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Broadway; that said Henry did said work and put in said curbing, and said Callahan, though knowing that said Henry had done said work, issued acceptances to one Bashford; that in the fall of 1887 Johnson and Thompkins were putting in curbing on Sixteenth street, between Penn and Broadway, and that they got the curbing of Richard Cummins; that said Callahan condemned some of said stone, and said Cum. mins sold it to one Bashford, and Callahan allowed him to use it for curbing on another street." The reply was a general denial.

The evidence showed that plaintiff was, on the fourth day of November, 1889, superintendent of streets, and defendant was a member of the city council; that defendant had previously held the office of inspector of curbing and sidewalk construction; that some time previously defendant had introduced in the lower house of the council, of which he was a meniber, a resolution, bearing on plaintiff's official conduct, which had passed that house and gone to the upper house, where it then remained undisposed of. On this occasion a member raised a question of privilege, and a general discussion and criticism of plaintiff's official conduct followed, in which defendant spoke the words attributed to him, making special reference in what he said to the alleged misconduct set up in his special plea. 363 At the time no resolution, ordinance, motion, or report was before that house respecting plaintiff or his official conduct.

On the trial defendant offered to prove that those present who heard defendant's language understood it to refer to official misconduct of plaintiff in the matters referred to. He also offered to prove the reasons and motives which induced him to speak of plaintiff as he did. These offers were refused by the court.

Defendant, in support of his special plea, undertook to prove that, while plaintiff was inspector of curbing, he issued to one party a certificate for curbing put in by another. Under the ordinances the engineer was required, after completion of work, by the owner of the property charged therewith, to grant a certificate of the fact, which, when filed, exonerated the owner from liability to pay for the improveInent. Defendant offered in evidence a certificate of that character, which showed that the measurement had been made by plaintiff as inspector, but without designating who

had done the work. The court refused to permit this certificate to be read in evidence.

At request of plaintiff the court gave the jury the following instructions:

"1. The jury are instructed that, if they believe from the evidence that on November 4, 1889, the plaintiff, acting as superintendent of streets of Kansas City, and that defendant Ingram was a member of the common council of Kansas City, and at a meeting of the lower house of the common council, and in the presence of various people, the defendant maliciously used the following language of and concerning the plaintiff in his character of superintendent of streets, namely: ‘Now, I want to say something, and I want the reporters to get it. The superintendent of streets, this Callahan, is a downright thief, and I can prove 364 it.' And, if the jury further believe that said language was false and untrue, then the said jury should find for the plaintiff.

“ 2. Malice does not consist alone in personal spite or ill. will, but it exists in law wherever a wrongful act is intentionally done without just cause or excuse.

"3. The court instructs the jury that the defendant is not protected in this action from liability for the words used by him, against plaintiff by reason of having uttered them in the chamber of the lower house of the common council of Kansas City.

“4. The jury are instructed that, in making their verdict, they may take into consideration all the facts and circumstances as detailed by the witnesses, and if the jury find for plaintiff in estimating the damages, which they may think plaintiff has sustained, the jury may take into consideration and allow the plaintiff, for the mortification to his feelings, suffered from the act of defendant complained of, and may add thereto as punitive damages such amount as will adequately punish the defendant for such act, and serve as a warning to prevent others from being guilty of a like act."

The court gave one instruction for the defendant as follows:

“ 11. The jury are instructed that if they believe from the evidence that the remarks of defendant at the council meeting on the 4th of November, 1889, in reference to plaintiff, taken as a whole in their import, referred to him as inspector of curbing and not as superintendent of streets, then your verdict should be for the defendant."

365

The judgment was for plaintiff for five thousand dollars, and defendant appealed.

1. Defendant admitted speaking the words imputed to him, but undertook to justify what he said on the ground that he was at the time a member of the city council of Kansas City, which was in regular session, and had under discussion the office of superintendent of streets and the official action and methods of plaintiff, who was then such superintendent; that in the discharge of his official duty he had the right and privilege to discuss and characterize the official misconduct of plaintiff.

There can be no doubt, on proper occasion, members of the city council would be protected from “ responsibility for whatever is said by them wbich is pertinent to any inquiry or investigation pending or proposed before them,” but no further; they would become “accountable when they wander from the subject in hand to assail others”: Cooley on Torts, 2d ed., *214; Neeb v. Hope, 111 Pa. St. 152.

Members of the city council, in particular, and all citizens in general, are interested in the proper, honest, and efficient administration of the public service, and have the right, in the public interest, to criticise public officers, and to prefer charges for malfeasance or neglect of duty, if done in good faith, upon probable and reasonable grounds, but the law does not permit any person to slander another, on any occasion, or under any circumstances, when they are not protected by absolute privilege.

It is charged in the petition, and conclusively shown by the evidence, that, when the objectionable words were spoken, there was no inquiry pending or proposed before that house of the council which would make the occasion one of privilege, beyond that which is accorded to every citizen. Defendant was not privileged to falsely characterize the plaintiff as a “thief,” though the term was intended to apply to his official conduct.

Whether the occasion is such as to make the communica. tion one of privilege is always a question of law 366 for the court where there is no dispute as to the circumstances under which it was made, and the court did not err in hold. ing that the language applied to defendant was not privileged: Newell on Defamation, Slander, and Libel, sec. 9, p. 391; Odgers on Libel and Slander, 183; 13 Am. & Eng. Ency. of Law, 406. The words spoken were actionable in

themselves, and, being admitted by the answer, the court properly instructed the jury that, if they were false, the defendant was liable.

2. Complaint is made of the first instruction given for plaintiff in that it is an abandonment of the meaning plaintiff, in his petition by innuendo, placed upon the words spoken. The innuendo charges that defendant intended and meant by the language used to charge plaintiff with oppression and partiality in the discharge of his official duties as superintendent of streets, and the claim is that he should be held to the interpretation he himself placed upon them, while the instruction authorized a recovery on proof of the falsity of the words adnittedly spoken.

The innuendo is intended to define the defamatory meaning which the plaintiff places upon the words used. In case the defamatory meaning is apparent from the language charged there is no necessity for an innuendo at all. The purpose of the innuendo, and its effect upon the party pleading it, is thus expressed by Townshend in his work on Slander and Libel, section 338: “Where language is ambiguous and is as susceptible of a harmless as of an injurious meaning, it is the function of an innuendo to point out the meaning which the plaintiff claims to be the true meaning, and the meaning upon which he relies to sustain his action. This applies, whether the ambiguity be patent or latent, and whether or not there are any facts alleged as inducemento By this means the defendani is informed of the 367 precise charge he has to meet, and to deny or justify; but the plaintiff is subjected to the risk that if he claims for the language a meaning which is not the true one, or one which he is une able to make out satisfactorily, he may be defeated on the ground of variance or failure of proof. For, when the plaintiff, by his innuendo, puts a meaning on the language publishel, he is bound by it, although that course may destroy his right to maintain the action”: To the same effect see Starkie un Slanıler and Libel, Folkard's ed., sec. 446; Newell on Defamation, Slander, and Libel, sec. 39, p. 629; Ougers on Libel and Slander, 100.

It will be seen that the office of the innuendo is to get a meaning upon words or language wbich are of doubtful or ambiguous import, and taken alone are not actionable, and it follows that in case the defamatory meaning is apparent from the words used an innuendo is unne Cursary. Its use is

368 cited.

only necessary in order to bring out the latent injurious meaning of the words employed. When used for this legitimate and necessary purpose the plaintiff will be bound to abide by his own construction of the words used. The innu. endo thus becomes a part of the cause of action stated.

The rule, is given by all the text-writers, is different when the words charged are actionable in themselves. In such case the defendant can put in issue the truth of the words spoken, either with or without the alleged meaning. “It will then be for the jury to say from the proofs whether the plaintiff's innuendo is sustained. If not, the plaintiff may fall back upon the words themselves, and urge that, taken in their natural and obvious signification, they are actionable in themselves without the alleged meaning, and that, therefore, his unproved innuendo may be rejected as surplusage": Newell on Defamation, Slander, and Libel, sec. 38, p. 628; Odgers on Libel and Slander, 101, and cases An innuendo will not vitiate the proceedings, though new matter be introduced; and where the matter is superfluous, and the cause of action is complete without it, the innuendo may be rejected ”: Starkie on Slander and Libel, Folkard's ed., sec. 447; Gage v. Shelton, 3 Rich. 242. “If a complaint is sufficient without the inmuendo, the innuendo may be rejected as surplusage; the innuendo may always be rejected when it merely introduces matter not necessary to support the action”: Townshend on Slander and Libel, sec. 344, and cases cited; 13 åm. & Eng. Ency. of Law, 468.

The principle announced by these authors is supported by numerous cases cited by them, a case from this court being one.

In that case defendant charged plaintiff with being a whore, meaning thereby that plaintiff "had been guilty of the crime of adultery." The proof disclosed that plaintiff was an unmarried woman. Upon an appeal from a judg. ment in favor of plaintiff, defendant insisted that, as plain. tiff, by innuendo, had declared that defendant's wife intended by speaking the words to impute adultery, plaintiff was bound to prove they were uttered in the sense thus ascribed to them, but the court beld that the innuendo could be rejected, and bustained the judgment: Hudson v. Garner, 22 Mo. 424.

There can be no doubt that the words “downright thief," applied to plaintiff, imputed to him the crime of larceny, and were in themselves actionable. The innuendo charging that defendant meant thereby to charge plaintiff with oflicial

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