WERNER v. SOUTHERN CALIFORNIA ASSOCIATED NEWSPAPERS (1949)

The sole question to be determined in this action is the constitutionality of section 48a of the Civil Code.¹ That section has no effect on the right to speak, write and publish freely on any subject. Its sole purpose is to limit the character and therefore the amount of damages that may be recovered by one who suffers injury by reason of the written or spoken word.

The complaint contains the conventional allegations in an action for libel: the publication in defendant's newspapers, wantonly, recklessly and with disregard as to its truth or falsity, of a false and unprivileged story concerning plaintiff, charging that he had been convicted of bribery and grand theft and had been sentenced to San Quentin Prison therefor; that the statement was false and was either known to or easily ascertainable by defendant to be false; that the publication was made with actual malice, and with intent to injure, disgrace and defame plaintiff and to expose him to hatred, contempt, ridicule and obliquy, to his damage in the sum of $100,000.

Defendant's demurrer to the complaint was sustained. Upon plaintiff's declining to amend an order and judgment of dismissal was entered, from which plaintiff has appealed. There is also a purported appeal from the nonappealable order sustaining the demurrer.

Defendant contends that the complaint is fatally defective in that it does not allege, in the language of section 48a, (1) that within 20 days after the discovery of the libel plaintiff demanded of defendant a retraction and defendant failed to make such retraction; (2) that plaintiff has failed to allege special damages; (3) that plaintiff has prayed for compensatory and punitive damages but is not entitled thereto because the libel was printed in a newspaper.

Plaintiff maintains that the complaint states a cause of action in proper form for the reason that section 48a is in violation of (1) the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States, (2) subdivision 33 of section 25 of Article IV of the State Constitution,² and (3) section 9 of Article I thereof.³

The constitutionality of section 48a has not heretofore been raised. That section has been cited only twice—in Behrendt v. Times-Mirror Co., 30 Cal.App.2d 77, 82, 85 P.2d 949, and Harris v. Curtis Publishing Co., 49 Cal.App.2d 340, 343, 121 P.2d 761. In neither case was the validity of the act questioned but in each timely demand for retraction was made.

The rights secured to all persons are set forth in Part II of Division 1 of the Civil Code. Section 43 provides that every person has the right to protection from, among other things, defamation. Section 44 provides that defamation is effected by libel or slander. Libel is defined in section 45.⁴

Section 9 or Article I of the Constitution of California guarantees the right to every person to speak and write freely ‘being responsible for the abuse of that right.’ That provision does not contemplate that the Legislature may abridge or curtail the responsibility fo the writer or publisher of libelous matter concerning another. The framers of the Constitution intended just what they expressed in plain language—that every publisher or writer shall be responsible to aggrieved persons for what he publishes or writes in the dissemination of his views; that every publisher and writer shall be fully responsible for his words—not partially responsible; that all persons shall be responsible alike—not that some shall be fully responsible, others only in part, and some not at all. If liability for damages may be limited by the Legislature in one particular it may be limited in another and another until the legislative power shall have been exercised to such an extent that the import and reality of the constitutionally imposed responsibility will have vanished leaving no more substance than the grin of Alice's Cheshire eat.

Section 48a places a limitation on the right of recovery of damages to reputation and for shame, mortification and hurt feelings, no matter how scurrilous and false the statements may be. In order to maintain an action therefor a victim of libel must serve a notice on the publisher demanding a correction and if correction is published as provided in the statute such damage cannot be recovered at all. Without making demand the libeled person may recover special damages, that is only such as he proves he has suffered in respect to his property, business, trade, profession or occupation. ‘There is no room for holding in a constitutioal system that private reputation is any more subject to be removed by statute from full legal protection than life, liberty, or property.’ Park v. Detroit Free Press Co., 72 Mich. 560, 40 N.W. 731, 733, 1 L.R.A. 599, 16 Am.St.Rep. 544.

In the Park case the court declared the Michigan statute,⁵ adopted in 1885, invalid and beyond the power of constitutional legislation. The act provided that a plaintiff should recover only actual damages if it appeared that the libelous article was published in good faith and its falsity was due to mistake or misapprehension, and if a correction was published in the manner provided in the statute. The definition of the term ‘actual damages' was substantially the same as that of ‘special damages' in section 48a of our Civil Code. The court pointed out that the proof of actual damages as defined in the act would be impracticable in some cases and difficult in all; that damage to property, business, profession or occupation would not be the true damage in a large share of the worst cases; that if the income of a libeled person is from a fixed investment or from a salary or business not depending upon his repute, there would be no direct loss or damage to him unless the publication caused him to be separated from his office or employment. The Park case was approved in McGee v. Baumgartner, 121 Mich. 287, 80 N.W. 21, 22, wherein the court declared that a statute prohibiting damages to reputation is clearly unconstitutional.

A statute of Ohio⁶ provided that if a publication was made in good faith through mistake of fact, but with reasonable ground for believing it to be true, and the publisher upon demand therefor published a retraction, the presumption of malice should thereby be rebutted. In Byers v. Meridian Printing Co., 84 Ohio St. 408, 95 N.E. 917, 920, 38 L.R.A.,N.S., 913, the statute changing the presumption and burden of proof as to malice in libel cases was held to be contrary to the Fourteenth Amendment in that it abridged the plaintiff's rights and privileges. The court said: ‘Under this statute the plaintiff is given the choice of resorting to the courts without the right of demanding a retraction, or of demanding a retraction, and, if given, being limited in his right of recovery; and if he chooses either course, he must do it at his own peril and without any recompense whatever.’

A Kansas statute similar to that of California was held to be void in Hanson v. Krehbiel, 68 Kan. 670, 75 P. 1041, 1042, 64 L.R.A. 790, 104 Am.St.Rep. 422, where the act is set forth in full. It limited the right of recovery in a libel case to actual damages, as defined, when retraction had been made after demand and it was shown that the publication was made in good faith. Said the court, general damages ‘are designed to compensate for that large and substantial class of injuries arising from injured feelings, mental suffering and anguish, and personal and public humiliation, consequent upon the malicious publication of the false and libelous matter.’ The court pointed out that the statute does not deny remedy for a portion of the damage suffered by the victim of the libel but for the larger class of injuries—suffering, anguish, humiliation—he is without remedy. The argument that retraction reinvested the libeled person with his good name and accomplished all that would be achieved by a verdict of a jury was rejected.

In North Carolina the statute relating to damages for libel was substantially the same as the Michigan act except that it did not contain a definition of ‘actual damages.’ In Osborn v. Leach, 135 N.C. 628, 47 S.E. 811, 66 L.R.A. 648, where the text of the act is quoted, the plaintiff was held to be entitled to recover actual damages, which the court calls compensatory damages, and which include damages for (1) pecuniary loss, direct or indirect, or special damages, (2) for physical pain and inconvenience, (3) for mental suffering, and (4) for injury to reputaton. The court quoted at length with approval from Hanson v. Krehbiel, (Kan.) supra, and Park v. Detroit Free Press Co., (Mich.) supra, and held that since compensatory damages for a wrong are property, a person cannot be deprived of the right to recover such damages by a ‘legislative adjudication’ beforehand that a newspaper's retraction of a libelous article is full compensation for the injury. The provision for retraction was construed as affording an opportunity to escape only punitive damages when there is good faith, honest mistake and reasonable ground of belief of the truth of the article, and with this limitation was held to be an appropriate remedy for newspapers and periodicals and not a discrimination forbidden by the Constitution. The provision for notice by the plaintiff before bringing the action, said the court, was only for the purpose of furnishing the defendant opportunity to publish a retraction, the effect of which could extend no further than to relieve him from punitive damages even when good faith, honest mistake and reasonable ground of belief were proved by the defendant.

The Constitutions of Ohio, Kansas and North Carolina each contained a guarantee that every person, for an injury done him in his land, goods, person or reputation, shall have remedy in due course of law. It has been suggested that such a guarantee in the respective bills of rights of those states furnished the basis for striking down the limitation on the right to recover damages for libel. While the courts in each of the cited decisions rested on such constitutional guarantee as one of the reasons for invalidating the statute, yet they relief just as emphatically on the other reasons to which we have referred. The Michigan court voided a similar statute notwithstanding there was no comparable provision in the Constitution of that state.

Section 48a does not operate on all persons alike. Privileges and immunities are guaranteed to one class of persons, newspaper publishers and radio broadcasters, that are denied to all others. The members of the favored class, under the conditions provided in the statute, are relieved from liability for injury to reputation, even for intentionally false statements, while all others are held to full and strict accountability under all circumstances for both general and special damages. It ‘is not competent for the legislature to give one class of citizens legal exemptions from liability for wrongs not granted to others; and it is not competent to authorize any person, natural or artificial, to do wrong to others without answering fully for the wrong.’ Park v. Detroit Free Press Co., 72 Mich. 560, 40 N.M. 731, 734, 1 L.R.A. 599, 16 Am.St.Rep. 544, supra.

It is contended that the statute escapes condemnation as class or special elgislation by reason of the fact that all newspaper publishers and all radio broadcasters are included in the special class upon which the statute operates. The producers of magazines, periodicals and other forms of publication are not included within the exemption from liability. Furthermore, the encompassing of all persons within a given perimeter of action does not solve the question. The statute involved in the cases of Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249; Takahashi v. Fish and Game Comm., 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478, and Perez v. Sharp, 32 Cal.2d 711, 98 P.2d 17, s. c. sub nom. Perez v. Lippold, 32 Cal.2d 711, 198 P.2d 17, imposed restrictions on all persons within the classes named in the respective statutes. The laws were invalidated in the Oyama and Takahashi cases because persons ineligible to citizenship (in these cases Japenese) were placed in a class separate from all other persons and inhibitions were imposed upon them to which others were not subjected. In the Perez case the restrictions were upon the right of Negroes and persons of other specified races to marry white persons but were not applicable to persons of other races or colors.

A false statement is no more nor less injurious when published ina newspaper than the identical statement disseminated to the public by means of a letter or other medium should it be read by the same number of people. Under the California statute a newspaper publisher would be liable for no more than special damages unless the victim demanded a correction and the same was not published. However, should another person make similar libelous statements concerning the same individual by means of letters that were read by the same or the same number of people as those who read the newspaper, he would be libel for all damages suffered by the victim without the necessity of demand for a correction. The publisher would be given immunity which the other person could not claim. At the same time the libeled person would be denied the equal protection of the law in that he could recover damages of a limited character and in a less amount in one case than would be permitted in the other for a libel fo the same nature. The nonpublisher would be liable for a greater amount and for damages of a different nature than would the publisher. In either case the privileges and immunities of one are enlarged to a greater extent than of the other, and one is denied protection of the law equal to that given to the other.

The equal protection guaranteed by the Constitution forbids the selection of one person and the imposition upon him of burdens and liabilities that are not cast upon another similarly situated, nor may individuals be arbitrarily classified, subjecting one to special burdens and liabilities from which another is immune. Atchison, etc., Co. v. Matthews, 174 U.S. 96, 104–105, 19 S.Ct. 609, 43 L.Ed. 909, 913. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities. Shelley v. Kraemer, 334 U.S. 1, 22, 68 S.Ct. 836, 92 L.Ed. 1161, 1185, 3 A.L.R.2d 441.

The mere fact of classification is not sufficient to remove a statute from the inhibition of the equality clause of the Fourteenth Amendment, but it must appear that the classification has been made on a reasonable ground—a difference that bears a just and proper relation to the attempted classification. Gulf, etc., Co. v. Ellis, 165 U.S. 150, 165, 17 S.Ct. 255, 41 L.Ed. 666, 672.

Defendant contends that the statute does not absolve a publisher from responsibility for the abuse of his right to publish freely what he chooses since (1) the libeled person may always recover ‘special damages' as defined in section 48a—that is damages to his property, business, trade, profession or occupation, and (2) he may recover general, special and punitive damages should the newspaper fail to publish a correction after demand therefor. Section 9 of Article I of the Constitution declares that ‘every person’ is ‘responsible for the abuse of’ the right guaranteed him to speak, write and publish his sentiments freely on all subjects. The term ‘every person’ includes all persons, both natural and artificial, without exception. The Legislature is without power to shrink the horizon of the Constitution or to diminish any right guaranteed by it. The provision that ‘every person’ shall be responsible for the abuse of his privilege of speaking, writing or publishing his sentiments does not permit the construction that any person may be made only partially responsible. The Legislature is without authority to limit such responsibility or to circumscribe the right of an injured person to recover such damage, general or special or both, as he may sustain by reason of such abuse. The right to recover actual or compensatory damages is property and vests in the injured party immediately upon the commission of the wrong. Osborn v. Leach, 135 N.C. 628, 47 S.E. 811, 66 L.R.A. 648, supra. Since exemplary or punitive damages are awarded on grounds of public policy and not because the plaintiff is entitled thereto, they are not property and the power of the Legislature to restrict or to prohibit their recovery is not brought into question.

The right to recover actual damage is property and the constitutional guarantees of that right are the same as of other property rights, hence an injured party cannot be deprived thereof without due process of law, which means that he is entitled to a hearing and determination by a court of law. The publication of a retraction is not such a hearing and cannot be made a substitute for the constitutional right of trial by court or jury.

As emphasized in the Michigan case Park v. Detroit Free Press Co., 72 Mich. 560, 40 N.W. 731, 1 L.R.A. 599, 16 Am.St.Rep. 544 supra, proof of special damages would be impracticable in most cases and impossible where the victim of the libel relied on a fixed investment for his income or where he was employed on a salary and the publication did not cause him to be separated from his position.

Under defendant's theory, which we decline to accept, a newspaper would always be able to avoid general damages by publishing a correction in the manner specified in the code section, therefore no matter how foul and false a published statement may be or how loathsome a crime may be charged, the victim would be denied any relief whatsoever in the event (1) he should be unable to prove actual damage to his business or occupation, and (2) the newspaper published a correction or retraction. Shame, mortification and injury to reputation are counted at naught under the statute if a correction is published.

Defendant contends that a timely correction published as conspicuously as the libelous article would afford a remedy of equal or greater value than any damage he might recover. The answer to such argument is that the legislative theory of recompense for injury is not a valid substitute for the constitutional pledge that every person, no exception, is responsible for his acts.

The framers of the Constitution did not contemplate that its virility could be so impaired by the Legislature that the responsibility imposed on writers and publishers would be reduced to the extent that a mere correction or retraction would operate as a condonation of the publication of a libel or as an exculpation of a negligent, indifferent or reckless publisher. A retraction, and as well a plea of publication without malice, is admissible in mitigation of damages, but not to defeat entirely a plaintiff's right of recovery.

In contending that the Legislature had power to restrict the recovery of damages for libel, defendant relies on Langdon v. Sayre, 74 Cal.App.2d 41, 168 P.2d 57, which prohibits the common law right of action for breach of promise to marry. That decision is inapplicable since there is nothing in the Constitution providing for a remedy for such a breach. Defendant's quotation from Modern Barber Colleges v. California Stabilization Commission, 31 Cal.2d 720, 192 P.2d 916, 920, that ‘Except as the Constitution otherwise provides, the Legislature has complete power to determine the rights of individuals,’ is also inapplicable for the reason that the Constitution does ‘otherwise provide’ with reference to libel suits and the Legislature is without power to withdraw the guaranteed remedy.

In support of the setting apart of newspapers as a class to which special privileges and immunities may be constitutionally granted, defendant contends that such classification is proper for the reasons, among others, ‘1. That newspapers are expected and relied upon by the public to furnish dead-line spot news; 2. That under such circumstances it is virtually impossible to make any accurate check as to the authenticity of the news stories published.’ Such argument has mild support in Thorson v. Albert Lea Publishing Co., 190 Minn. 200, 251 N.W. 177, 180, 90 A.L.R. 1169, where, in discussing the Minnesota retraction statute, M.S.A. § 548.06, the court says that there cannot be long delays in the publication of information which the public is entitled to receive seasonably and because newspapers are performing an important public service they ‘are entitled to all reasonable protection.’ We disavow any theory that sanctions the publication of libelous statements under an immunity which limits the damages that may be recovered to such amount as the injured party has suffered in respect to his property, business or occupation. Under this theory a respected citizen who has honorably retired from his business, profession or occupation, with the hope and expectation of enjoying his declining years in peace and tranquility, would be denied the right to recover any damages whatsoever by reason of an obscene charge, known to be false and published maliciously, since (1) he could not have suffered damage in respect to his business or occupation because he had ceased to have one, and (2) he would be denied either general or exemplary damages by reason of the publication of a correction of retraction. Whatever may have been the injury to a blameless and reputable citizen in his feelings, whatever the humiliation, he would be remediless if a newspaper may publish falsehoods in the guise of ‘spot news.’

Judicial sanction cannot be given to defendant's theory that because newspapers are expected ‘to furnish dead-line spot news' and ‘to keep the public supplied with up to the minute news,’ it is ‘virtually impossible to make any accurate check as to the authenticity’ of what is published. This is a confession of impotency on the part of those whose business is to furnish accurate news to the public Truth, not falsehood, is news. While the public may demand dead-line spot news it also demands veracity and accuracy. News is a report of a recent event, intelligence, information about some person or thing: a falsehood is neither—it is a fabrication. A newspaper is not justified in publishing a false and scurrilous statement without making an examination as to its source and authenticity merely in order to furnish reading matter for those who read to escape boredom, for the prurient minded, the sensation seekers or those with depraved and perverted appetites for scandal. A publisher cannot be absolved from liability merely because he prints ‘spot news' without attempting to ascertain whether it be true or false. A basic essential for a newspaper's winning and holding the confidence and support of the reading public is its reputation for truth and accuracy.

In the instant case plaintiff alleges that the charge in defendant's news article that he had been convicted of two felonies is false. Defendant could have readily and quickly ascertained the authenticity of the statement from an examination of the public records. If the charge in the newspaper is false its publication is not justified and cannot be defended by the alleged public demand for spot news. A widespread desire for criminal or other sensational news does not excuse the publication of a libel, and there is no greater immunity to the publication of gossip in a newspaper than if publicized by some other medium. McAllister v. Detroit Free Press Co., 76 Mich. 338, 43 N.W. 431, 437, 15 Am.St.Rep. 318.

The only case brought to our attention that upholds defendant's contention that a statute limiting the liability of newspapers for libel is valid, is Allen v. Pioneer Press Co., 40 Minn. 117, 41 N.W. 936, 3 L.R.A. 532, 12 Am.St.Rep. 707. That case is not in harmony with the theory we have expressed nor with the decisions cited. It has been expressly disapproved in North Carolina and Kansas. See Osborn v. Leach, 135 N.C. 628, 47 S.E. 811, 815, 66 L.R.A. 648; Hanson v. Krehbiel, 68 Kan. 670, 75 P. 1041, 1043, 64 L.R.A. 790, 104 Am.St.Rep. 422. But the opinion in the Allen case recognizes that ‘a retraction is not a complete remedy for injury to reputation.’ [40 Minn. 117, 41 N.W. 938.] That case involved a matter of mistaken identity. In a similar case Behrendt v. Times Mirror Co., 30 Cal.App.2d 77, 85 P.2d 949, this court held that it was not error to admit evidence of injury to feelings, condition of plaintiff's mind, physical pain and mental anguish, humiliation and suffering upon which the jury could allow damages to compensate the plaintiff for the injury sustained as the natural and probable consequence of the libelous publication.

The cases cited from other jurisdictions do not, nor does our decision in the instance case, tend in the slightest degree to impair the freedom of a newspaper publisher or a radio broadcaster in publishing and speaking his views on any subject. Section 48a has nothing whatsoever to do with the freedom of speech or of the press. The independence of writers and speakers is fully guaranteed by the Constitution and was not enlarged by the adoption of that section, therefore their independence will not be abridged by its nullification. It deals solely with the character of damages recoverable by a libeled person under given circumstances and conditions and has no bearing on the constitutionally guaranteed right of every person to write and speak as he pleases. Hence a declaration that it violates other provisions of the Constitution does not curtail that right, but merely affirms the responsibility placed on writers and speakers by the Constitution which that section of the code diminishes in all cases and abrogates in some.

The order and judgment are reversed with directions to overrule the demurrer and to permit defendant to answer within a reasonable time. The purported appeal from the order sustaining the demurrer is dismissed.

I dissent. First: In my opinion the reasoning in Allen v. Pioneer Press Co., (40 Minn. 117), 41 N.W. 936, 3 L.R.A. 532, 12 Am.St.Rep. 707, upholding the constitutionality of a statute similar to section 48a of the Civil Code, sustains the validity of such section in conformity with an enlightened jurisprudence, and answers the arguments set forth in the majority opinion. I do not hold an antipathy for the fourth estate and radio broadcasters evidenced by the views expressed in the prevailing opinion. The free press of the United States of America, in more recent years aided by radio commentators, is and has been the first line of defense and the bulwark of the liberties of the free men and women of the United States. The fact has been demonstrated in this country by a century and a half of experience where we have had free and unfettered newspapers but for which the people would have long since been in mental and physical bondage equal to Hitleristic Germany or a communistic Russia. So important was a free press that by the first amendment the founders of the Constitution provided that ‘Congress shall make no law * * * abridging the freedom * * * of the press.’ Likewise the people of the state of California in their constitution have provided that ‘No law shall be passed to restrain or abridge the liberty * * * of the press.’ (Art. I, sec. 9, Const. of the State of California.)

Second: The fallacy of the argument supporting the majority conclusion is well illustrated by the statement in it: ‘Defendant could have readily and quickly ascertained the authenticity of the statement from an examination of the public records.’ It is a matter of common knowledge of which this court should take judicial notice (Chavez v. Times-Mirror Co., 185 Cal. 20, 23, 195 P. 666; Sewall v. Johnson, 165 Cal. 762, 772, 134 P. 704, Ann.Cas.1915B, 645; Southern Pac. R. Co. v. Painter, 113 Cal. 247, 253, 45 P. 320; Calhoun v. Calhoun, 81 Cal.App.2d 297, 302, 183 P.2d 922. See also Hammel v. Britton, 19 Cal.2d 72, 75, 119 P.2d 333), that plaintiff was convicted of bribery and grand theft in the Superior Court of Los Angeles County and sentenced to San Quentin prison. (People v. Werner, 29 Cal.App.2d 126, 84 P.2d 168; see also People v. Werner, 16 Cal.2d 216, 105 P.2d 927.) The convictions were subsequently reversed upon appeal. Nevertheless, the fact remains that plaintiff ‘had been convicted of bribery and grand theft and had been sentenced to San Quentin Prison.’ It is therefore obvious that the statement in the article being true, the article was not libelous. (Hanson v. Bristow, 87 Kan. 72, 123 P. 725, 726; Shields v. Chilton Co., 255 App.Div. 985, 8 N.Y.S.2d 276, 277 [leave to appeal to the Court of Appeals denied 256 App.Div. 820, 9 N.Y.S.2d 582].) Evidently defendant in the present action did the very thing the majority opinion says it should have done. If the conclusion reached in the majority opinion is permitted to stand it constitutes cogent evidence in support of the criticism so often expressed by laymen, that justice is not only blind but obtuse in ignoring facts which all know.

Since the statement made by defendant was in fact true it is manifest that no useful purpose would be accomplished by prolonging the present litigation.

Section 48a of the Civil Code was originally adopted in 1931 by the people of the state of California through their duly elected representatives and was subsequently amended in 1945 by the people of the state. In my judgment the act does not violate any provision of the constitution of the state of California and therefore I will not join in thwarting the desires of the people of this state as expressed through their duly elected representatives.

I would affirm the judgment of the trial court.

FOOTNOTES

1.  Sec. 48a of the Civil Code of California, as amended by Stats.1945, ch. 1489, p. 2762:‘1. In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast, as hereinafter provided. Plaintiff shall serve upon the publisher, at the place of publication or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected. Said notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.‘2. If a correction be demanded within said period and be not published or broadcast in substantially as conspicuous a manner in said newspaper or on said broadcasting station as were the statements claimed to be libelous, in a regular issue thereof published or broadcast within three weeks after such service, plaintiff, if he pleads and proves such notice, demand and failure to correct, and if his cause of action be maintained, may recover general, special and exemplary damages; provided that no exemplary damages may be recovered unless the plaintiff shall prove that defendant made the publication or broadcast with actual malice and then only in the discretion of the court or jury, and actual malice shall not be inferred or presumed from the publication or broadcast.‘3. A correction published or broadcast in substantially as conspicuous a manner in said newspaper or on said broadcasting station as the statements claimed in the complaint to be libelous, prior to receipt of a demand therefor, shall be of the same force and effect as though such correction had been published or broadcast within three weeks after a demand therefor.‘4. As used herein, the terms ‘general damages,’ ‘special damages,’ ‘exemplary damages' and ‘actual malice,’ are defined as follows:‘(a) ‘General damages' are damages for loss of reputation, shame, mortification and hurt feelings;‘(b) ‘Special damages' are all damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel, and no other;‘(c) ‘Exemplary damages' are damages which may in the discretion of the court or jury be recovered in addition to general and special damages for the sake of example and by way of punishing a defendant who has made the publication or broadcast with actual malice;‘(d) ‘Actual malice’ is that state of mind arising from hatred or ill will toward the plaintiff; provided, however, that such a state of mind occasioned by a good faith belief on the part of the defendant in the truth of the libelous publication or broadcast at the time it is published or broadcast shall not constitute actual malice.'

2.  Constitution, art. IV, sec. 25: ‘The Legislature shall not pass local or special laws in any of the following enumerated cases, that is to say: * * * Thirty-third—In all other cases where a general law can be made applicable.’

3.  Constitution, art. I, sec. 9: ‘Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. * * *’

4.  Civil Code.Sec. 45: ‘Libel 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.’

5.  Michigan Laws, 1885, pp. 353–354:‘An Act relative to suits for libel.‘Section 1. The People of the State of Michigan enact, In any suits brought for the publication of a libel in any newspaper in this State the plaintiff shall recover only actual damages if it shall appear that the publication was made in good faith and did not involve a criminal charge, and its falsity was due to mistake or misapprehension of the facts, and that in the next regular issue of said newspaper after such mistake or misapprehension was brought to the knowledge of the publisher or publishers, whether before or after suit brought, a correction was published in as conspicuous a manner and place in said newspaper as was the article sued on as libelous.‘Sec. 2. In any action or suit for the publication of a libel in any newspaper in this State, the plaintiff shall not be entitled to recover, in addition to actual damages, any greater sum than five thousand dollars.‘Sec. 3. The words ‘actual damages' in the foregoing section shall be construed to include all damages the plaintiff may show he has suffered in respect to his property, business, trade, profession or occupation, and no other damages.’

6.  Sec. 5094, Revised Statutes of Ohio, as amended in 1900, 94 Ohio Laws 295:‘Sec. 5094. In the actions mentioned in the preceding section, the defendant may allege and prove the truth of the matter charged as defamatory, and proof of the truth of the same shall be a complete defense to any claim for damages, and in every case the defendant may prove any mitigating circumstances to reduce the amount of damages. If it shall appear at the trial, (that) the publication complained of was made in good faith, through mistake of fact, but with reasonable ground for believing that the statements therein contained were true and that the publisher upon demand and (within) a reasonable time thereafter published a full and complete retraction in as public (a) manner as that in which said original publication was made, the presumption of malice attaching to or growing out of the publication of said libellous matter shall be thereby rebutted; provided that nothing contained in this act shall prevent the person libelled from alleging and proving actual malice on the part of the publisher and any special damage resulting to him therefrom.’[The ‘preceding section’ referred to in section 5094 relates to allegations and proof required in actions for libel and slander.]

WILSON, Justice.

MOORE, P. J., concurs.