readers understood the article to refer to plaintiff was immaterial. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. § 283; Dec. Dig. § 105.*] 30. LIBEL AND SLANDER (§ 103*)-REPUTATION-PROOF OF GOOD REPUTATION. Affirmative evidence of plaintiff's good reputation in advance of any attack thereon by defendant, is inadmissible in an action for libel. [Ed. Note.-For other cases, see Libel and Slander, Dec. Dig. § 103.*] 31. LIBEL AND SLANDER (8 124*)-PLAIN TIFF'S REPUTATION-INSTRUCTION. In an action for libel, an instruction that there had been evidence as to plaintiff's reputation prior to the publications in question, and that it was for the jury to determine from the evidence whether plaintiff bore a good reputation for honesty and integrity in the community where he lived prior to the publication, and that a man with a good reputation for integrity and honesty could be more seriously even though proof of justification fail, and that, while evidence tending to prove the truth of the charge must be pleaded, all other circumstances in mitigation, not tending to establish the truth, may be proved without being pleaded. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 246-272; Dec. Dig. § 100.*] 35. TRIAL (§ 241*) — INSTRUCTIONS - DISCUSSION OF DIFFERENT CASE. An instruction consisting of an argumenlaw of qualified privilege as a defense to libel, tative discussion by the Supreme Court of the taken from an opinion in another case, was improper. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 562, 563; Dec. Dig. § 241.*] In Bank. Appeal from Superior Court, damaged by such publication than would a man [Ed. Note.-For other cases, see Libel and Slander, Dec. Dig. § 124.*] 32. LIBEL AND SLANDER (§ 103*)-EVIDENCESCOPE. Where, in an action for libel consisting of a newspaper publication referring to plaintiff's acts as a member of a board of education, the headlines stated that the "exposures made by Examiner (the newspaper) were found to be true," though the body of the article seemed to contain but one specific matter, which the mayor had investigated, plaintiff was not limited to an examination of the mayor concerning the single specific matter, but was properly permitted to ask him whether in the investigation of the affairs of the school board he found any school graft, or graft at all, and whether he had found any misappropriation of moneys or school funds. [Ed. Note. For other cases, see Libel and Slander, Dec. Dig. § 103.*] Reversed Davis & Rush and Garret W. McEnerney (Andrew F. Burke, of counsel), for appellants. J. H. Merriam and Edwin A. Meserve, for respondent. HENSHAW, J. Plaintiff brought this action to recover damages for certain alleged libelous matters published of and concerning him in the Los Angeles Examiner. Of the defendants, W. R. Hearst is the proprietor and publisher of the paper, Henry Lowenthal the business manager, and James T. Belcher a reporter and author of the defamatory articles. Trial was had before a jury. The action was dismissed as to the defendant Lowenthal, and proceeded to verdict and judgment against the remaining defendants. The verdict awarded plaintiff compensatory damages in the sum of $10,000, and exemplary damages in the sum of $25,000, against both defendants. The judgment followed the verdict. The complaint contained three causes of action, based upon three separate publica 33. LIBEL AND SLANDER (§ 15*)-NEWSPAPER PUBLICATION-CAPTIONS AND HEADLINES. The captions and headlines of a libelous newspaper article are a part of the libel. [Ed. Note.-For other cases, see Libel and tions, one and all directed against the acts Slander, Dec. Dig. § 15.*] 34. LIBEL AND SLANDER (§ 100*)-MATTER IN MITIGATION-PLEADING-NECESSITY. Code Civ. Proc. § 461, provides that in libel defendant in his answer may allege, both the truth of the matter charged as defamatory and any mitigating circumstances, to reduce the amount of damages, and whether he prove the justification or not he may give in evidence the mitigating circumstances. Held, that such section should not be construed to mean that, whenever any circumstances in mitigation going to the truth of the charge are relied on, they must be pleaded, but to require that if a defendant pleads justification he may at the same time plead with his affirmance of good faith and honest belief all facts and circumstances within his knowledge at the time of the publication which support that knowledge and belief, even if they tend to establish the truth of the charge: that if he desires to plead justification, and also truth or partial truth in mitigation, he must plead such facts and circumstances in mitigation, in which event they will be considered on the question of malice, and conduct of plaintiff as a member of the The article itself purported to deal with the exposure which the Examiner had made "of the extravagance and reckless, if not criminal, waste, of public school funds by the Pasadena Board of Education." It declared that it was an easily demonstrated fact that there had been bad management, "if nothing worse," in connection with the erection of almost every school building during the past few years, and that rumors had been rife for *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 534 116 PACIFIC REPORTER many months reflecting upon the manage- | office, although they are officially connected ment of the public business by the board of with the later questionable transactions at education. It asserted that the school board the Garfield schools. "With the uncovering of the manner in "had been braggingly active in politics," had furnished misleading reports to the press, and which money has been expended in this conthat charges of favoritism in the awarding of nection, there is a revival of alleged misThese reports are public contracts had been hinted at time and management and waste of public money at At the Lincoln School, for intime again. It asserted the existence of a other school buildings. growing distrust amongst the people touch-numerous. ing the management by the board of educa- stance, the fact is pointed out that sewer It de- pipe of vitrified brick was laid in face of tion of the affairs intrusted to it. clared that whenever there had been such the advice of men familiar with such work a report of trouble in connection with the and such material. The School Board was construction of a new school the secretary, advised to install iron pipes that would last M. W. Davis, and other members of the a lifetime, but they decided to lay vitrified Even Contractor Buckins, who had board, when appealed to, falsely asserted brick. that there was nothing amiss, and that the job, recommended iron pipes, which "something more than mere denial will be would have cost but a small sum more than No attention was paid to these a period of necessary to explain the waste of so many the brick. thousands of dollars in the Garfield school, recommendations, and after money which was wasted as completely as about three years new pipe had to be laid if it had been actually thrown into the pub- to replace the original pipe, as the latter lic streets." It also declared that as soon as had become worthless. the Examiner's exposure became known the board of education put in practice its "usual tactics" of making excuses through a friendly press, "with the evident purpose of hiding It stated the real seriousness of the case." that "the Examiner's articles have charged plainly and unqualifiedly" certain enumerated matters showing extravagance, incompetency, and waste of the public funds. "At the McKinley School even a more serious mistake was made, a mistake that imperiled the health of several hundred children. 'Fresh air' was carried into the school rooms that was carried across the heaters in the toilet rooms. "Every well informed citizen in Pasadena William H. Reeves, who has had much to do with the new school buildings in connection with his official duties, 'that the condition of affairs in the different school buildings is simply rotten. That is all there is to it.' "As usual it is difficult to have proper officials discuss the situation for publication, but a man familiar with the Board of Education's method of doing business during the past four years, said today to the 'Examiner' correspondent: The second cause of action sets forth the publication of another article upon the day following, which is here quoted at length. "School Graft Would Make a Ruef Blush. "Pasadena Citizen Declares Education Board Has Juggled Funds for Years. "Pasadena, Sept. 14.-No matter what may be the outcome of the evident waste of pub"Every well informed citizen in Pasadena lic funds by the Board of Education, there is hope that the people of Pasadena have is aware that school funds have been reckat last awakened to the necessity of demand-lessly wasted for years past. The members ing a more general and satisfactory explana- of the Board seem to feel that they are not tion of the way the School Board attends to responsible to anybody for what they may There is no longer any do. They prate of providing for the future its public duties. concealment of the fact that there have been needs of the schools, while as a matter of ugly stories afloat concerning the alleged undeniable fact, they have never kept within misconduct in office of men who were ex-years of the present needs. There has been pected to be protecting the public school interests. It is true that there have been allegations of 'graft' made freely in connection with almost every expenditure of the school funds for several years past, both with the present and previous Boards of Education. scandal in connection with every school building erected in recent years, members of the Board have scorned the advice of men informed as builders and architects, and If some citizens of standing yet they seem never to have profited by their would bestir themselves and force an open past mistakes. "The members of the Board at present and public investigation, some of these genare Benjamin E. Page, who is also president; tlemen of the School Board might feel inM. W. Davis, who is the clerk; C. E. Cham-clined to hang their heads in shame. It is berlain, J. B. Beardsley and W. W. Ogier. simply incredible that the taxpayers will The last two were elected recently to suc- tolerate the misuses of money that should ceed D. W. Lewis of North Pasadena and go for the education of the boys and girls C. M. Parker, who had served terms of four in this city. Every dollar that is wasted, as Messrs. Ogier and Beardsley money has evidently been wasted in the Garyears each. nave had nothing to do with the erection or field Schools, is nothing more or less than awarding of contracts for the building of robbing the rising generation of just that any new schools since their induction in much educational opportunity. ""The great trouble here has been that a certain element or clique of men, whose integrity is not so immaculate that we may not even look at it, have sneered at the people and laughed at all opposition and all questioning of their public acts as members or officials of the Board of Education. It is only a few years ago that members of the Board begged the taxpayers for funds for new schools, specified plainly what they wanted the money for and after getting it voted to their uses as outlined by them, they deliberately used the money for other purposes. These men are prone to talk of their integrity, but such misrepresentations and jug-aminer' in this connection." gling of public funds would make Abe Ruef blush for shame. If the members of the Board of Education are under bonds for the efficient discharge of their public duties they should be proceeded against. If they are not under bonds, they should be compelled to give them or be forced to resign from office. sor Kellogg and inspected the bills filed in that office by M. W. Davis, member and Clerk of the Board of Education. "The Mayor found that Clerk Davis has been making copies of all bills submitted to him, that he approves the same, swears to their correctness, and it is said, has been collecting the money and making it his personal business to pay the person holding the claim against the Board of Education. The Mayor was doubtful that such a loose practice was in vogue, but a brief conference with Auditor Kellogg convinced him of the truth of the statements that have been made in the 'Ex "M. W. Davis, clerk of the Board, is generally regarded as the worst offender against the public interests in connection with the schools. It is charged against Clerk Davis as an example of his manner of discharging his official duties, that in the year 1905 he was notified by Building Inspector A. C. Shaver that the plumbing in the Franklin School, that was at that time in course of construction, was not good or sanitary, and that at the time of the final inspection he would be compelled to condemn it. The Building Inspector also took occasion to notify Clerk Davis that the specifications were not being lived up to, and that the material being used was not up to the quality called for. This notice was served in writing and after verbal notice had been given. No attention was paid, as usual, but when the plumbing was condemned by the City's Inspector of Buildings, as he had notified Davis would be done, the work was changed and done over again after the building had been practically completed.' ” The third cause of action charged upon a publication made upon October 7th following, whose headlines read as follows: "Mayor Investigates the Board of Educa tion's Acts. "Exposures Made by 'Examiner' Found to be True. "Pasadena Council Will Act." The body of the article declared that as the result of the exposures made in the Examiner in regard to the loose manner of "doing business that has been in vogue in the Board of Education it is reported tonight that the City Council will be asked at its mecting tomorrow to enforce more stringent regulations to protect the taxpayers. The complaint contained appropriate innuendos as to the meaning of the alleged libelous matter and of its designed application to plaintiff, and charged that it was published with express malice on the part of each of the defendants directed against the plaintiff. The answer by denial raised the general issue. It pleaded also justification and certain matters in mitigation. It pleaded the absence of Mr. Hearst from the city of Los Angeles and from the state of California at the time of these publications, and his employment during his absence of skilled, careful, and competent men, and that the defendant James T. Belcher was such a man. Defendants all joined in one answer, and it was specifically averred that neither the defendant Hearst nor the defendant Lowenthal had any personal knowledge whatsoever of the publication of the articles or of the statements therein contained. The questions brought up for review upon appeal are numerous. It is impossible even to enter intelligently upon their consideration in advance of a clear understanding of certain fundamental principles, propositions, and even words, which throughout must guide, control, and govern the discussion. And it should be said that this discussion, except where it is otherwise specifically pointed out, is addressed to the civil law of libel. For at the outset it is to be remembered that not only are the defenses to a criminal libel different from those permissible in a civil action of libel, but the very definitions of civil and criminal libel vary radically. [1] A libel upon which a civil action may be founded is: "A false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." Civ. Code, § 45. [2] A libel as the foundation for a criminal action is "a malicious defamation, expressed either by writing, printing, or by signs or pictures, or the like, tending to blacken the "Upon information obtained from the 'Ex- memory of one who is dead, or to impeach aminer' Mayor Earley on Saturday afternoon the honesty, integrity, virtue, or reputation, visited the office of City Auditor and Asses- or publish the natural or alleged defects or one who is alive, and thereby to expose him Odgers on Libel & Slander (4th Ed.) p. 320, to public hatred, contempt, or ridicule." it is said: "It is true that the word 'maliPen. Code, § 248. Under our law of civil libel, therefore, malice forms no ingredient of the offense, and a recovery of full compensatory damages may be had in every case, even where an absence of malice is positively established. Upon the other hand, in criminal law, malice is made a necessary ingredient of the offense, though to make prima facie proof of it it is only necessary for it to appear that an injurious publication has been made without justifiable motive. Thereupon the law raises a presumption of the malice sufficient to support the criminal charge. Pen. Code, § 250. cious' is usually inserted in every definition of libel or slander, that the pleader invariably introduces it into every statement of claim, and that the older cases contain many dicta to the effect that 'malice is the gist' of an action of libel or slander. But in all these cases the word 'malice' is used in a special and technical sense; it denotes merely the absence of lawful excuse; in fact, to say that defamatory words are malicious in that sense means simply that they are unprivileged, not employed under circumstances which excuse them. But I have thought it best to drop this technical and fictitious use of the word altogether-a use which has been termed 'unfortunate' by more than one learned judge." Malice in Law and Malice in Fact. [3] Malice, as has been said, is not a necessary ingredient of a civil libel nor essential to the full recovery of compensatory damages. If a libel results from mere inad- It has been said and cannot be said with vertence, from a proof reader's or composi- too much emphasis, that a full recovery in tor's error, or from any clerical misprision, compensatory damages may be had under the liability upon the publisher is just as our civil law of libel without the pleading great, and no greater, for compensatory dam- of malice, without the proof of malice, and ages than the liability that would be cast without the existence of malice. The docupon him if the same publication were most trine that malice is the gist and essence of evilly and malignantly designed. Civ. Code, a charge of libel grew up in those jurisdic§ 3333. Thus we are brought at the outset tions where the definition of the wrong emto a consideration of the part which malice braced the element of malice, as it still plays in actions for civil libel. Because of does in this state in the definition of crimithe many definitions which have been given nal libel, and thus we find in our own cases to this word, of the many varying attributes such language as the following: "Malice in which have been accredited to it, of the law may be defined as a wrongful act done many jurisdictions which have been called intentionally without just cause or excuse. upon to deal with the law under as many dif- Such malice is necessary to the life of every ferent definitions of libel itself, because, also, cause of action for libel, and is conclusiveof the inevitable confusion which has arisen ly presumed in publications of the character by a failure carefully to distinguish between here involved." Childers v. Mercury Pub. the law of civil libel and the law of criminal, Co., 105 Cal. 284, 38 Pac. 903, 45 Am. St. libel, and, finally, because of the decisions Rep. 40. In endeavoring to follow this case, of those jurisdictions where punitive or vin- the learned commissioner, in Taylor v. dictive damages have been or are allowed Hearst, 107 Cal. 262, 40 Pac. 392, declares: without an express statute controlling the "To constitute libel, there must be malice, award, the word "malice," it has been aptly actual or implied, on the part of the pubsaid, has come to be the "bugbear of the law lisher. Actual malice exists when the pubof libel." Says Gaynor, J.: "The jumble inlication is made through motives of ill will, some modern text-books on slander and libel and with intent to injure or defame, and concerning malice, actual malice, malice in the law presumes malice when the article law, malice in fact, implied malice, and ex-published is libelous per se. Such malice is press malice (all derived from judicial utterances, it is true) is a striking testimony of the limitations of the human mind." Ullrich v. New York Press Co., 23 Misc. Rep. 168, 171, 50 N. Y. Supp. 788, 790. Says a learned judge, in Abrath v. Northeastern R. Co., 11 App. Cas. 247, 253: "That unfortunate word 'malice' has got into cases * for libel. We all know that a man may be the publisher of a libel without a particle of malice or improper motive. Therefore the case is not the same as where actual and real malice is necessary. Take the case where a person may make an untrue statement of a man in writing, not privileged on account of the occasion of its publication; he would be liable, although he had not a called malice in law, and it signifies a wrongful act intentionally done." But as an evidence of the inextricable confusion which has arisen from the use of this word, it may be pointed out that in this case, while it is seemingly declared that malice existed, and that it is known as malice in law, elsewhere in the opinion it is stated that it was proved that the publication was made “by mistake and without any malice toward the plaintiff." The case itself is illustrative of the proposition that malice is not an essential to our civil law of libel, and that plaintiff's right to recover is based simply upon the tort and the damages which it has caused him, even though the tort consist of negligence, pure and simple. In Taylor v. Hearst the public in connection with furnishing | but the presumption is disputable and may basalt blocks to the city, and accused J. W. be overcome by establishing a justifiable Taylor of the fraud. A mistake had occurred. motive for the publication. Pen. Code, § J. W. Taylor had no connection with the 250. If any terms of description were unifraud. J. N. Taylor was the person meant versally understood and accurately and unito be charged. A prompt retraction and ex- formly employed, there would be no occa-planation was made by the newspaper upon sion for cavil. But employed, as they are, discovery of this typographical error, com- in different jurisdictions with different pletely exonerating J. W. Taylor. In the meanings, all possibility of accurate reasonaction brought by J. W. Taylor all these ing and fair exposition is at once destroyed. facts were established. with many more, In those jurisdictions where malice is of showing the care of the paper in gathering the essence of a civil libel, this malice is the news and presenting it to the public, considered to be in its nature a pure legal and by this court it was said that the libel fiction, conclusively established by proof of was based wholly upon a mistake, "without the falsity and nonprivileged character of any malice toward the plaintiff; the mid- the matter. This but introduces another dle initial of Taylor's name being printed embarrassment in the law-an embarrass'W,' when it should have been 'N'." An oft- ment which we need not take upon ourselves, quoted definition of malice in law is that it in view of the fact that neither in the pleadis a wrongful act, done intentionally, with- ings nor in the proof is malice necessary to out just cause or excuse. It is plain that sustain a charge of civil libel. And it must the act of defendant in Taylor v. Hearst did very often happen that, aside from this ficnot in fact measure up to this definition, tional malice of the law, the constructive since the wrongful act was done not in- malice of the law, presumed from the intentionally, but unintentionally. But in law tentional doing of a wrongful act without the act did measure up to the definition, just reason or excuse, will exist where there since the publication (the act) was wrongful, is an entire absence of malice in fact, and was intentional, and the defendant would where the tortious act of libel arose through not be permitted to rebut the presumption pure negligence. The instance of Taylor v. of malice in law by proof that the publica- | Hearst, above cited, is typical of this class tion was misdirected. The truth is that an of cases. So, in Bigelow on Torts (7th Ed.) understanding of the law of civil libel has § 319, it is said: "It is indeed common to been much embarrassed by this fiction of say that malice is presumed or implied uplegal malice. And still more has the law on proof of the publication; but that means been complicated by the varying definitions nothing, and is only misleading, for the prewhich have been given of this legal malice. sumption or implication cannot be over[4] "Malice," as universally understood by thrown by evidence of want of malice. Malthe popular mind, has its foundation in ill ice touching the making of a prima facie case will, and is evidenced by an attempt wrong- is only a name arbitrarily applied-simply fully to vex, injure, or annoy another. This a fiction." And Lord Justice Brett, in Clark malice may be designated "malice in fact." v. Molyneux, 3 Q. B. D. 246, treating of the It is the malice described in section 7, subd. malice which destroys a qualifiedly privileg4, of the Penal Code, where it is said: "The ed communication, says: "Malice does not words 'malice' and 'maliciously' import a mean malice in law, a term in pleading, wish to vex, annoy or injure another per- but actual malice; that which is popularly son." There is still another malice, the pre- called malice. It has been decidsumption of the existence of which is raised ed that if the word 'maliciously' is omitby the law in certain cases upon certain ted in a declaration for libel, and the words proofs. That is the malice described in the 'wrongfully' or 'falsely' substituted, it is same section of the Penal Code, when it sufficient, the reason being that the word further declares that "malice" is shown by maliciously' as used in a pleading has only "an intent to do a wrongful act, established a technical meaning; but here we are dealeither by proof or presumption of law." ing with malice in fact, and malice then This a malice of pleading and proof made means a wrong feeling in a man's mind." necessary by the exigencies of definitions So, too, most instructive is the language in of offenses against the law. This malice Wrege v. Jones, 13 N. D. 267, 100 N. W. may exist with malice in fact; but, upon the 705, 112 Am. St. Rep. 679, where the court other hand, it may exist quite independent is discussing the malice which the law preof it. In some instances this latter malice sumes in civil actions for libel. Says the -malice in law-is conclusively presumed court: "But the conclusion that, because in against the defendant. In other instances such cases it is said that malice is concluthe presumption is disputable. Thus, in sively presumed, evidence upon the question those jurisdictions where malice, by force of actual malice (that is, as to the motive of the definition of libel, is held to be essen- or intent with which the publication was tial to the action, it is conclusively presum- made) is incompetent, when offered under a ed from the publication. sufficient answer, is entirely erroneous. malice which by legal fiction is thus presumed to exist is known as 'legal malice,' as [5] In our own criminal action, it is presumed from the injurious publication alone, The |