Full opinion text
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 ten thousand dollars, and exemplary damages in the sum of twenty-five thousand dollars, against both defendants. The judgment followed the verdict. The complaint contained three causes- of action, based upon three separate publications, one and all directed against the acts and conduct of plaintiff as a member of the board of education of the city of Pasadena and the clerk of that board. The first publication was made upon September 13th, under headlines declaring that the “School Board Faces Rigid Investigation. “Demand for Inquiry into Mismanagement and Waste of Public Money May be Made.” 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 many months reflecting upon the management of the public business by the board of education. It asserted that the school board “had been braggingly active in politics,” had furnished misleading reports to the press, and that charges of favoritism in the awarding of public contracts had been hinted at time and time again. It asserted the existence of a growing distrust amongst the people touching the management by the board of education of the affairs entrusted to it. .It declared that whenever there had been such a report of trouble in connection with the construction of a new school the secretary, M. W. Davis, and other members of the board, when appealed to, falsely asserted that there was nothing amiss, and that “Something more than mere denial will be necessary to explain the waste of so many thousands of dollars in the Garfield School, money which was wasted as completely as if it had been actually thrown into the public streets.” It also declared that as soon as 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 the real seriousness of the case.” It stated that “the Examiner’s articles have charged plainly and unqualifiedly” certain enumerated matters showing extravagance, incompetency, and waste of the public funds. 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 public funds by the board of education, there is hope that the people of Pasadena have at last awakened to the necessity of demanding a more general and satisfactory explanation of the way the school board attends to its public duties. There is no longer any concealment of the fact that there have been ugly stories afloat concerning the alleged misconduct in office of men who were expected 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.. “The members of the board at present are Benjamin E. Page, who is also president; M. W. Davis, who is the clerk; C. E. Chamberlain, J. B. Beardsley and W. W. Ogier. The last two were elected recently to succeed D. W. Lewis of North Pasadena and C. M. Parker, who had served terms of four years each. Messrs. Ogier and Beardsley have had nothing to do with the erection or awarding of contracts for the building of any new schools since their induction in office, although they are officially connected with the later questionable transactions at the Garfield schools. “With the uncovering of the manner in which money has been expended in this connection, there is a revival of alleged mismanagement and waste of public money at other school buildings. These reports are numerous. At the Lincoln School, for instance, the fact is pointed out that sewer pipe of vitrified brick was laid in face of the advice of men familiar with such work and such material. The school board was advised to install iron pipes that would last a lifetime, but they decided to lay vitrified brick. Even Contractor Buckins, who had the job, recommended iron pipes, which would have cost but a small sum more than the brick. No attention was paid to these recommendations, and after a period of about three years new pipe had to be laid to replace the original pipe, as the latter had become worthless. “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. “ ‘The simple fact is,’ said City Electrician 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 to-day to the Examiner correspondent: “ ‘Every well informed citizen in Pasadena is aware that school funds have been recklessly wasted for years past. The members of the board seem to feel that they are not responsible to anybody for what they may do. They prate of providing for the future needs of the schools, while as a matter of undeniable fact, they, have never kept within years of the present needs. There has been 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 yet they seem never to have profited by their past mistakes. If some citizens of standing would bestir themselves and force an open and public investigation, some of these gentlemen of the school board might feel inclined to hang their heads in shame. It is simply incredible that the taxpayers will tolerate the misuses of money that should go for the education of the boys and girls in this city. Every dollar that is wasted, as money has evidently been wasted in the Garfield schools, is nothing more or less than robbing the rising generation of just that 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 juggling 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. “ ‘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 oe Education’s Acts. “Exposures Made by Examiner Found to be True. “Pasadena Council Will Act.” The body of the article declared that as a result of the exposures made in the Exmiiner 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 meeting tomorrow to enforce more stringent regulations to protect the taxpayers. “Upon information obtained from the Examiner Mayor Earley on Saturday afternoon visited the office of City Auditor and Assessor 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 bim of the truth of the statements that have been made in the Examiner in this connection.” The complaint contained appropriate innuendoes 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. 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, sec. 45.) 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 memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation, or publish the natural or alleged defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule.” (Pen. Code, sec. 248.) Under our law of civil libel, as appears from the foregoing definition, malice forms no ingredient of the offense, and a recovery of full compensatory damages may be had in every ease, even where an absence oí 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 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, sec. 250.) 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 inadvertence, from a proof reader’s or a compositor’s error, or from any clerical misprision, the liability of the publisher is just as great and no greater for compensatory damages than the liability that would be cast upon him if the same publication were most evilly and malignantly designed. (Civ. Code, sec. 3333.) Thus we are brought at the outset to a consideration of the part which malice plays in actions for civil libel. Because of the many definitions which have been given to this word, of the many varying attributes which have been accredited to it, of the many jurisdictions which have been called upon to deal with the law under as many different definitions of libel itself, because, also, of the inevitable confusion which has arisen by a failure carefully to distinguish between the law of civil libel and the law of criminal libel, and, finalky, because of the decisions of those jurisdictions where punitive or vindictive damages have been or are allowed without an express statute controlling the award, the word “malice,” it has been aptly said, has come to be the “bugbear of the law of libel.” Says Gaynor, J.: "The jumble in some modern text books on slander and libel concerning malice, actual malice, malice in law, malice in fact, implied malice, and express 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. 168, 171, [50 N. Y. Supp. 788, 790].) Says a learned judge in Abrath v. North Eastern R. Co., 11 App. Cas. 247, 253: “That unfortunate word ‘malice’ has got into eases . . . 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 particle of malice against the man.” And in 4 Odgers on Libel & Slander, p. 320, it is said: “It is true that the word ‘malicious’ 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. It has been said, and cannot be said with too much emphasis, that a full recovery in compensatory damages may be had under our civil law of libel without the pleading of malice, without the proof of malice, and without the existence of malice. The doctrine that malice is the gist and essence of a charge of libel grew up in those jurisdictions where the definition of a wrong embraced the element of malice, as it still does in this state in the definition of criminal libel, and thus we find in our own cases such language as the following: ‘‘Malice in law may be defined as a wrongful act done intentionally without just cause or excuse. Such malice is necessary to the life of every cause of action for libel, and is conclusively presumed in publications of the character here involved.” (Childers v. Mercury Pub. Co., 105 Cal. 284, [45 Am. St. Rep. 40, 88 Pac. 903].) In endeavoring to follow this case, the learned commissioner in Taylor v. Hearst, 107 Cal. 262, [40 Pac. 392], declares: “To constitute libel there must be malice, actual or implied, on the part of the publisher. Actual malice - exists when the publication is made through motives of ill-will, and with intent to injure or defame, and the law presumes malice when the article published is libelous per se. Such malice is 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 that 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 declaration 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 libelous article charged a fraud upon the public in connection with furnishing basalt blocks to the city, and accused J. W. Taylor of the fraud. A mistake had occurred. J. W. Taylor had no connection with the fraud. J. N. Taylor was the person meant to be charged. A prompt retraction and explanation was made by the newspaper upon discovery of this typographical error, completely exonerating J. W. Taylor. In the action brought by J. W. Taylor all these facts were established, with many more, showing the care of the paper in gathering the news and presenting it to the public, and by this court it was said that the libel was based wholly upon a mistake “without any malice toward the plaintiff, the middle initial of Taylor’s name being printed ‘W’, when it should have been ‘N’.” An oft quoted definition of malice in law is that it is a wrongful act done intentionally without just cause or excuse. It is plain that the act of defendant in Taylor v. Hearst did not in fact measure up to this definition, since the wrongful act was done not intentionally, but unintentionally. But in law the act did measure up to the definition, since the publication (the act) was wrongful, was intentional, and the defendant would not be permitted to rebut the presumption of malice in law by proof that the publication was misdirected. The truth is that an understanding of the law of civil libel has been much embarrassed by this fiction of legal malice. And still more has the law been complicated by the varying definitions which have been given of this legal malice. Malice as universally understood by the popular mind has its foundation in ill-will, and is evidenced by an attempt wrongfully to vex, injure, or annoy another. This malice may be designated malice in fact. It is the malice described in subdivision 4 of section 7 of the Penal Code, where it is said: “The words ‘malice’ and .‘maliciously’ import a wish to vex, annoy, or injure another person. There is still another malice, the presumption of the existence of which is raised by the law in certain eases upon certain proofs. That is the malice described in the same section of the Penal Code, when it further declares that “malice” is shown by “an intent to do a wrongful act, established either by proof or presumption of law.” This is a malice of pleading and proof made necessary by the exigencies of definitions of offenses against the law. This malice may exist with malice in fact; but, upon the other hand, it may exist quite independent of it. In some instances this latter malice—malice in law—is conclusively presumed against the defendant. In other instances the presumption is disputable. Thus, in those jurisdictions where malice, by force of the definition of libel is held to be essential to the action, it is conclusively presumed from the publication. In our own criminal action, it is presumed from the injurious publication alone, but the presumption is disputable and may be overcome by establishing a justifiable motive for the publication. (Pen. Code, sec. 250.) If any terms of description were universally understood and accurately and uniformly employed, there would be no occasion for cavil. But employed, as they are, in different jurisdictions with different meanings, all possibility of accurate reasoning and fair exposition is at once destroyed. In those jurisdictions where malice is of the essence of a civil libel, this malice is considered to be in its nature a pure legal fiction, conclusively established by proof of the falsity and non-privileged character of the published matter. This but introduces another embarrassment in the law, an embarrassment which we need not take upon ourselves, in view of the fact that neither in our pleadings nor in our proof is malice necessary to sustain a charge of civil libel. And it must very often happen that aside from this fictional malice of the law, the constructive malice of the law, presumed from the intentional doing of a wrongful act without just reason or excuse, will exist where there is an entire absence of malice in fact and where the tortious act of libel arose through pure negligence. The instance of Taylor v. Hearst, above cited, is typical of this class of cases. So, in Bigelow on Torts, 7th ed., see. 319, it is said: “It is indeed common to say that malice is presumed or implied upon proof of the publication;.but that means nothing, and is only misleading, for the presumption or implication cannot be overthrown by evidence of want of malice. 'Malice touching the making of a prima facie case is only a name arbitrarily applied, simply a fiction.” And Lord Justice Brett, in Clark v. Molyneux, 3 Q. B. Div. 246, treating of the malice which destroys a qualifiedly privileged communication, says: “Malice does not mean malice in law, a term in pleading, but actual malice, that which is popularly called malice. ... It has been decided that if the word ‘maliciously’ is omitted in a declaration for libel, and the words ‘wrongfully’ or ‘falsely’ substituted, it is sufficient, the reason being that the word ‘maliciously’ as used in a pleading has only a technical meaning; but here we are dealing with malice in fact, and malice then means a wrong feeling in a man’s mind.” So, too, most instructive is the language in Wrege v. Jones, 13 N. D. 267, [112 Am. St. Rep..679, 100 N. W. 705], where the court is discussing the malice which the law presumes in civil actions for libel. Says the court: “But the conclusion that, because in such cases it is said that malice is conclusively presumed, evidence upon the question of actual malice (that is, as to the motive or intent with which the publication was made) is incompetent, when offered under a sufficient answer, is entirely erroneous. The malice which by legal fiction is thus presumed to exist is known as ‘legal malice,’ as distinguished from actual or express malice, or malice in fact. ... In many cases there may be no malice at all, and no intent to injure, or, at most, thoughtlessness or negligence. It is well settled that in such cases the absence of actual malice will not defeat the action, and the party injured may recover his actual damages. In other words, the absence of malice is never a complete defense. But where actual malice is charged in the complaint, and more than compensatory damages are claimed for the injury—and that is this case—the actual motive or intent with which the publication was made becomes an important, and indeed a vital fact, from which to determine the amount of damages to be awarded.” But still further to complicate the consideration, even greater confusion results from the fact that in some jurisdictions the malice which is a legal fiction is termed “implied malice”—as in New York, where the definition of libel is “a malicious publication,” etc. (See Ullrich v. New York Press Co., 23 Misc. 168, [50 N. Y. Supp. 788]; Van Ingen v. Star Co., 1 App. Div. 429, [37 N. Y. Supp. 114]; Walker v. Best, 107 App. Div. 304, [95 N. Y. Supp. 151] ; Krug v. Pitass, 162 N. Y. 154, [76 Am. St. Rep. 317, 56 N. E 526]; Prince v. Brooklyn Daily Eagle, 16 Misc. 186, [37 N. Y. Supp. 250].) In the last case cited, a protest against the misuse and confounding of terms is voiced in the following language:— “The confusion in respect of the meaning of the word ‘malice’ in actions for libel and slander, involved in trying to distinguish between two kinds of malice, whereas there is and can be in such actions only one kind, seems to be preserved now only because it has existed so long, even though against many protests. The only malice there is in actions for lib^s- or slander is such as is proved. When such malice exists, punitive damages may be given for it.” It must therefore be apparent without more prolonged exposition, that even our own law of libel cannot be satisfactorily discussed without an understanding of the meaning that is to be given to words and phrases; and we shall, for the purposes of this discussion, define malice as it is defined by section 7 of the Penal Code,—a state of mind arising from hatred or ill-will, evidencing a willingness to vex, annoy, or injure another person. We shall call this “malice” malice in fact. We shall bear in mind that it may be established either by direct proof of the state of mind of the person, or by indirect evidence so satisfying to the jury that they may from it infer and find the existence of this malice in fact. We shall define malice in law as being that malice which the law presumes (either conclusively or disputably) to exist upon the production of certain designated evidence, which malice may be fictional and constructive merely, and which, arising, as it usually does, from what is conceived to be the necessity of proof following a pleading, which in turn follows a definition, is to be always distinguished from true malice or malice in fact. The following brief quotations—and they could be indefinitely multiplied—will show how the courts have been compelled to struggle with the meanings and definitions of malice. In Hemmens v. Nelson, 138 N. Y. 517, [34 N. E. 342, 20 L. R A. 440], the court was speaking of the malice necessary to he shown in an action for words uttered under a qualified privilege, the malice which we have designated malice in fact, and it says: “This kind of malice which' overcomes and destroys the privilege is of course quite distinct from that which the law in the first instance imputes with respect to every defamatory charge, irrespective of motive.” And in Templeton v. Graves, 59 Wis. 95, [17 N. W. 672], the court, discussing what we have termed malice in fact, under the designation of express malice, says: “Such malice may be inferred from all the circumstances of the case; indeed, it would ordinarily be very difficult to prove its existence by direct evidence. But it is not to be inferred from the facts alone that the words are false and injurious to the plaintiff, although malice is implied from those facts. ’ ’ Exemplary damages. ' It has been said that malice is not a necessary ingredient, is no part of the gist of our civil action for malice. No particular harm can be worked by the declaration that malice is a necessary part of every action for libel, if it be understood that the particular malice there referred to is the constructive or fictional malice which we have designated malice in law. There is, however, a general provision of the law allowing punitive damages in the discretion of the jury, in an action not arising from contract—in other words, in any action sounding in tort, “where the defendant has been guilty of oppression, fraud, or malice, express or implied.” (Civ. Code, see. 3294.) Enough has been said to show what a fertile field for error is the language just quoted, when attempt is made to apply it to malice, express or implied, under all their varying definitions. Thus, express malice is sometimes employed synonymously with what we have designated malice in fact. Implied malice is as frequently used to designate the fictional malice of the law. So construed, section 3294 of the Civil Code would allow damages in libel suits in any and every case without regard to the actual existence of malice in fact. The manifest injustice of such an interpretation becomes at once apparent, when it is considered that the publisher of a libel is responsible for compensatory damages, even if the libel be published without his knowledge and against his will or assent, if so published by his authorized agents or employees. Such a construction of the law would make him also liable for punitive damages. It should be apparent that the malice, and the only malice, contemplated by section 3294 is malice in fact, and that the phrase ‘‘express or implied” has reference only to the evidence by which that malice is established; express malice thus meaning that the malice is established by express or direct evidence going to prove the actual existence of the hatred and ill-will; implied malice .referring to the indirect evidence from which the jury may infer the existence of this malice in fact. We say this should be evident from the reading of the section itself, under the maxim of noscitur a sociis. It is in those cases where the defendant has been guilty of oppression or fraud, or of a malice akin to oppression and fraud, that punitive damages may be awarded. But throughout the whole history of the law, whatever may be the mode of proving the existence of malice in fact, it is only upon some showing regarded by the law as adequate to estab: lish the presence of malice in fact, that is the motive and willingness to vex, harass, annoy, or injure, that punitive damages have ever been awarded. And this, the adjudications abundantly and without controversy establish. When consideration is paid to the fact that the sole object of an action at law is to return full compensation in terms of money for a legal wrong inflicted upon a plaintiff, and when in any action a plaintiff has been made whole, in contemplation of law, by the receipt of such an award in damages, it is indeed an anomaly to find that in any case more than full compensation may be awarded him. And it is well said in Haines v. Schultz, 50 N. J. L. 481, [14 Atl. 488], that “the engrafting of this notion (punitive damages) into personal suits has resulted in an anomalous rule; the doctrine of punitive damages being a sort of hybrid between a display of ethical indignation and the imposition of a criminal fine, but, whether we regard it in the one light or the other, it is the wrongful personal intention to injure that calls forth the penalty.” And this is necessarily so, for the law, having made full compensation for the act, can thereafter be concerned solely with the motive of the act. The wrongful act has been redressed by full compensation. The improper motive which actuated it may be punished by an award of exemplary damages. “Malice in fact,” says this court in Childers v. Mercury Pub. Co., 105 Cal. 284, [45 Am. St. Rep. 40, 38 Pac. 903], “is only material in libel as establishing a right to recover exemplary damages, or to defeat defendant’s plea that a publication is privileged.” And while in the cases this malice, the existence of which we have declared to be essential to a recovery in punitive damages, is sometimes called express malice, sometimes actual malice, sometimes real malice, and sometimes true malice, it is always in its analysis malice of‘the one kind, the malice of evil motive. (Witcher v. Jones, 17 N. Y. Supp. 491; Union Mutual Life Ins. Co. v. Thomas, 83 Fed. 803, [28 C. C. A. 96]; Miner v. Bradstreet Co., 170 Mo. 486, [73 S. W. 668]; 18 Am. & Eng. Ency. of Law, 2d ed., p. 1093; French v. Deane, 19 Colo. 504, [24 L. R. A. 387, 36 Pac. 609]; Inman v. Ball, 65 Iowa, 543, [22 N. W. 666]; Miller v. Kirby, 74 Ill. 242; Sedgwick on Damages, sec. 363.) While such malice in fact is essential to an award of exemplary damages, it may be proved directly or indirectly, that is to say by direct evidence of the evil motive and intent, or by legitimate inferences to be drawn from other facts and circumstances in evidence. To this proposition reference may be made to the cases of Nailor v. Ponder, 1 Marv. (Del.) 408, [41 Atl. 88], and French v. Deane, 19 Colo. 504, [24 L. R. A. 387, 36 Pac. 609]. Thus, in Brewer v. Jacobs, 22 Fed. 217, it is said: “It is express malice where the party evinces an intention to do a wrong, and implied where it is inferred from the character of the facts proven.” It is precisely in this sense that the words “express” and “implied” are used in the section of the code limiting the award of exemplary damages, and it is no other or different from the malice which must always be established to maintain an action for malicious prosecution. Thus, in Gonzales v. Cobliner, 68 Cal. 151, [8 Pac. 697], this court quotes from IIarltrader v. Moore, 44 Cal. 153, to the following effect: “Malice in fact must be shown in order to support the action (malicious prosecution) . . . and while the jury may find the fact of malice from the circumstances of the want of probable cause, or from other circumstances established in the case, they are not to be told that a wrongful charge made without probable cause is per se malicious in fact.” In Humphries v. Parker, 52 Me. 502, it is said: “There is no doubt that malice in fact, as distinguished from malice in law, is essential to the mainte- nance of an action for malicious prosecution.” And the principle is recognized and announced in the English courts in such cases as Hicks v. Faulkner, 8 Q. B. Div. 167, where it is said:— “It is true, as a general proposition, that want of probable cause is evidence of malice; but this general proposition is apt to be misunderstood. In an action of this description the question of malice is an independent one—of fact purely— and altogether for the consideration of the jury, and not at all for the judge. The malice necessary to be established is not even malice in law, such as may be assumed from the intentional doing of the wrongful act (see Bromage v. Prosser, per Bailey, J.), but malice in fact—malus animus—indicating that the party was actuated either by spite or ill-will towards an individual, or by indirect or improper motives, though these may be wholly unconnected with any uncharitable feeling towards anybody.” It should be added that when the Civil Code (sec. 47) speaks of privileged publications, and in section 48 declares that malice is not inferred from the publication of such matters, it means nothing but this malice in fact, as abundantly appears from the authorities above cited, and as is expressly laid down in such cases as Hemmens v. Nelson, 138 N. Y. 174, [34 N. E. 342, 20 L. R. A. 440], and Clark v. Molyneux, 3 Q. B. Div. 246. And, finally, it should be remarked that in all classes and kinds of cases in which exemplary damages are sanctioned, there must be made to appear to the satisfaction of the jury, the evil motive, the animus malus, shown by malice in fact, or by its allied malignant traits and characteristics evidenced by fraud or oppression. Indeed, section 41 of our Civil Code affords complete demon-. stration that it is the motive alone and not the act that lies at the foundation of an award of punitive damages by providing that “a minor or person of unsound mind, of whatever degree, is civilly liable for a wrong done by him, but is not liable in exemplary damages unless at the time of the act he was capable of knowing it was wrongful.” Imputed malice in fad. Since the animus malus must be shown to exist in every case before an award in punitive damages may be made against a defendant, since the evil motive is the controlling and essential factor which justifies such an award, it follows of necessity that no principal can be held in punitive damages for the act of his agent, unless the particular act comes within the principal’s specific directions or general suggestions, or unless the principal has subsequently ratified it, such ratification presupposing, it is said, original authorization. As to specific directions, of course nothing need be said. Under general suggestions would come that class of cases where the policy and conduct of a newspaper show that its proprietor has given his subordinates carte blanche to do anything and everything that will make the paper a financial success and demonstrate its superior enterprise as a news disseminator. Herein is implied a willingness of the proprietor to publish libels against anybody, and it would, of course, afford strong evidence of malice in fact, closely allied to oppression, in the case of each victim. Upon this, our own cases present a line of unbroken authority, and the decisions elsewhere are overwhelming. Upon the general proposition reference may be made to Wardrobe v. California Stage Co., 7 Cal. 118, [68 Am. Dec. 231]; Nightengale v. Scannell, 18 Cal. 315; Turner v. North Beach etc. Co., 34 Cal. 594; Wade v. Thayer, 40 Cal. 586; Warner v. Southern Pacific Co., 113 Cal. 105, [54 Am. St. Rep. 327, 45 Pac. 187]; Trabing v. California Nav. Co., 121 Cal. 137, [53 Pac. 644]; Nixon v. Bauer, (Cal.) 66 Pac. 221; Foley v. Martin, 142 Cal. 256, [100 Am. St. Rep. 123, 71 Pac. 165, 75 Pac. 842]; Railway Co. v. Prentice, 147 U. S. 101, [13 Sup. Ct. 261, 37 L. Ed. 97]; Western Union Tel. Co. v. Brown, 58 Tex. 170, [44 Am. Rep. 610]. While to the specific proposition that malice in fact is not imputable to the master merely from the act of the employee, reference may be made to Haines v. Schultz, 50 N. J. L. 481, [14 Atl. 488]; Detroit etc. Co. v, McArthur, 16 Mich. 447; Eviston v. Cramer, 57 Wis. 570, [15 N. W. 760]; Krug v. Pitass, 162 N. Y. 154, [76 Am. St. Rep. 317, 56 N. E. 526]; Clark v. Newsam, 1 Exch. 131; State v. Mason, 26 Or. 273, [46 Am. St. Rep. 629, 38 Pac. 130]; 26 L. R. A. 779 and note; and 4 Odgers on Libel & Slander, 367, where it is said:— “In all these cases the malice proved must be that of the defendant. If two persons be sued the motive of one must not be allowed to aggravate the damages against the other . . . Nor should the improper motive of an agent be matter of aggravation against the principal.” Burden of proof and nature of proof of malice in fact. It follows necessarily from the foregoing that, since malice in fact goes to the state of mind and evil motive of the defendant, the burden of proving the existence of that state of mind is, in every case, upon the plaintiff who seeks an award of punitive damages based upon its existence. The fact, like every other fact in issue, is to be determined by the jury, though there is always the reserved power and duty in the court, in a proper case, to instruct the jury that there is such an absence of evidence of the malice in fact, as to forbid an award in punitive damages. (Taylor v. Hearst, 107 Cal. 269, [40 Pac. 392]; Trading v. California Nav. Co., 121 Cal. 138, [53 Pac. 644].) As to the nature of the evidence, as has been said, it may be direct (or express, as the code names it), going to declarations, acts, and conduct of the defendant, showing personal ill-will toward the plaintiff, but it will more usually be indirect or inferred (the implied malice in fact of the code definition), and to this end of proving the malice inferentially all legitimate evidence is admissible bearing upon the general course of conduct of the defendant toward the plaintiff, the internal evidence furnished by the character of the libel, and any other specific facts and circumstances not in direct proof of the malice, but from which the existence may be logically inferred, herein including the circumstance, if it be found to exist, of wanton recklessness and heedlessness of plaintiff’s rights. When malice in fact is found to exist an award based upon it should bear relation to the gravity of that malice. For, surely, the man who in mere wantonness slaps another upon the cheek is not actuated by the same degree of malice as would be shown, if, brutally, and without provocation, he shot him down. Presumptions touching malice. Malice in fact does not arise as a legal presumption from the mere falsity and libelous character of the publication. It may be inferred from the intrinsic evidence of malice which the publication affords; but whether it does or not is for the jury to say. The presumptions that an unlawful act was done with an unlawful intent and that a person intends the ordinary consequences of his voluntary act (Code Civ. Proc., sec. 1963) are, in libel, presumptions going to malice in law and not to malice in fact They are important in libel only in those jurisdictions where, as has been said, malice is considered as the gist of the action. Says Folkard, (Slander & Libel, 7th ed., p. 206): “Where a libel has been published of the plaintiff by which actual or presumptive damage has been occasioned, the malice of the defendant is a mere inference of law from the very act; for the defendant must be presumed to 1 have intended that which is the natural consequence of his act. In such instances, therefore, it is unnecessary to give evidence of malice in fact, except for the purpose of enhancing the damages.” And Odgers, who, it will be remembered, in his learned work declines to consider the existence of any malice but malice in fact, sums up the English law as follows:— “Mere inadvertence or forgetfulness, or careless blundering, is no evidence of malice. (Brett v. Watson, 20 W. R. 723; Kershaw v. Bailey, 1 Exch. 743; 17 L. J. Ex. 129; Pater v. Baker, 3 C. B. 831; 16 L. J. C. P. 124.) Nor is negligence or want of sound judgment (Hesketh v. Brindle, (1888) 4 Times L. R. 199), or honest indignation (Shipley v. Todhunter, 7 C. & P. 690). That the words are strong is no evidence of malice, if on defendant’s view of the facts strong words were justified. (Spill v. Maule, L. R. 4 Ex. 232; 38 L. J. Ex. 138; 17 W. R. 805; 20 L. T. 675.) That the statement was volunteered, if it was defendant’s duty to volunteer it, is no evidence of malice. (Gardner v. Slade et ux., 13 Q. B. 796; 18 L. J. Q. B. 336.) That the statement is now admitted or proved to be untrue is no evidence that it was made maliciously (Caulfield v. Whitworth, 16 W. R. 936; 18 L. T. 527); though proof that defendant knew it was untrue when he made it would be conclusive evidence of malice. (Fountain v. Boodle, 3 Q. B. 5; Clark v. Molyneux, 3 Q. B. D. 237; 47 L. J. Q. B. 230.) Tf you want to show that a statement was malicious, it is not sufficient to show that it was not true.’ (Per North, J., in Hayward & Co. v. Hayward & Sons, 34 Ch. D. at p. 206; and see the observations of Williams, J., in Harris v. Thompson, 13 C. B. at p. 352.)” The only presumption of our law touching malice in fact is that announced in section 1962 of the Code of Civil Procedure, which declares as a conclusive presumption, the existence of “a malicious and guilty intent from the deliberate commission of an unlawful act for the purpose of injuring another.” But before this presumption arises, the jury is to find as facts: (1) the commission of an unlawful act; (2) that its commission was deliberate, and (3) that it was committed with the deliberate purpose of injuring another. In these three findings it will be noted are all the elements of malice in fact. With the enunciation of these principles and the understanding of these definitions, we may enter upon a consideration of the questions advanced for determination upon this appeal, with reasonable confidence and expectation of conveying a meaning free from uncertainty and doubt. 1. It is argued that the defendant Hearst is not liable for exemplary damages under the evidence. Herein it is said: “The fact that the defendant Hearst was absent from the scene of publication at the time of the publication, did not actually participate therein, and had no knowledge of any of the acts complained of, precluded any award of punitive damages against him.” Such a state of facts would unquestionably exempt a newspaper proprietor from liability for punitive damages in the absence of evidence, direct or indirect, that the publication, of libelous matter, though not of the particular libelous matter, was authorized by him, or sanctioned and ratified by him after knowledge of the fact. Plaintiff had established the publication of a series of articles containing grave charges and reflections upon his official and personal character and conduct. He had shown that the defendant Hearst had affirmed the truth of these charges by justification in his answer. Their falsity upon trial was sufficiently established. These and other facts and circumstances afforded evidence from which the jury could legitimately have inferred the existence of malice in fact, and more proof was required by the defendant to repel this inference than was actually offered. It was not sufficient merely to show—and to this extent only does the showing go—that the defendant was absent from the state and had no foreknowledge of the actual publication of these particular articles. Such a state of facts, in the mind of the jury, could well co-exist with positive instructions to attack the plaintiff’s character, leaving it to the employee to select the mode of attack. We are not to be understood as implying that such instructions did exist, but as stating merely the incontrovertible fact that where the evidence offered by the plaintiff is such fiiat from it the jury may infer the existence of malice in fact, the burden is cast upon the defendant of destroying this inference by proof that neither by general nor particular instructions were the publications authorized, and that neither in fact nor by his conduct were they ratified when knowledge of their publication: was brought home to him. To this extent the evidence of defendant failed to go, and for this reason it cannot be said that the evidence of plaintiff was insufficient to sustain a verdict against the defendant Hearst in punitive damages. 2. The court instructed the jury as follows: “You can only give as exemplary damages such sum as you believe to be the amount that should be assessed against the defendant against whom the lowest amount of exemplary damages should be given. If you find that exemplary damages are justified as against only one of them, you must not add anything at all for exemplary damages.” This instruction is more favorable to the appellants than the law warrants, and of course the appellants are not here complaining of it; but in contemplation of the new trial which must be ordered it becomes necessary to say that the instruction is mistaken in its law. In an action for compensatory damages against joint tort feasors,—the action contemplated by section 3333 of the Civil Code,—the law will not permit an apportionment of the damages, since it will not attempt to measure the degrees of culpability of the joint tort feasors; nor in an action for malicious prosecution, where the existence of malice in fact must be found against every tort feasor before any judgment can be rendered against him, will the law, for the same reason, admit or permit an apportionment of damages. Also, in those jurisdictions, as in England, where the verdict must be for a single sum, and there is included in it damages both compensatory and punitive, there can be, from the nature of the practice, but a single verdict against all defendants. But, under our system of procedure where the jury may, and upon the request of defendant, must segregate and make separate awards of compensatory and punitive damages, the reason for the rule we have been considering ceases to exist. There is nothing in our system to prevent the award of compensatory damages against all joint tort feasors who are found culpable, and to add a specific sum or sums, by way of punitive damages, against such of the tort feasors as the jury shall find to have been actuated by malice in fact. Not only is this permissible, but it tends to simplicity and avoids the multiplicity of actions which otherwise would become necessary. Peculiarly applicable is this principle to cases of punitive damages sought against both principal and agent, where the agent has been guilty of malice, fraud, or oppression, but where, as above pointed out, the improper motive of the agent is not made matter in aggravation against the principal. There is a scarcity of authority upon this proposition, but we think the principle as we have enunciated it is sound. In Mauk v. Brundage, 68 Ohio St. 89, [67 N. E. 152, 62 L. R. A. 477], the court had under consideration an instruction to the effect that if the jury awarded exemplary damages they must find that all the defendants had actual malice, and the court says:—■ “On the other hand, if it was intended, as we think it was, to instruct that in no event could compensatory damages be awarded against some and exemplary damages against others, then we think the instruction incorrect. Perhaps the question is not without difficulty, but it would appear practicable to allow a recovery of an amount against all as compensatory damages, and a further amount against some as exemplary damages, (and such verdict would be just if the evidence warranted it), and it would not seem impracticable to so shape the verdict as to bring about this result.” This, we think, enunciates the true rule. 3. In connection with, and as a part of its instructions upon the subject of exemplary damages, the court instructed the jury as follows:—■ “The proprietor of a newspaper in which a libel is published though he has no knowledge of the publication at the time, is as responsible for it as he would have been had it been done by him personally or under his direct supervision, and it is no defense to a libel that it was published in the absence of the proprietor by an employee, however competent said employee may be.” This instruction is unobjectionable as a rule of law governing the award of compensatory damages in 'an action for libel. It is misleading and mistaken as a part of the law governing the award of punitive damages, in which latter connection it was employed. The instruction was one proposed and given in the case of Dunn v. Hearst, 139 Cal. 239, [73 Pac. 138], where the plaintiff was seeking compensatory damages alone. For support of the soundness of the instruction that court made reference to the case of Taylor v. Hearst, 107 Cal. 269, [40 Pac. 392], which, as has been shown, was a case not involving punitive damages, and where the instruction to the jury forbade the award of punitive damages. 4. The court instructed the jury as follows :— “In order to recover exemplary or punitive damages, it is necessary that there should be on the part of the defendant malice toward the plaintiff and this malice is of two kinds: First, express malice, or, as it is known in the law, malice in fact; and, second, that malice which is not connected by any personal feeling on the part of the defendant, but which the law regards as a sufficient invasion of the rights of the plaintiff to sustain exemplary damages by reason of the carelessness, negligence, or willful disregard of the rights of the plaintiff by the defendant as to impute'to the defendant what is lmown in law as implied malice or malice in law, as distinguished from express malice. “In order to recover exemplary damages, in addition to actual or compensatory damages, it is necessary for you to find from the evidence either express malice or implied malice as above defined on the part of the defendants, or the particular defendant or defendants against whom such exemplary damages are assessed, for without such malice, either express or that which the law implies by reason of the carelessness or negligence of the defendant or defendants, exemplary damages may not be awarded.” It will be noted that by these instructions the trial court defined express malice to be malice in fact, and implied malice to be malice in law, and further declared that exemplary damages could be awarded by the .jury upon a finding of either malice in fact or malice in law. That the court in this fell into the common error of confounding the different meanings given to malice, must be apparent from what has already been said. It was the equivalent, as has been pointed out, of telling the jury that malice in law (which is always conclusively presumed from the publication of an article libelous per se in those jurisdictions where malice is of the essence of a civil libel) was sufficient as the basis of an award for punitive damages; and thus, in effect, declared that in the case of every false and libelous publication punitive damages could be awarded. But to remove the question from possible doubt in the minds of the jury, the court further instructed them as follows: “Malice in law is defined as a wrongful act done intentionally without just cause or excusé,”-—-and thus declared to the jury in terms that punitive damages could be awarded upon their finding of this malice which the law always when necessary conclusively presumes to exist. What has already been said establishes the serious substantive error of these declarations. But, further the court in the same instruction advised the jury that malice in law consists in that, “which the law regards as a sufficient invasion of the rights of the plaintiff to sustain exemplary damages by reason of the carelessness, negligence or willful disregard of the rights of the plaintiff by defendant.” Prom this the jury could only have understood that the law regards carelessness or negligence as establishing malice in law, and that malice in law will support an award in punitive damages. But the truth is that mere negligence or mere carelessness can never be evidence of malice in fact. In the same act they cannot even co-exist. Malice necessarily imports an evil purpose. Negligence necessarily implies an absence of intent or purpose. The train dispatcher who inadvertently or mistakenly telegraphs instructions from which a wreck ensues, is guilty of no evil motive, but of negligence pure and simple. If he sends the same message designedly there is no element of negligence. He is guilty of malice in fact. It is sometimes said that malice in fact may be inferred from “gross negligence”—a phrase somewhat in vogue in the earlier cases, but now practically abandoned in the learning and literature of the law. (Milwaukee etc. Ry. Co. v. Arms, 91 U. S. 489, [23 L. Ed. 374]; Wilson v. Brett, 11 Mees. & W., 113.) But even in those cases the gross negligence was defined as negligence that evidenced a wanton and reckless disregard of the consequences and of the rights and of the feelings of others. And herein, and by this very definition, it is shown that the gross negligence thus meant in itself displayed an active and evil intent. Thus it is said in Philadelphia etc. Ry. Co. v. Quigley, 21 How. (U. S.) 202, [16 L. Ed. 73], discussing the liability of a defendant for exemplary damages in a civil action for libel: “Whenever the injury complained of has been inflicted maliciously or wantonly and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person, but the malice spoken of in this rule is not merely the doing of an unlawful or injurious act. The word implies that the act complained of was conceived in the spirit of mischief or of criminal indifference to civil obligations.” And to the effect that negligence is not to be confounded with malice, and that proof of negligence does not justify an inference of malice, see Moody v. McDonald, 4 Cal. 297; Yerian v. Linkletter, 80 Cal. 135, [22 Pac. 70]; Badostain v. Grazide, 115 Cal. 425, [47 Pac. 118] ; Spencer v. San Francisco Brick Co., 5 Cal. App. 126, [89 Pac. 851]; Jenkins v. Gilligan, 131 Iowa, 176; 108 N. W. 237, 239; Arkansas etc. Ry. Co. v. Stroude, 77 Ark. 109, [113 Am. St. Rep. 130, 91 S. W. 18]; East Tennessee etc. Ry. Co. v. Lee, 90 Tenn. 570, [18 S. W. 268]; Peterson v. Western Union Tel. Co., 72 Minn. 41, [71 Am. St. Rep. 461, 74 N. W. 1022, 40 L. R. A. 661]. 5. The jury was instructed as follows:—■ “If you should find that the article or articles in question was or were published wantonly, recklessly and with an utter disregard as to whether true or false, then I charge you, the plaintiff is entitled to recover exemplary or punitive damages as well as compensatory.” The vice of this instruction is that it tells the jury that, upon finding malice in fact, the plaintiff is entitled, as of right, to an award of punitive damages. A plaintiff, upon establishing his case, is always entitled of right to compensatory damages. But even after establishing a case where punitive damages are permissible, he is never entitled to them. The granting or withholding of the award of punitive damages is wholly within the control of the jury, and may not legally be influenced'by any direction of the court that in any case a plaintiff is entitled to them. Upon the clearest proof of malice in fact, it is still the exclusive province of the jury to say whether or not punitive damages shall be awarded. A plaintiff is entitled to such damages only after the jury, in the exercise of its untrammeled discretion, has made the award. It follows, therefore, that the courts have felt compelled rigidly to suppress such an invasion of the jury’s prerogative, and we find in Rail-road Co. v. Castineau, 83 Ky. 119, that it was held error to instruct the jury that if the defendant was guilty of willful neglect they ought to award punitive damages; in Hawk v. Ridgway, 33 Ill. 473, it was held error to instruct the jury that they must, after finding the fact, give exemplary damages; in Boardman v. Goldsmith, 48 Vt. 403, where the evidence was sufficient to support a judgment in exemplary damages, it was held error to instruct the jury that they must give them; in Ferguson v. Moore, 98 Tenn. 342, [39 S. W. 341], it was held error to instruct the jury that it was their cki-ty to award punitive damages; in Gambrill v. Schooly, 93 Md. 48, [86 Am. St. Rep. 414, 48 Atl. 730, 52 L. R. A. 87], it was held that it was error to reject defendant’s instruction “since thereby the jury were practically told that they must give exemplary damages, and, where there is evidence sufficient to uphold a verdict for