination of the record shows that the counsel is mistaken. He raised estoppel himself in an objection to testimony, and the learned court expressly ruled on this question during the trial. The' record shows that the court held, during the trial, that the declaration of the plaintiff in reference, to the boundaries of the lot, if made in the presence of the defendant, were competent for the purpose of estoppel.

The learned counsel contends that the pleadings ought to have notified the plaintiff that the defendant would rely on estoppel. The abstract of title of the defendant shows that the deed of the plaintiff to him included the land to the Dugan line and this was substantial notice that the defendant relied on estoppel by deed. The Frick purchase was a common source of title' — nobody contending that the disputed land was not, at one time, a part of the Frick purchase. Therefore, when the defendant gave notice in his abstract of title that he claimed to the Dugan line, it must have suggested, to any lawyer at least, that he was relying on estoppel. But is there any difficulty in the way of the oral testimony showing estoppel under the plea of not guilty?

In.Bruner v. Finley, 211 Pa. 74, the Supreme Court held that the proper plea in ejectment is “ not guilty,” and under this plea the defendants can avail themselves of the defense of res adjudicata.

In the present case, the defendant’s counsel must have been well aware, during the trial, that the defense was relying on estoppel, and they saw fit to go through with the trial and not raise the question of surprise and ask for a continuance when the court ruled that such evidence was admissible. If there had been merit in this contention, the defendant ought to have been allowed to amend his answer, and if that had been done, the plaintiff could have pleaded surprise. We find nowhere in the record any suggestion by the plaintiff of suprise when the learned court held that the defendant might rely on estoppel. (

An argument is also made in regard to the quantity included within the boundaries contained in the deed to the defendant. These seem to increase the quantity of the Fiester lot, proper, about thirty acres. The deed and papers describe the land as containing sixty acres, more or less. But it is well decided that quantity is not decisive in determining title. Description of land by quantity does not amount to a covenant that the land shall equal the quantity mentioned in the deed. The grantee has a right to all the land within the boundaries : Large v. Penn, 6 S. & R. 488.

In Miller v. Cramer, 190 Pa. 315, the land was described as containing about four and one-half acres, and known as the Oakley coal bed. The boundaries actually included eighteen acres, but the Supreme Court held that the quantity must give way to boundary lines, and the title to the eighteen acres passed by the deed.

If the plaintiff is not estopped by his description of the land in the sales bills and in the deed, and by the oral statements proved over and over again to have been made by him, that the Feister lots ran west to the Dugan line, then it is difficult to understand where the principle of estoppel can be used as a defense.

In Kellerman v. Miller, 5 Pa. Superior Ct. 443, we held as stated in the syllabus: “ An administrator who sells land by virtue of authority granted by the orphans’ court on petition for leave to sell for payment of debts, is estopped from asserting an individual title as against that made by him as such administrator. The principle of estoppel applies as against an after-acquired interest.” In that case it was explicitly held that the purchaser acquired the administrator’s individual title by estoppel.

What we decide in the present case is that whether the executors’ and trustees’ sale did, or did not, vest a good title to the disputed land in the defendant, it is a good title as against the plaintiff and those claiming under him, on the ground of estoppel.

The assignments of error are all dismissed and the judgment is affirmed.