California, United States of America
The following excerpt is from Shumate v. Johnson Pub. Co., 139 Cal.App.2d 121, 293 P.2d 531 (Cal. App. 1956):
'In this publication malice in law is not only conclusively presumed, but such malice in fact is implied or presumed as to establish prima facie the right of plaintiff to exemplary damages. In other words, the existence of malice in fact is sufficiently shown by the publication to make the question an issue before the jury. That exemplary damages may be based alone upon a publication libelous per se, we have many authorities from many states. [Citations.] In Warner v. Press Pub. Co. [132 N.Y. 181, 30 N.E. 393], the principle is thus declared: 'The plaintiff gave evidence of malice when she proved the falsity of the libelous publication; and, in the absence of evidence on the part of the defendant tending to show that it had neither the desire nor the intention to wrong her, it would have been the duty of the court to instruct the jury that the plaintiff might be awarded exemplary damages in their discretion; but testimony was adduced on the part of the defendant tending to prove the absence of actual malice on his part towards the plaintiff, which taken in connection with the evidence of malice which the law imputed when the falsity of the libel was established, presented a question of fact whether malice existed in the publication. If found to exist, then, in their discretion, the jury could award exemplary damages.' While there may be authority in some states opposed to the principle declared in the foregoing citation, yet in this state, in view of section 3294 of the Civil Code, to which we have adverted, there would seem to be no question as to the true rule.'
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