Childers v. San Jose Mercury Printing & Publishing Co.
Before: Gaeoutte
Synopsis
Libel and Slander—Malice.—Malice, in actions of libel and slander, is divided into two classes, to wit, malice in law and malice in fact.
Id.—Malice in Law—Conclusive Presumption.—Malice in law may be defined as a wrongful act done intentionally, without just cause or excuse, and is conclusively presumed where the publication of a libel or slander is not justified by the proof of its truth nor by the privileged occasion of publication.
Id.—Malice in Fact.—Malice in fact may be defined as a spiteful or rancorous disposition which causes an act to be done for mischief; and may be established by evidence aliunde, or may appear from the face of the publication itself.
Id.—Absence op Malicious Motive.—The absence of malicious motive may protect against exemplary damages, but will not bar the action if there is no justification of the libel or slander.
Id.—Actual Damages—General Damage —Special Damage—Pleading-Evidence.—Actual or pecuniary damages for libel include general damages for injury to feelings and loss of reputation, which need not be alleged in detail in the complaint, and may be recovered in the absence of actual proof and special damages.
Id.—Recovery op Exemplary Damages—Malice in Fact.—Exemplary damages may be recovered when malice on the part of the defendant is established as a fact, either actually or by presumption, or inference of fact from the libelous character of the publication.
Id.—Construction op Code—Disputable Presumption op Fact—Evidence.—In section 3294 of the Civil Code, which allows the recovery of exemplary damages where the defendant has been guilty of malice, actual or presumed, the presumed malice spoken of is a disputable presumption of fact establishing prima facie the right of plaintiff to exem.plary damages for a publication libelous per se, but this presumption may be overcome by other evidence that there was no malice in fact.
Id.—Question of Fact—Erroneous Instruction.—An instruction upon the subject of exemplary damages, in an action of libel, which assumes that malice in fact was established by the evidence, when the defendant had attempted to rebut the presumption of malice in fact by evidence to the contrary, is erroneous, as assuming a question of fact in issue before the jury.
Gaeoutte, J. — This is an appeal from a judgment of the superior court of the county of Monterey, in favor of the plaintiff and against the defendant herein, for the sum of two thousand dollars damages for an alleged [287]libel, and from an order denying the defendant’s motion for a new trial.
The defendant published in a daily issue of the San Jose Mercury, a newspaper printed and published in the city of San Jose, an article to the effect that the plaintiff, William. Childers, had committed the offense of burglary, upon the previous night, in said city of San Jose, by breaking and entering a business house of said city. Plaintiff by his complaint charged said publication to be a libel upon him, and brought this action for damages.
It is now insisted that the court misunderstood the law bearing upon the questions here involved, and that the following instructions, which were given to the jury, are unsound as declarations of legal principles: “1. All libels and slanders are conclusively presumed to be in some degree malicious; 2. Said publication was a libel upon the plaintiff, and entitles him to a verdict in his favor; 3. Damages in such a case as this are given: 1. To compensate the plaintiff for his injuries, if he has suffered any, and 2. As an example to others similarly situated, and as a punishment for a wrongful act done; 4. In this action, if you find for the plaintiff, and if you find that the defendant has been guilty of oppression, fraud, or malice, actual or presumed, in addition to the actual damages sustained by the plaintiff, you may give him.damages for the sake of example, and by way of punishing the defendant. As I have already charged you, the law presumes the existence of malice from the fact of the publication of the false, unprivileged, and defamatory article in a newspaper regarding the person so charged; 5. The plaintiff in this case has not alleged or attempted to prove any special damages, but simply claims a verdict for exemplary or punitive damages. Such damages are given for the sake of example, and by way of punishing the defendant.”
The foregoing instructions are taken from various portions of the body of law given by the court to the jury, and are collected and numbered for our convenience. There is no question in this case but that the [288]
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