filed a dissenting opinion in which Gordon and Sterrett, J. J., concur.
With all due respect for the judgment of the majority of this court, I must dissent therefrom. I will state some of the reasons which move me to this conclusion.
The only question before us is whether the court below erred in not submitting the case to the jury. Although there may have been circumstances proper to consider in mitigation of damages, yet if in any aspect of the case the facts should have gone to the jury, it was error to withhold them.
It is well settled law that 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 libelled may recover damages, unless it be shown that the publication was true, or that it was justifiably made: Pittock v. O’Niell, 63 Pa. St., 253; Barr v. Moore, 87 Id., 385; Neeb v. Hope, 17 W. N. C., 93.
While malice is an essential element in an action of libel, yet that must be understood in its legal signification. It may *420exist in the absence of lawful excuse, and where there may be no ill-will or disposition to injure others. Legal malice alone is sufficient to support an action. If a publication have the other qualities of a libel and it be wilful and not privileged, malice maybe inferred: Id. An act unlawful in itself and injurious to another, is considered to be done malo animo: Pittock v. O’Niell, supra.
Where the words used are of dubious import, they are to be interpreted according to the sense in which they were actually used: Hays v. Brierly, 4 Watts, 392. The words of a libellous publication are to be taken in their natural sense. Words are not to be received in mitiori sensu, but in the plain and popular sense in which the world in general understands them: Lukehart v. Byerly, 53 Pa. St., 418.
It is elementary law that eveiy one who prints or publishes a libel may be sued by the person defamed, and to such an action it is no defence that it was printed or published by the desire or procurement of another, whether that other be made a defendant to the action or not. All concerned in publishing the libel or in procuring it to be published, are equally responsible with the author: Odger on Libel and Slander, *157; Townshend on Slander and Libel, 167.
Tire letter, for the publication of which this suit was brought, contains a strong imputation against the integrity of the plaintiff, and that it was only by his official action and charge to the jury that a specified steal of $200,000 was made possible. He was then serving as judge and was a candidate for re-election — giving to the language of the letter the plain and reasonable sense in which people generally would understand it,, there cannot be any doubt that it imputes to him great misconduct, or degredation of official character. So understood they were libellous per se, and presumptively actionable. To remove this presumption the burden of proof is thrown on the defendant.
It is conceded that the charge against the plaintiff was unqualifiedly false. He gave no charge to the jury in the “ Hart Creek sewer” case, and was not in any manner connected with the trial relating thereto. Admitting this to be so, it is claimed on the part of the defendant that the publication was privileged.
It is certain that the publication in this case was not made under circumstances to be what the law declares to be absolutely privileged. It was not published in any legislative body known to the law; nor was it in any judicial proceedings. At most the occasion could not make the publication any more than a qualified privilege. When a defendant charged with libel, invokes such a protection to shield him from liability *421for that for which he would otherwise be held responsible, he must prove that the occasion and surrounding circumstances made his action justifiable.
The natural right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation: 1 Bl. Com., 134. The security of his reputation or good name from the acts of detraction and slander are rights to which eveiy man is entitled by reason and natural justice. The right to protect reputation is inherent in man. A good reputation is too valuable to admit of its being falsely and wrongfully assailed, without the law giving some redress to the person injured: Barr v. Moore, 87 Pa. St., 385. A reasonable and fair communication of thoughts and opinions is an invaluable right of man, yet a check on such freedom is imposed by the Constitution of this Commonwealth. Thus, Art. 1, Section 7: Thereof inter alia declares that “ every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.” Thus, this right or liberty is not one of unlimited license, but is restrained by a legal responsibility: Barr v. Moore, supra.
That the merits and demerits affecting the qualifications and character of one who is a candidate for a judicial office, as well as of one who is a candidate for any other public office, may be freely discussed and commented on, cannot be successfully questioned. These comments, however, have their bounds and limits. The right to discuss and to comment does not impty a license to falsely charge a person holding a judicial position, who is a candidate for re-election, with a specific act reflecting on his judicial integrity, and calculated to bring him into contempt and ridicule. Whenever a person makes such a charge and claims protection under the name of a qualified privilege, the question of his motive in making it should be submitted to the juiy. In my opinion, it is clear error for the court to decide as matter of law, that there was neither actual nor legal malice to be implied from the false charge.
The well recognized rule of law is correctly stated in Odgers on Libel and Slander, 199. He says, “ If, indeed, there were any means at hand for ascertaining the truth, of which the defendant neglects to avail himself, and he chooses rather to remain in ignorance when he might have obtained full information, there will be no pretence for any claim of privilege.”
.In the present case the defendant was asked by h'isinformant to- “see the charge” of the judge, and to “reflect on the, facts ” shown thereby. In other words, to look at the record and inform himself whether the construction put on the charge by the writer of the letter was correct. That record was conveniently accessible to the defendant. Any such record was *422a public record kept in the centre of this city. The means were readily at hand for him to ascertain the truth. He neglected to avail himself of those means, and omitted to make aiiy inquiry. He chose to remain in ignorance. The slightest examination would have shown that the improper conduct attributed to the plaintiff was false. Then, in the language of the law, there can be “no pretence for any claim of privilege.” If such an allegation had been made against a personal friend of the defendant, it is hardly possible to conceive that he would have spread it before the public, without first having made some effort to verify its correctness. “ The plaintiff, however, is not bound to prove malice by extrinsic evidence. He may rely on the words of .the libel itself andón the circumstances attending its publication, as affording evidence of malice”: Odgers on Libel and Slander, 270. The falsity of the words implies malice: Farley v. Ranck, 3 W. & S., 554; Gorman v. Sutton, 32 Pa. St., 247. As inquiry became the duty of the defendant before publishing the libel, he must be visited with constructive notice of Avliat he could so readily have obtained by réasonable effort.
[This case was argued in the Supreme Court, January 6th, 1835, Clark, J., absent. On January 26th, 1885, the court ordered a re-argument before a full bench. It was re-argued January 6th, 1886. The opinion of the court and the dissenting opinion were delivered January 25th, 1886. Rep.]It may be asked, are the people to be prevented from criticising and discussing the conduct, character and qualifications of a candidate for office? Undoubtedly they are not. They must, however, confine themselves within the limits of truth or permit a jury to pass upon their good faith and motive, when they make a false charge: Starkie on Slander 110.
In an action for libel it is for the court to determine whether the alleged libel is a privileged communication : but the question of good faith, belief in the truth of the statement, and the existence of actual malice, are questions for the jury.
Without elaborating the ease further I earnestly dissent from the action of the learned judge in deciding all these questions as matter of law and in not permitting the jury to pass upon them. •
Justices Gordon and Sterrett also dissent from an affirmance of the judgment and concur in this opinion.