concurring.
I fully agree with the conclusions of the court as stated in the last paragraph of its opinion; but there is a phase of the opinion in which I do not concur.
My view is that the general underlying principle upon which the statement quoted by the court from Newell on Slander and Libel (4th Ed.) 523, is of broader application than that given it either by the author or by the court in its opinion.
There are certain classes of information and degrees of proof that a statement of fact relating to the conduct or work of a public official, with which the public properly has a concern, is true, which a person or a newspaper is excusable for accepting and making the basis of a fair comment and criticism, even though it should ultimately turn out that the statement was not true, provided (1) that he honestly believes the fact stated to be true, (2) that he makes the statement and his comment and criticism based thereon without malice, and (3) that his comment and criticism would be fair were the fact upon which it is based true.
*890The newspaper or person is not an insurer of the truth of the facts stated by him. But he is an insurer that the information, upon which he bases his belief that the fact is true and acts in giving publicity to it, is such as to justify a prudent and careful man, acting with a high degree of good faith and a proper consideration for the rights and reputation of his fellow man, in giving publicity to the things stated by him as facts. The nature of the thing stated by him as a fact has a very material bearing upon the degree of proof or kind of information upon which a person is excusable for acting or giving publicity to it. For instance, one should be held to a higher degree of care where he states that a man has done something which is a heinous offense, than where, he states that he had done something which constitutes only a minor, though reprehensible, dereliction of duty.
An example will make my meaning plainer. Suppose this case: The Auditor of Public Accounts has filed with the Governor an official audit of the financial transactions of an officer of the Commonwealth, in which it is stated that that officer had received $1,000 for which he was accountable but had not accounted. A newspaper, having had its representative examine the audit and honestly believing the facts therein stated to be true, without any actual malice whatever publishes an article stating that the officer had not accounted for all the moneys coming into his hands and should not for this reason be re-elected to office. However, it subsequently develops that the officer had in his possession vouchers showing the correct application of this $1,000; but the Auditor had improperly disallowed the expenditures shown thereby. The facts upon which the comment or criticism sought to be excused would not exist; but in my opinion the foundation for the defense of privilege of fair comment and criticism would not have failed. There would be sufficient basis for the statement to excuse the newspaper for making it and to constitute a complete defense to an action for libel.