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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 365 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 wbich would make the occasion one of prive ilege, 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 mean. ing, it is the function of an innuendo to point out the mean. ing 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 inducement. 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 clains 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 publisheid, he is bound by it, although that course may destroy his right to maintain the action”: To the same effect see Starkie on 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 set a meaning upon words or language which 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 animuendo is unnecessary. Its use is

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 innuendo thus becomes a part of the cause of action stated.

The rule, as 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 368 cited. “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 innuendo, 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 am. & 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 plaintiff, by innuendo, had declared that defendant's wife intended by speaking the words to inpute adultery, plaintiff was bound to prove they were uttered in the sense thus ascribed to them, but the court held that the innuendo could be rejected, and sustained 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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corruption, oppression, and partiality, also imputed a crime, and was actionable: Rev. Stats. 1889, secs. 3732, 3733. De. fendant by answer admitted that he applied to defendant the term “ downright thief” as charged. Upon this state of the pleading we do not think there was error in instructing the 369 jury that plaintiff could recover if defendant spoke the words as charged, and they were false, unless plaintiff was justified in so speaking.

3. The first instruction required the jury, in order to find for plaintiff, to also find that the defamatory words were spoken with malice. The second instruction told the jury that malice existed in law "whenever a wrongful act is intentionally done without just cause or excuse.” The fifth instruction authorized the jury in making their verdict to 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.” Exemplary damages were thus authorized without proof of express malice. Defendant insists that punitive damages in suits for slander are only recoverable when the wrongdoer was actuated by actual or express malice as distinguished from malice implied by law.

No one is excused for the libel or slander of another for the reason that the wrongdoer was without malice. The actual injury suffered does not depend upon the motive of the wrongdver. The object, then, in giving evidence in proof of malice is to increase the damages beyond what was actually sustained: Oilgers on Libel and Slander, 269; Townshend on Slander and Libel, sec. 91; 3 Sutherland on Damages, sec. 1205, and cases cited.

In slander the words are always intentionally spoken, whatever meaning may be imputed to them. Hence it is Baid: “When slanderous words are spoken, or a libelous article is published falsely, the law will affix malice to them. There is no necessity of proving express malice": Buckley v. Knapp, 48 Mo. 161. So it is uniformly held that when the works spoken are actionable in themselves, and are proved to be false, the law will 370 imply malice: Hall v. Adkins, 59 Mo. 144; Price v. Whitely, 50 Mo. 439; Noeninger v. Vogt, 88 Mo. 589; Mitchell v. Bradstreet Co., 116 Mo. 226; 38 Am. St. Rep. 592. So it will appear that malice, such as the law implies, is the very gist of the action for slander. It is held, in some of the cases last cited, that when the words spoken

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are actionable in themselves, the person injured will be entitled to recover without alleging or proving special damages. It is also held that a repetition of the defamatory words may be given in evidence for the purpose of proving express malice (Noeninger v. Vogt, 88 Mo. 593), and thereby increas. ing the damage, though malice was implied from the words spoken.

It is said that “malice, in legal understanding, implies no more than willfulness": Buckley v. Knapp, 48 Mo. 161. Again, malice in law is defined as "the malice which is inferred from doing a wrongful act without lawful justification or excuse": Starkie on Slander and Libel, sec. 336. Towns- . hend says: “The distinction between malice in law and malice in fact has been supposed to consist in this, that the one is inferred and the other is proved. The supposed distinction is unreal and unsound; for, first, there is no distinction between what is inferred and what is proved-what is, or is supposed to be, rightly inferred is proved": Townshend on Slander and Libel, sec. 87, p. 68.

We may say, then, that malice, whether express or implied, means the same, the only difference being in the establishment of it. When malice is implied from the words spoken or published the burden is on the defendant to prove lawful justification or excuse or the absence of a malicious intent. On the other hand, if the words themselves do not imply malice, the burden rests upon the plaintiff to establish it. When malice exists punitive damages may be given, and it cannot be seen why a distinction should be made, 371 when the evil intent existed, whether implied or proved. It is true a distinction is made by some courts, and it is held that, unless express malice is proved, exemplary damages should not be allowed. This line of decision was followed by the St. Louis court of appeals in Nelson v. Wallace, 48 Mo. App. 193, and Fulkerson v. Murdock, 53 Mo. App. 156.

It is argued that punitive damages are only allowed in trespass, and other actions for torts when the offense is com. mitted in a wanton, rude, and aggravated manner, indicating oppression or a desire to injure, and that no reason can be been for the application of a different rule in cases for slander

We think the distinction does not in fact exist. Malice is implied in the willful doing of any wrongful act, without justification or excuse, whereby injury is done to another, whether it be to his character, his person, or his


or libel.

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