Farrar v. Tribune Publishing Co.

Mallery, J.

(dissenting) — One Kupka libeled the respondent for the purpose of injuring him politically. Knowing his own inability to spread the libel effectively, he hired the appellant, an advertising medium, to give the libel a dissemination coextensive with its circulation. He, thus, succeeded in inflicting a great injury upon the respondent.

Prior to this case, the law afforded the victim of a libel a remedy to the full extent of the injury against such an advertising medium. No distinction was made between the amount of the advertiser’s liability and that of the advertising medium. The proof offered as the amount of the damage was, of course, subject to rebuttal as in all cases. Thus, both the advertiser and the advertising medium could controvert the victim’s proof as to the amount of the damage suffered by showing mitigating circumstances which *561 indicated a lesser amount of damage. The advertising medium has never before been permitted to establish a lesser liability than that of the advertiser by showing that it did not share the advertiser’s malice. Mitigating circumstances went to the amount of the damage, not to the question of which party was defending the action. Indeed, it has never been questioned that an advertising medium is actuated by the profit motive rather than malice.

And malice is not, in fact, an element of the liability of an advertising medium. Its liability is predicated upon its duty to exercise care in the conduct of its business so as not to indiscriminately injure the victims of an advertiser’s obvious malice. Had the rule been otherwise, only the advertiser, who had the malice, would have been liable, and the advertising medium, which had none, would have been immune. The majority opinion changes this universal and time-honored rule by abandoning the common-law duty of care as the basis for the advertising medium’s liability and substitutes some vague and undefined duty not to share the advertiser’s malice.

In doing this, the majority have not acted under the compulsion of stare decisis. Ott v. Press Pub. Co., 40 Wash. 308 , 82 Pac. 403 , is not in point. It in no way concerned a malicious advertiser and a nonmalicious advertising medium. In that case, a crusading editor promulgated the alleged libel as a matter of editorial policy when he sought to show the evil practice of employment agencies. If there was a libel it was his own, not another’s. He was allowed to introduce evidence of his instructions to his reporters regarding their scrupulous ascertainment of the true facts as mitigating circumstances. This was relevant upon the issue of punitive damages, which was in the case.

• We no longer allow punitive damages, and the rule, therefore, should be that the victim of a libel cannot recover more than his actual damage by proving malice. The appellant newspaper did not seek to show the absence of malice on the part of the advertiser. It sought to emphasize its own obvious lack of malice to escape liability for the full amount of the damage for which the advertiser would *562 have been liable. In permitting it to do so, the majority have applied a rule which might have relevancy as to punitive damages, but has none to a liability predicated upon a breach of a duty of care. This is like permitting a. motorist to mitigate damages for personal injuries upon the ground that he had no malice and did not intentionally injure the victim.

I dissent.