Childers v. San Jose Mercury Printing & Publishing Co.

Citations

• 105 Cal. 284
• 38 P. 903
• 1894 Cal. LEXIS 1152

Syllabus

<p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p> <p>Id.—Question of Fact—Erroneous Instruction.—An instru