Longsworth v. Curson , 56 Cal. App. 489 ( 1922 )

The letter complained of does not show malice on its face. The evidence showed, without substantial contradiction, that it was written and published without malice by certain of the employees in the tax collector's office to the tax collector himself. All of these persons were interested in the matter of the appointment of the plaintiff to an official position in that office. It was therefore published upon a privileged occasion and was a privileged publication within the meaning of subdivision 3 of section 47 of the Civil Code, and the nonsuit was properly granted on that ground.

The letter does not charge that the plaintiff was in fact a "slacker," but only that he had a "well-known reputation" as such. The evidence shows that he had that reputation among the employees in the office. The question whether or not his conduct justified that reputation is not decisive of the question whether or not such repute existed. The statements in the opinion of the district court as to his conduct are not in all respects supported by the record. The plaintiff denied that he had ever said to any person that he was a conscientious objector and was personally and religiously opposed to the war. His father and mother did not, as the opinion says, leave California for their home in Ohio, during the month in which plaintiff registered for the draft, that is, in September, 1918, but remained in California until September, 1919. The district court evidently mistook the date as given in the record. It does appear, however, and without contradiction, that neither his father nor mother were dependent on him for support in September, 1918, or at any other time, and that his sister was not dependent on him at that time, nor for the three preceding years.

We do not approve of the statement in the opinion of the district court that the plaintiff in an action for libel for the publication of such a letter as that here complained of must show "that the person making it was actuated by express malice, and the burden of proving malice is on the plaintiff."

[5] Under our code if a publication is libelous on its face, or is shown to be so by extrinsic evidence, the plaintiff may recover compensatory damages without proof of malice. [6] When the defendant pleads that the publication was made without malice and upon a privileged occasion of the character defined in either subdivisions 3, 4, or 5 of section 47, the defendant must first make a prima facie showing of the absence of malice, and then, but not until then, the plaintiff may in rebuttal prove actual malice on the part of defendant. (Snively v.Record Pub. Co., 185 Cal. 565 [198 P. 1, 6].) [7] It may be added that the plaintiff cannot recover punitive damages without pleading and proof of actual malice. Actual malice was alleged and punitive damages were claimed in the complaint, but there was no proof to support the allegation. For these reasons we are satisfied with the decision affirming the judgment.

The petition for rehearing is denied.

Shaw, C. J., Wilbur, J., Lawlor, J., and Lennon, J., concurred.