Smith v. Times Publishing Co.

Opinion by

Mb,. Justice Mitchell

The charge of the learned trial judge to the jury is not before us, and the assignments of error in regard to it must be dismissed for this reason. The filing of the stenographer’s notes of the charge, and printing it in the paper-book will not make it part of the record. It must affirmatively appear that the filing was the act of the judge himself, or by his express direction evidenced by his signature either to the charge itself or to the bill of exceptions. This has been so explicitly and so repeatedly decided within the last few years that it ought not to be necessary to say it again: Pool v. White, 171 Pa. 500; Com. v. Arnold, 161 Pa. 327; Hill v. Egan, 160 Pa. 119; Connell v. O’Neil, 154 Pa. 582. The case of Janney v. Howard, 150 Pa. 339, has been so persistently misapplied that it seems almost hopeless to endeavor to set the profession right in regard to it. What that case decided was that when the charge was properly filed it became by virtue of the act of March 24, 1877, P. L. 38, a part of the record for the purpose of assignment of errors although the exceptions had not been made in the court below, as required by previous practice. The case is authority for this construction of the act of 1877 but decided nothing further. An inadvertent expression in the opinion however that errors may be assigned “ to any part of a charge which has been filed with or without request ” fell in so conveniently with the indolence or carelessness of some practitioners that it has been constantly harped upon since as if it meant that this court would take judicial notice of the charge without inquiring how it came before us, and this idea still persists notwithstanding the explicit and reiterated rulings to the contrary in the cases already referred to. Fries v. Null, 154 Pa. 573, and Grugan v. Phila., 158 Pa. 337, followed Janney v. Howard as to the assignment of errors-to a charge properly filed, but did not go beyond that, and so far as Janney v. Howard appears to give countenance to anything further it is now definitively overruled, and is not to be cited again as authority on that point.

In the case before us owing no doubt to the defendants having left the court room before the charge was delivered the judge was not asked to file it, and although he signed a bill of exceptions to the evidence and his rulings thereon, he did not include the charge. It is therefore no part of the record, and the assignments of error to it must be dismissed.

There remain the exceptions based on the amount of the verdict. This is a matter which has not been within our province to consider, until it'was made so by the act of May 20, 1891, P. L. 101. It is a new power, a wide departure from the policy of centuries in regard to appellate courts, and so clearly exceptional in character that no case has been presented until now, in which we have felt called upon to exercise it. But the duty has been put upon us by the law-making authority of the state, and'we must perform it in accordance with the spirit of the enactment. The argument against the constitutional validity of the act has had the most deliberate consideration, but we do not think it can prevail.

The provision of the constitution is that “ trial by jury shall be as heretofore, and the right thereof remain inviolate.” The same or very similar language is contained in the constitution of nearly every state, and the uniform construction by judges and text writers has been that the phrase “ shall be as heretofore ” -refers to the method of trial itself and means that it shall be preserved with its substantial elements, while the second phrase, “the right thereof shall remain inviolate ” refers to the right to a jury trial before the final decision in all cases where it would have existed at the time of the adoption of the constitution. “ The object of the provision ” says Shabswood, J., “was.to preserve the jury as a tribunal for the decision of all questions <of fact:” Wynkoop v. Cooch, 89 Pa. 450. “The general idea intended to be conveyed by the constitutional guarantee of the trial by jury undoubtedly is that all contested issues of fact shall be determined by a jury, and in no other way. ... It was not intended to tie np the hands of the legislature so that no regulations of the trial by jury could be made, and it has been held that the provision is not violated so long as the trial by jury is not substantially impaired, although it be made subject to new modes: ” Sedgwick on Stat. and Const. Law, 2d ed. 496. “Trial by jury is by twelve free and lawful men who are not of kin to either party, for the purpose of establishing the truth of the matter in issue. . . . Any legislation which merely points out the mode of arriving at this object but does not rob it of any of its essential ingredients, cannot be considered an infringement of the right: ” Dowling v. The State, 5 Sm. & M. 685. The definition of a jury adopted by so distinguished a jurist as Mr. Justice Miller, though more elaborate than this, is not materially different, Miller, Lectures on the Constitution 511, and all the authorities agree that the substantial features, which are to be “ as heretofore,” are the number twelve, and the unanimity of the verdict. These cannot be altered, and the uniform result of the very numerous cases growing out of legislative attempts to make juries of less number, or to authorize less than the whole to render a verdict, is that as to all matters which were the subject of jury trials at the date of the constitution, the right which is to remain inviolate, is to a jury “ as heretofore ” of twelve men who shall render a unanimous verdict. Matters not at that time entitled to jury trial, and matters arising under subsequent statutes prescribing a different proceeding, are not included. “ The constitutional provisions do not extend the right, they only secure it in cases in which it was a matter of right before. But in doing this they preserve the historical jury of twelve men, with all its incidents : ” Cooley, Const. Limitations, 504 (ed. 1890), and see Black on Const. Law, 451 and cases there cited.

The constitutional provision does not however go beyond the essentials of the jury trial as understood at the time. It does not extend to changes of the preliminaries, or of the minor details or to subsequent steps between verdict and judgment. The jury as an institution, has been frequently commented upon by the most learned historians as one of the most remarkable in the history of the world, for the length of time which it has existed and the zealous care with which it has been cherished by the English speaking race. But while its essential features have been preserved it has undergone grSat changes in all other respects. Originally the sworn twelve were witnesses as well as jurors, and they were summoned from the vicinage on account of their knowledge of the case or its surroundings. Forsyth, Trial by Jury, ch. 7, sec. 3. The very qualifications which originally put them in the box, would now be generally held to exclude them, and send them, instead, to the witness stand. The jury is above everything a practical part of the administration of justice, and changes of non-essential features, in order to adapt it to the habits and convenience of the people have therefore always been made without hesitation even in this country under the restrictions of the constitutions.

The preliminary pleadings and mode of making up the issue are no part of the jury trial itself. The affidavit of defense law, now of general application in this state to actions ex contractu, originated by agreement among the members of the bar, (see 3 Weekly Notes, 567), but there were two, according to Chief Justice Tilghman who thought it an infringement of the right of trial by jury and therefore never gave or took judgment under it. The Supreme Court had no such difficulty: Vanatta v. Anderson, 3 Binn. 417. Constitutional scruples however or the lack of other pegs on winch to hang a writ of error, brought the question up again after the adoption of the present constitution, and this Court again found no violation of the right: Lawrence v. Borm, 86 Pa. 225. So the statute for compulsory nonsuits though a change in the jury trial, was held not an infringement of the right: Munn v. Mayor of Pittsburg, 40 Pa. 364; and other changes, such as the qualifications of the jurors themselves, the vicinage from which they shall come, the mode of selecting and summoning them, the regulation of venires, and notably, even the matter of challenges: Warren v. Com., 37 Pa. 45, have been held to be within legislative control. In the case last cited, the whole subject of the constitutional provision, and the changes in jury trial under it, receives a very full and comprehensive discussion from Chief Justice Thompson. He quotes Chief Justice Tilghman in Biddle v. Com., 13 S. & R. 405, that the act for collection of a license fee by suit before a justice without a jury was not unconstitutional because it required an affidavit that injustice had been done, before an appeal could be taken to the common pleas, “ laws such as these promote justice and leave the existence of trial by jury unimpaired, and that is all that is required by the expression in the constitution that trial by jury shall be as heretofore.” Chief Justice Thompson then proceeds: “ It is a mistake that is often made, to suppose that every modification of its accompanying powers detracts from the right. This is too narrow and rigid a rule for the practical workings of the constitution and the rights guaranteed by it in the particular in question. There is no violation of the right unless the remedy is denied, or so clogged as not conveniently to be enjoyed. . . . The framers of the constitution . . . undoubtedly knew and intended that legislation must provide the forms under which the right was to be enjoyed, and they meant no more than that it should be enjoyed under regulations which should not take away the right.” And fin Haines v. Levin, 51 Pa. 412, the same principle is reiterated by Chief Justice Agnew : “ The great purpose of the constitution in providing that ‘ trial by jury shall be as heretofore, and the right thereof remain inviolate ’ was not to contract the power to furnish modes of civil procedure in courts of justice, but to secure the right of trial by jury in its accustomed form before rights of person or property shall be finally decided,” id. p. 414.

The act of 1891 makes no change in the trial itself, nor does it deny the right. All that it does is to provide for another step between the verdict and final judgment, of exactly the same nature and the same effect as the long established power of the lower courts. The authority of the common pleas in the control and revision of excessive verdicts through the means of new trials was firmly settled in England before the foundation of this colony, and has always existed here without challenge under any of our constitutions. It is a power to examine the whole case on the law and the evidence with a view to securing a result not merely legal, but also not manifestly against justice, a power exercised in pursuance of a sound judicial discretion without which the jury system would be a capricious and intolerable tyranny which no people could long endure. This court has had occasion more than once recently to say that it was a power the courts ought to exercise unflinchingly. It has never been thought to be confined to the judge who heard and saw the witnesses, but belongs to the full court in banc, and was freely exercised by this court 'when the judges sat separately for jury trials. See for example, Sommer v. Wilt, 4 S. & R. 19. The act of 1891 vests a further power of revision, of the same nature, in this court. It is an authority to review the exercise of the discretion of the court below in this respect, as we do in some others. It is a power of review only, before final judgment, and does not violate the right to a jury trial nor even interfere with it in the particular case more than was or might have been done by the court below. We do not see that it transgresses the constitutional command.

The diligence of counsel for appellants has brought to our attention the decisions upon statutes of substantially the same import in eight of our sister states, and we have examined them enough to be able to say that they uniformly sustain the construction and the validity of the statutes upon the same lines as we have followed in discussing the act of 1891.

The bill of exceptions in the present case brings up the whole evidence, and the study of it compels the conclusion that the amount of the verdict must have been largely influenced by other considerations than calm judgment. The license which the press assumes to itself in the ruthless hunt for sensational news, and in the unsparing invasion of private affairs with which the public has no rightful concern, is the disgrace of modern journalism, and one of the greatest menaces to free institutions. It may well dispose juries in a proper case to give large damages both compensatory and punitive, and with such verdicts the courts will not be readily moved to interfere. In the present case the persistent attacks on the plaintiff long after he had ceased to be an office holder or prominent in public affairs, gave plausibility to the charge that they were further induced by actual malice and the vindictive use of the power of a great newspaper for the gratification of personal objects. These considerations would naturally lead to a large verdict, and all the more so as the defendant’s leaving the court room which appears to have been entirely without adequate cause, would be apt to be construed by the jury as an abandonment of the defense and an admission of the malice charged, or perhaps even as showing a want of confidence in the jury themselves, and therefore an affront. We are unable to resist the conclusion that this very impolitic and unexplained move of the defendants in leaving the court room and instructing their counsel to retire from the' trial, was more responsible than all the other circumstances for the amount of the verdict.

January 4, 1897:

Taking all the facts of the ease into consideration, and giving great weight as it deserves to the opinion of the learned court below, we are still constrained to believe that the penalty was disproportionate to the offense, and that the interests of public justice and the administration of the law, which always suffer in the reaction from undue severity, require that the verdict should not be allowed to stand. As to the exact form which the order shall take, the court is not entirely agreed. It is customary in setting aside verdicts as excessive, for the common pleas to fix an amount which in their judgment would not be unreasonable, and to give the party the choice to accept it, or take the chances of a new trial. Speaking for myself, I think that course should be pursued here. The plaintiff has won a signal victory, and I do not think he should be deprived of the whole fruits of it except at his own option. I would therefore name a sum which though large and substantial would not have been deemed unreasonable had the jury fixed it, and would give plaintiff the choice to reduce the verdict to that amount or go to another jury. But the majority of my brethren think it inexpedient to enter into the consideration of amounts, and in obedience to their directions the verdict must be set aside generally.

Judgment reversed and venire de novo awarded.