tive proceedings, and the like. But liberty to discuss in the public prints these, and kindred matters, is not license, and the publication is only privileged when in presenting the facts, or comment thereon, a due and proper regard is had for the truth, and only such facts are stated as good faith, honest belief, or a reasonable investigation of the matter would warrant. The publication of false and defamatory matter, concerning a public officer, or a candidate for public office, or any other public personage, whether relating to his private character or public acts is not privileged.3

Ex parte judicial proceedings are not given the freedom of the press, as there would be a tendency to prejudice those around whom the law throws the presumption of innocence. So the report of judicial proceedings must be full and fair or the privilege is lost." The plead

3 State v. Keenan, 111 Ia. 286; Eikhoff v. Gilbert, 124 Mich. 353; Post Pub. Co. v. Moloney, 50 Ohio St. 71; Belknap v. Ball, 83 Mich. 583; Lewis v. Few, 5 Johns. 1. "When one becomes a candidate for public office, he thereby deliberately places his conduct, character and utterances before the public for their discussion and consideration. They may be criticised by the writer or speaker, and the law will protect such writer or speaker, providing that, in their statement of or concerning the facts upon which their criticisms are based, they preserve an honest regard for the truth or their criticisms are made in good faith, and in the honest belief, after reasonable investigation, that they are true." Myers v. Longstaff, 14 S. D. 98, 110.

*Rex v. Fisher, 2 Camp. 563; Usher v. Severance, 20 Me. 9. Contra, Metcalf v. Times Pub. Co., 20 R. I. 674; Kimber v. Press Assoc., 1 Q. B. 65; Beiser v. Scripps-McRea Pub. Co., 113 Ky. 383.

5Styles v. Nokes, 7 East. 493; Hart v. Sun Print. & Pub. Co., 79 Hun 358; Metcalf v. Times Pub. Co., 20 R. I. 674.

6

ings and papers filed in a case at law are not privileged until some judicial action has been taken thereon, and the publication of matters contained therein must rest for justification upon its non-libelous character, or its truth. No privilege exists for the publication of mere news items, but exemplary damages will not be awarded for false news items of a defamatory character if there has been no negligence in gathering the items and the publisher is not habitually engaged in the malicious detraction of individuals."

"When an author places his book before the public he invites criticism; and, however hostile that criticism may be, and however much damage it may cause him by preventing its sale, the critic is not liable in an action for libel, provided he makes no misstatements of any material facts contained in the writing, and does not attack the character of the author. The book and the criticism are both before the public.

998

Sec. 401-52. SAME SUBJECT-BURDEN OF PROOF-DAMAGES.-The burden of proof is on

"Park v. Detroit Free Press, 72 Mich. 560; Cowley v. Pulsifer, 137 Mass. 392; Barker v. St. Louis, etc., Co., 3 Mo. App. 377. Public court records are privileged. Searles v. Scarlett, 2 Q. B. 56.

'Barnes v. Campbell, 59 N. H. 128; Daily Post Co. v. McArthur, 16 Mich. 447; Crane v. Bennett, 177 N. Y. 106; Fitzpatrick v. Daily State Pub. Co., 48 La. Ann. 1116; Dem. Pub. Co. v. Jones, 83 Tex. 302; Upton v. Hume, 24 Ore. 420.

Dowling v. Livingstone, 108 Mich. 321, 327. The same is true of criticism of a picture or work of art. Battersby v. Collier, 34 App. Div. 347, 54 N. Y. S. 363; Triggs v. Sun Printing & Pub. Co., 179 N. Y. 144.

9

the plaintiff, where a defamatory publication is claimed to be privileged, to show that the matter is malicious as well as false, though its falsity may be presumed from its defamatory nature, and the existence of malice may be shown by intrinsic facts of style, tone and manner as well as the extrinsic facts of the expression of a malicious intent, or knowledge of the falsity of the charge. The questions of falsity and malice in such cases are for the jury; whether the publication is privileged is for the court unless the facts governing the existence of the privilege are in dispute, when it becomes a mixed question of law and fact for the jury under proper instructions from the court.10 When a privilege is claimed for a publication, it must be specially pleaded.1

In a suit for libel or slander the person injured may recover the actual damages suffered, also called compensatory damages, and also in certain cases, where express malice exists, and generally where the words are actionable per se, he may be entitled to exemplary or punitive damages. The actual or compensatory damages include loss of reputation, disgrace and mortification, injury to

9Coogler v. Rhodes, 38 Fla. 240; Nichols v. Eaton, 110 Ia. 509; Fresh v. Cutler, 73 Md. 87; Howard v. Dickie, 120 Mich. 238.

10 Conroy v. Pittsburg Times, 139 Pa. St. 334; Atwater v. Morning News Co., 67 Conn. 504; Garn v. Lockhard, 108 Mich. 196; Mauk v. Brundage, 68 Ohio St. 89; Parker v. Republic Co., 181 Mass. 392.

1Gudger v. Penland, 108 N. C. 593; Stuart v. Press Pub. Co., 83 App. Div. 467, 82 N. Y. S. 401. In Tennessee the defense of privilege may be made under the general issue. Cooley v. Galyon, 109 Tenn. 1.

the feelings, and the like, they need not be alleged or proved specifically; actual pecuniary damages may also be obtained as a part of the actual damage if specially pleaded and proved. The amount of damages to be recovered in all cases is for the jury to determine.2

Recovery may be had for slander of property, or of title to property, as well as of the person, but in these cases malice is never presumed, and the damages suffered must be alleged and proved.3

2 Jones v. Murray, 167 Mo. 25; Bishop v. Journal Newspaper Co., 168 Mass. 327; Taylor v. Hearts, 118 Cal. 366; Louisville Press Co. v. Fennelly, 105 Ky. 365; Long v. Tribune Printing Co., 107 Mich. 207; Childers v. Mercury Printing Co., 105 Cal. 284.

3 Gott v. Pulsifer, 122 Mass. 235; Holmes v. Clisby, 118 Ga. 820; Chesebro v. Powers, 78 Mich. 472; Butts v. Long, 94 Mo. App. 687; Burkett v. Griffith, 90 Cal. 532, 13 L. R. A. 707.

CHAPTER III.

OF THE LIABILITY OF THE MASTER OR EMPLOYER.

Sec. 401-53. SCOPE OF CHAPTER. The master or employer's liability by the rule of respondeat superior extends to all the wrongs done by the servant or agent while acting for the master and within the scope of the employment, and this is so though the master has been without fault or is ignorant of the wrongful act. The employer also owes a personal duty to all those who are under his control in regard to safeguarding them against injury while performing the tasks to which they are allotted, and for a failure to perform these duties he again becomes liable in an action by the servant injured through his default or negligence. It is both of these responsibilities which will be discussed in the present chapter.

Sec. 401-54. RESPONSIBILITY OF THE MASTER TO OTHERS FOR SERVANT'S WRONGFUL ACTS-GENERAL RULE.-"It is a general rule of law that a principal or master is civilly responsible for wrongs committed by his agent or servant while acting about the business of the principal or master and within the scope of the employment of the agent or servant. It would be difficult to quote any very distinct reason in support of it. One of the most familiar and extensive maxims of the law exacts of every per