Lick v. Owen
47 Cal. 252
Cal.
1874
Check Treatment
By the Court, Crockett, J.:

The defendants, being the publishers and proprietors of a newspaper, permitted to be published therein an article concerning the plaintiff, which is claimed to be libelous. The action is for damages for the publication of the alleged libel. The answer admits the publication, but does not aver its truth, and alleges that it was published as a mere pleasantry, and without malice. It further avers that, as soon as practicable, the defendants published in the same newspaper a full retraction and explanation of the offensive article, and denies that the plaintiff suffered any damage.

The plaintiff submitted the case to the jury on the pleadings, and the only testimony for the defense was that of one of the defendants, who testified to the exculpatory matter set up in the answer, and denying that the publication was malicious. This being all the evidence, the Court of its own motion charged the jury, that the publication was libelous, as tending “to reflect shame upon the person of the plaintiff,” and “tohold him up to the people as an object of ridicule.” We agree with the Court below on this point. But the charge then proceeds to inform the jury that “ malice is of two kinds—malice in law and malice in fact. If a man does what he ought not to do, or what the law prohibits him from doing, it is a wrongful act; and malice, in law, is simply the wrongful intent which the law always implies accompanies a wrongful act, without any proof of malice in fact. On the other hand, malice in fact is a spiteful or rancorous disposition which causes an act to be done for mischief.” The court then proceeded to say that the plaintiff was, prima facie, entitled to judgment on the pleadings; but that the legal presumption of malice may be repelled by the circumstances under which the publication was made; “ and if they show that there was no malice in fact in making the publication there can be no recovery, *258unless it is proved that the plaintiff has been specially'injured, or that the defendants were actuated by malice in fact. The Court then recited the circumstances under which the publication was made, as shown by the uncontradicted testimony for the defendants, and instructed the jury that inasmuch as the presumption of malice was fully rebutted, and there was no proof of special damage, it was the duty of the jury to find a verdict for the defendants; which was accordingly done.

This portion of the charge was erroneous. If a publication be libelous, and not privileged, the law implies that it was malicious. This is not a mere presumption, which may be wholly overcome by proof, but it is a legal conclusion, which cannot be rebutted. But whilst the absence of actual malice cannot be shown as. a bar to the action, the defendant may plead and prove "any mitigating circumstances to reduce the amount of damages.” This was authorized by Section 63 of the Practice Act, which was in force when this action was tried. In Wilson v. Fitch, 41 Cal. 380, the rule is thus laid down: "The mitigating circumstances which are permitted by Section 63 of the code to be pleaded and proved, must be such as tend to rebut the presumption of. malice, or to reduce its degree. All libels are conclusively presumed to be, in some degree, malicious; but there are different degrees and phases of malice; and some actionable defamatory publications (all of which the law deems tó be malicious, except privileged communications) are, in fact, published without actual malice. It is eminently just, therefore, that the defendants, with a view to reduce the damages, should be allowed to rebut the presumption of malice by the proof of what the statute terms ‘ mitigating circumstances.’ That is to say, the circumstances under which the publication was made, and the real motives which induced it.” The testimony on behalf of the defendants was, therefore, proper, in mitigation of damages, but not in bar of the action. Counsel insist, however, that the plaintiff was entitled, at most, to only nominal damages; and that it is not the practice of appellate Courts to reverse a judgment for the defendant when-*259it is clear that only nominal damages can be recovered on another trial. The rule may, possibly, be as stated in actions ex contractu, when, for the mere technical breach of a contract, the Court can see that, as a matter of law, the plaintiff would be entitled to only nominal damages. But in an action for libel, the question of damages is for the jury, and the Court cannot assume, as a matter of law, that the plaintiff is entitled to only nominal damages.

Judgment reversed, and cause remanded for a new trial. Bemittitur forthwith.