dissenting: The issue squarely presented by this case is seldom presented to an appellate court in a libel *8action, that is, where a plaintiff has sustained his burden of proof to show pecuniary damages as a result of the libelous publication, but sought no recovery for damage to reputation.
It is generally said in decisions on libel and slander that defamation is an invasion of the interest in reputation and good name, but the issue here was not presented in the great mass of cases written on the subject.
Prior to Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L.Ed.2d 789, 94 S.Ct. 2997 (1974), our court and many other state courts recognized libel per se. This involved words from which malice was implied and damage was conclusively presumed to result. Under that rule even a prostitute could recover .damages for libel whether her reputation and good name was actually damaged or not. The plaintiff was not required to establish damage by proof.
One must ask what can be the pecuniary damage to a hog farmer’s reputation when he is libeled by a publication, which prior to Gertz was a libel per se.
Reputation is nothing more than mass hearsay, and the court has taken the position that the $100,000 proven pecuniary damages to the plaintiff, established to the satisfaction of the jury, must “piggy back” on damages to mass hearsay. The text writer would say:
“Defamation is not concerned with the plaintiff’s own humiliation, wrath or sorrow, except as an element of ‘parasitic’ damages attached to an independent cause of action.” Prosser, The Law of Torts, p. 737 (4th ed. 1971).
The general rule on damages is that mental pain and suffering in connection with a wrong which, apart from such pain and suffering, constitutes a cause of action is a proper element of damages where it is the natural and proximate consequence of the wrong. 25 C.J.S., Damages § 63.
In this case Gobin, the plaintiff hog farmer, sought no pecuniary damages to reputation at his last trial in the district court. This situation did not arise until shortly before the hearing in the trial court now on review. In Gobin v. Globe Publishing Co., 216 Kan. 223, 531 P.2d 76 (1975) (Gobin I) and Gobin v. Globe Publishing Co., 229 Kan. 1, 620 P.2d 1163 (1980) (Gobin II), the issue of damages to reputation was pled and was a viable issue in the case. Language in Gobin I and Gobin II, therefore, is not authority for the court’s decision herein.
Time, Inc. v. Firestone, 424 U.S. 448, 47 L.Ed.2d 154, 96 S.Ct. *9958 (1976), on certiorari from the Florida Supreme Court (Firestone v. Time, Inc., 305 So. 2d 172 [Fla. 1974]) clearly establishes that Gertz does not command the decision our court is making herein. In the opinion the United States Supreme Court said:
“We believe there is ample support for the jury’s conclusion, affirmed by the Supreme Court of Florida, that this was not the case. There was, therefore, sufficient basis for imposing liability upon petitioner if the constitutional limitations we announced in Gertz have been satisfied. These are a prohibition against imposing liability without fault, 418 U.S., at 347, and the requirement that compensatory awards ‘be supported by competent evidence concerning the injury.’ Id., at 350.
“As to the latter requirement little difficulty appears. Petitioner has argued that because respondent withdrew her claim for damages to reputation on the eve of trial, there could be no recovery consistent with Gertz. Petitioner’s theory seems to be that the only compensable injury in a defamation action is that which may be done to one’s reputation, and that claims not predicated upon such injury are by definition not actions for defamation. But Florida has obviously decided to permit recovery for other injuries without regard to measuring the effect the falsehood may have had upon a plaintiff’s reputation. This does not transform the action into something other than an action for defamation as that term is meant in Gertz. In that opinion we made it clear that States could base awards on elements other than injury to reputation, specifically listing ‘personal humiliation, and mental anguish and suffering’ as examples of injuries which might be compensated consistently with the Constitution upon a showing of fault. Because respondent has decided to forgo recovery for injury to her reputation, she is not prevented from obtaining compensation for such other damages that a defamatory falsehood may have caused her.
“The trial court charged, consistently with Gertz, that the jury should award respondent compensatory damages in ‘an amount of money that will fairly and adequately compensate her for such damages,’ and further cautioned that ‘[i]t is only damages which are a direct and natural result of the alleged libel which may be recovered.’ App. 509. There was competent evidence introduced to permit the jury to assess the amount of injury. Several witnesses testified to the extent of respondent’s anxiety and concern over Time’s inaccurately reporting that she had been found guilty of adultery, and she herself took the stand to elaborate on her fears that her young son would be adversely affected by this falsehood when he grew older. The jury decided these injuries should be compensated by an award of $100,000. We have no warrant for re-examining this determination. Cf. Lincoln v. Power, 151 U.S. 436 (1894).” 424 U.S. at 459-61.
The Florida Supreme Court is not the only court which has taken the position that actual damages in a libel action need not be parasitic to actual damage to reputation. In Freeman v. Cooper, 390 So. 2d 1355 (La. App. 1980), an attorney sued for libel and failed to show his professional reputation had been injured. The Court of Appeal of Louisiana held mental suffering *10alone, or only injured feelings which must inevitably be inferred from libelous statements, can be made the basis of a damage award.
The law adopted by the court in this case is discriminatory in that it does not protect persons libeled whose reputation cannot be damaged.
It is respectfully submitted the judgment of the lower court should be affirmed on the point covered by the Court’s opinion.