Hygienic Fleeced Underwear Co. v. Way

Citations

• 35 Pa. Super. 229
• 1908 Pa. Super. LEXIS 16

Syllabus

<p>Libel — Trade libel — Probable cause — Negligence—Province of court and fury.</p> <p>While in general, the question of probable cause is one of law for the court, it is for the jury to determine whether the facts relied on to constitute it are established by the evidence, unless they be admitted or be beyond controversy.</p> <p>When proof of the plaintiff’s case or defendant’s defense depends upon oral testimony it is the province of the jury to decide, under instructions from the court as to the law applicable to the facts, subject to the salutary power , of the court to award a new trial if it should deem the verdict contrary to the weight of the evidence.</p> <p>In an action for trade libel against a patented article, where the plaintiff has presented a prima facie case upon which it has a right to go to the jury, and the defendant presents oral evidence that the publication was made in good faith upon advice of competent counsel who knew the facts, the defendant is not entitled to binding directions in his favor, inasmuch as it is the function of the jury to p^ss upon the oral evidence as to whether the advice was given, and whether under all the circumstances defendant honestly believed that he had a right to publish the libel in question.</p> <p>Libel — Trade libel — Blander of title.</p> <p>An action for the wrong called slander of title, is not like an action for ordinary defamation. It is an action on the case for special damage sustained by reason of the speaking, or publication of the slander of the plaintiff’s title. Actual malice — that is, absence of good faith — no less than special damage is of the gist of the action. If there is no evidence of special damage, the plaintiff cannot recover.</p>