author: FOX, J.

text:
    R. A. HOLMES v. ROYAL FRATERNAL UNION, Appellant.
    Division Two,
    July 13, 1909.
    1. LIBEL: Privileged Communication. If the words complained of were written by defendant in the discharge of some duty, public or private, legal or moral, or with the view of protecting some interest pertaining to defendant’s business, and were relevant and proper in that connection, and were made in good faith upon- a proper occasion, with a proper motive based upon a probable cause, and in the honest belief that they were true, they are a privileged communication.
    2. -: -: Fraternal Society to Agent. Plaintiff was the agent of defendant fraternal-beneficiary association, and demanded larger compensation than defendant considered him entitled to under his contract, and held back moneys collected by him which defendant and his contract required him to remit, and had in some of his letters threatened suit against defendant if it did not accede to his terms, and avowed that if it did not accede he would leave defendant’s employ and that when he left he would take two-thirds of defendant’s members with him. Thereupon, after an attempt to amicably adjust the matters with plaintiff, without success, defendant wrote its members in the community where he was agent that plaintiff had been discharged, that he had collected the dues due from members for two months and reported the amounts collected and the names of members who had paid, but had remitted none of the moneys collected by him, and notifying the members that they would not lose standing in the association, and asking them to remain. The evidence strongly tends to prove those assertions to be true. Held, that the letter was a qualified privileged communication, and in the absence of a showing by plaintiff of some sort of express malice the court should have sustained defendant’s demurrer to the evidence.
    3. -: -: Malice. Where the letter was a qualified privileged communication, it is essential that plaintiff show that the exigencies of the situation did not call for the use of the language employed, and that it amounts to an abuse of the privilege,, ánd was therefore actuated by express or actual malice. A privileged communication is an exception to the rule that every defamatory publication implies malice.

      4. -: -: -: Burden. It is the duty of the court to determine whether or not the communication is a privileged one, and if it is privileged the burden' shifts to plaintiff to show malice, and if there is no substantial evidence of express or actual malice then the court should sustain a demurrer to' plaintiff’s case.
    5. -: -: Untrue Statement. A statement made by a fraternal association to its members that plaintiff, its agent, had not remitted the moneys he had collected for two months, when in fact he had retained all those collected for one month and a part of those collected the previous month, was substantially true.
    Appeal from Buchanan Circuit Court. — lion. G. A. Mosman, Judge.
    Reversed.

      Edwin 8. Puller and Rusk <& Stringfellow for appellant.
    (1) The communication was privileged. Cooley on Torts, p. 211; Einley v. Steele, 159 Mo. 299 ; Over-ton v. White, 117 Mo. App. 604; Byam v. Collins, 111 N. Y. 143; 25 Cyc. 385; 1 Jaggard on Torts, 539; 18 Am. and Eng. Eney. Law, 1029, 1037; Kirkpatrick v. Eagle Lodge, 26 Kan. 384; Streety v. Wood, 15 Barb. (N. Y.) 105; Ginsberg v. Union Surety & Guaranty Co., 74 N. Y. Supp. 561, 68 App. Div. 141; Nichols v. Eaton, 81 N. W. 792; Montgomery v. Knox, 23 Pla. 595; Lally v. Emery, 59 Hun 237, 12 N. Y. Supp. 785; Galligan v. Kelly, 31 N. Y. Supp. 561; McKnight v. Hasbrouck, 17 R. I. 70; Pearce v. Browner, 72 Ga. 243; Branaman v. Hinkle, 137 Ind. 496; Wieman v. Mabee, 45 Mich. 484; Harwood v. Keech, 4 Hun 389; Róusch v. Anderson, 75 111. App. 526; Henry v. Moberly, 51 N. E. 497; Gattis v. Kilgo, 140 N. C. 106; Barrows v. Bell, 7 Gray 301; Sheftall v. Railroad, 123 Ga. 589; Noonan v. Orton, 32 Wis. 106; Allen v. Railroad, 100 N. C. 397; Chambers v. Leiser (Wash.), 86 Pac. 627; McCarty v. Lambley, 46 N. Y. Supp. 792. (2) There was no evidence of express malice. A case of qualified privilege should not he submitted to the jury without evidence of express malice. Finley v. Steele, 159 Mo. 306; Allen v. Railroad, 100 N. C. 397; Redgate v. Rousch, 61 Kan. 480; Kirkpatrick v. Eagle Lodge, 26 Kan. 384; Bee Pub. Co. v. World Pub. Co., 59 Neb. 713; White v. Nichols, 3 How. (U. S.) 266; Erber v. Dun, 12 Fed. 526; Locke v. Bradstreet Co., 22 Fed. 771; 18 Am. and Eng. Ency. Law, 1029; 25 Cyc. 412, cases note 21; 32 Century Digest, 2070, secs. 149, 150. (3) The facts stated in the letter were true, in substance and effect. St. Louis Clo. Co. v. Dry Goods Co., 156 Mo. 403; Boogher v. Knapp, 97 Mo. 122; Edwards v. Knapp, 97 Mo. 432; Matt v. Dawson, 46 Iowa 533; Ropke v. Brooklyn Daily Eagle, 9 N. Y. 709'.

      J. W. Sullinger and Thompson é Thompson for respondent.
    This ease was properly submitted to the jury, and the instruction in the nature of a demurrer, submitted to the court by defendant, at the close of all the testimony, was properly overruled by the court, for the reason that where a person is 'charged in a publication with want of integrity and honest dealings in his business relations, the words thus published are libelous per se. Rammell v. Otis, 60 Mo. 365; Noeninger v. Vogt, 88 Mo. 589; Baldwin v. Walser, 41 Mo. App. 243; Spenlock v. Lambard Ins. Co., 59 Mo. App. 225; St. James Military Academy v. Gaiser, 125 Mo. 517. A publication which will be protected by the rule of privilege is one, made on a proper occasion, from a proper motive, based upon a probable cause, and in a proper manner. Wallace v. Jameson, 179 Pa. St. 116; Conway v. Pittsburg Times, 139 Pa. St. 334; Sullivan v. Commission Co., 152 Mo. 277. But if suck publication is not so made the privilege .will be lost. Wallace v. Jameson, 179 Pa. St. 116; Conway v. Pitts-burg Times, 139' Pa. St. 334; Neeb v. Hope, 111 Pa. St. 152; Callahan v. Ingram, 122 Mo. 365; Sullivan v. Commission Co., 152 Mo. 277; Wagner v. Scott, 164 Mo. 303. A publication which is protected by the rule of privilege is an exception to the general rule that “every defamatory publication prima facie implies malice.” Denver Public Warehouse Co. v. Holloway, 83 Pac. 131. To give to the words complained of the character of a qualified privilege, it must appear that they were written, by defendant association in the discharge of some duty, public or private, legal or moral, and with that end and purpose in view, or in the conduct of some matter involving its interest, and that they were written for the protection of that interest, and that they were relevant and proper in that connection. It must also appear that they were uttered in good faith, made on a proper occasion, from a proper motive, _ based upon a probable cause and in the honest belief that such statements were true. Quinn v. Scott, 22 Minn. 462; Swan v. Tappan, 5-Cush. 104; G-assett v. Gilbert, 6 Gray 94; Klinck v. Colby, 46 N. Y. 427; Wallace v. Jameson, 179 Pa. St. 116; Sullivan v. Commission Co., 152 Mo. 277.
   FOX, J.

This cause is here by appeal from a judgment of the Buchanan County Circuit Court, in favor of the plaintiff.

This is an action for libel and is based upon a letter written by the appellant at St. Louis, Missouri, addressed to one Clint Hull at St. Joseph, Missouri, dated December 22, 1904, containing as alleged in the petition, several false, scandalous, malicious and defamatory matters of and concerning the respondent ,in his business. It is also alleged in the petition that appellant on the same date wrote and mailed the same letter to a number of other persons at St. Joseph, Missouri, containing, as alleged, the same libelous matter. The petition charges libel in the usual form, based upon the publication of said letter by the parties therein named opening and reading same.

The answer of appellant admitted that the letter charged was written and mailed to Clint Hull, as well as other members of the Royal Fraternal Union at St. Joseph, and alleges that it was not mailed to any one else or otherwise published. It is denied that the letter was libelous and the innuendoes of the petition are denied. In defense, the truth of the letter is pleaded, and appellant further pleaded that it was a privileged communication. Appellant alleged its good faith in writing and publishing the letter.

The appellant is a fraternal beneficiary association incorporated under the laws of this State, with headquarters at St. Louis. Holmes was a member of the association, and for two years prior to the publication of the alleged libelous letter was employed by the association in soliciting members, organizing subordinate councils and taking applications for beneficiary certificates or policies.

The letter written by the association to Clint Hull, O. B. Peasley and others, at St. Joseph, Missouri, of and concerning respondent as its agent, dated December 22, 1904, is as follows:

“Dear Sir and Brother: You are hereby notified that we have canceled the authority of our former representative at St. Jo.e, Mo., Mr. R. A. Holmes, to represent this order in any manner whatever. He is not authorized to take applications or to collect or to receipt for dues. Mr. Holmes has not remitted to this office any of the collections that he has made at St. Joe for the last two months; while he has reported to us the names and amounts collected he has failed to remit the money he has collected, due the order, so you are advised not to make any more payment of dues to Mr. Holmes, as he has no authority to collect dues or receipt for payments made to him. As we had advised you to make your payments to Mr, Holmes, we have credited you and the other members at St. Joe, with all the payments they made to him and stood the loss ourselves.
“We have arranged with the firm of Hull & Chittenden, at No. 610 Edmond street, St. Joe, Mo., to take care of the collections until some other arrangements can be made. They have the collection list in their office and are authorized to receipt for monthly dues. If it is more convenient for you to remit your dues direct to the home office than to pay to them you are at liberty to do so, but in either event the payment must be made on or before the last day of the month. Please call at their office and make your payment to them at your earliest convenience. Kindly keep in mind that it will be necessary for you to go to the office of the above firm (Hull & Chittenden) to make your payments — they will not send a collector to your home. We regret exceedingly that it has become necessary to cancel Mr. Holmes’ authority and we hope you and the other members at St. Joe will appreciate the situation and retain your membership in the order. We will endeavor to secure an active agent at St. Joe as soon as possible.
“With best wishes, I remain,
“Fraternally yours,
“F. H. Pickrell, President.”

In December, 1902, respondent was employed by the association by a written contract to act as its agent, with territory in the State of Kansas. Under the provisions of this contract he was to receive as full commission for all services rendered, all the first payments collected at the time of taking applications, and in addition thereto the third, fifth, seventh, tenth and twelfth assessment received at the home office on business written by Holmes, or agents appointed by him. Respondent soon became dissatisfied with the commissions received under this contract, when the association offered him another which was rejected. Again in July, 1903, the association undertook to satisfy him by a new contract and invited him to come to St. Louis, the association agreeing to pay one-half the expenses; this was also rejected, and at the same time, respondent, in a letter to the association, threatened suit if matters were not adjusted to his satisfaction. On November 2, 1903, a new contract was entered into between respondent and the association. This new contract covered nine counties in the State of Kansas and four counties in Northwest Missouri, including St. Joseph. The powers given by the new contract to respondent were similar to those embraced in the first contract, but set out more in detail. Under this new contract respondent, for all services rendered by him, or any suNagent he might appoint, was to receive upon the health and accident business all the policy fee collected by the agents, forty per cent of the first twelve monthly dues, and twenty per cent of subsequent monthly dues, as well as some contingent commissions which are not necessary to be noticed in this statement. The dues on policies under this last contract were to he remitted monthly by respondent to the association on or before the third day of the month to which the dues applied. The association was to report and remit to respondent his commissions on the 25th of the same month. The new contract superseded the old contract. The respondent, after entering into the new contract, was still entitled under the old to commissions on dues paid by members obtained during its life, up to and including the twelfth monthly payments. The alternate payments to which respondent was entitled under the old contract, were called “skip” payments, and one of his contentions with the association was that he was to receive these “skip” payments after the end of the first year. This contention was found by the circuit court to be in the face of the contract, and it so instructed the jury. Under the first contract the association revised and sent to respondent a monthly list showing new members and old members who had defaulted. This list was to be returned by him, and was returned until he finally kept it, as he wrote the association, for the purpose of placing it in the hands of his attorney.

Respondent also claimed that in addition to the commission provided in each, the first and second contracts, he was further entitled to ten per cent for collecting. In the early part of 1904 he began to retain ten per cent in addition to the forty per cent allowed under the contract, on all collections. This act the association demurred to and wrote him that he was not entitled to the extra ten per cent, but he continued to deduct it from his collections, and also deducted at least one “skip” payment to which he was not entitled. The last remittance made by respondent of his collections to the association was in November, 1904. From that remittance he not only deducted forty per cent under the contract, but deducted thirty, per cent as well, claiming that there was ten percent due him for the months of September, October and November. The association complained of this extra deduction and undertook to point out to respondent that he was not entitled to it, he maintaining that he was. Respondent also made collections for December amounting to $64.89, none of which was remitted to the association. He took the stand, that he was entitled to the money in his hands, and that he did not propose to remit any more until the association recognized his claim. Respondent testified that the association owed bim $125 or $150, but he did not make any showing in detail as to how the association owed bim any such amount. His claim for ten per cent extra commission was also determined against him by the circuit court by an instruction to that effect.

The evidence demonstrates clearly that respondent failed to remit to the association a great portion of the collections for November made at St. Joseph, and all the collections made at the same place for the month of December. The association’s book in evidence disclosed that he was indebted to it in the sum of $127.99, and while respondent testified that the association was indebted to him in about that sum, yet his testimony was a mere assertion and is not based upon any tangible figures or facts. The association wrote him a number of letters relative to the November and December collections, all of which are couched in courteous and reasonable language, requesting him to remit the amounts he had collected. On November 11th, the association wrote him and gave notice, under the terms of the second contract, of its cancellation, to be effective ten days from date. On the 14th day of November, the association again wrote him, urging him to make settlement under the terms of his contract, making it clear that the observance of its terms, would be required, and also proposing to negotiate a new contract with him. Respondent did not write the association again until he reported his collections for December, when he reported the sum of $64.89, and retained the whole amount. He again claimed ten per cent extra commission, and intimated plainly in this last letter that he was holding the money then in his hands until his demands were acceded to by the association. The association then had a complete examination made of all the business of respondent, allowing him commissions he was entitled to under both contracts, and found that he was indebted in the sum of $127.99 to the association. The supreme president of the order then ordered Mr. Chittenden, one of the clerks in the office in St. Louis, to notify respondent of the termination of his contract and cancellation of his authority, and to notify members at St. Joseph who had been paying dues to him, not to make any further payments to Mm. Accordingly, Chittenden notified respondent of the cancellation of his contract, and on December 22, 1904, the letter, which is the basis of this action, was written and mailed to the members of the association at St. Joseph. Prior to this, in a number of letters, respondent had threatened suit against the association, and had also threatened that if the association did not accede to his demands for further commissions, he would leave the order and take two-thirds of the St. Joseph members with him.

This sufficiently indicates the nature and character of the testimony upon which this cause was submitted to the jury.

At the close of the evidence the court instructed the jury in accordance with its views, upon the facts as developed upon the trial, and the cause being submitted to them they returned their verdict, finding the issues for the plaintiff and assessing his damages at the sum of five thousand dollars. Timely motions for new trial and in arrest of judgment were filed and by the court taken up and overruled. Judgment was entered in accordance with the finding of the jury, and from this judgment defendant prosecuted its appeal, and the record is now before us for consideration.

OPINION.

The record discloses that during the progress of the trial the defendant preserved numerous exceptions to the action of the court in the admission and rejection of testimony, as well as to the refusal and giving of instructions.

The legal propositions confronting us, which are disclosed by the record, may thus be briefly stated:

First. Was the letter upon which this action is predicated, and which is fully indicated in the statement of this cause, upon the trial, a qualified privileged communication?

Second. If said letter was a qualified privileged communication, then should the circuit court have so declared as a matter of law, or should the questions of privilege and malice have been submitted to the jury?

Third. Were the statements as made in the letter substantially true, as shown by a large preponderance of the evidence?

I.

Manifestly the circuit court reached the conclusion from an inspection of the letter, which forms the basis of this suit, in conjunction with testimony offered, that it was not a privileged communication, either qualified or otherwise; hence, the court refused to submit to the jury the question of privilege, or the facts constituting a privileged communication, as well as the question of express malice.

Upon the disclosures of the record the first insistence of appellant is that the letter was a privileged communication, and that the evidence absolutely fails to show any express malice; hence it was the duty of the court to sustain the demurrer to the evidence. Upon this insistence the first question which confronts us is. as to whether or not the letter in question was a privileged communication, and if so whether or not it was the duty of the trial court, as a question of law in the first instance, to so determine.

In order to intelligently discuss this proposition it is necessary to briefly refer to the facts as developed upon the trial. The' testimony discloses that Holmes had been the agent of appellant for the purpose of soliciting business, taking applications and establishing agencies, for the space of about two years before their business relations came to an end by the writing of the letter in question. The correspondence introduced by both parties, much of which on the part of appellant was excluded, and improperly so if the said letter is to be treated as a qualified privileged communication, shows that shortly after respondent began working for appellant he became dissatisfied and fault-finding, and wrote to it claiming more commissions than were allowed by his contract. The letters of appellant show that it was at all times very patient with and courteous to the plaintiff, manifested a desire to please him and come to an amicable understanding. The second contract entered into was more liberal in its terms than the first; and other contracts were offered by appellant to respondent, which he rejected. No letter written by appellant to respondent prior to the one in question was in the least exceptional. Prior to the writing of that letter respondent had threatened to put claims in the hands of his attorney and to bring suit against the association, and had also threatened that if he left the employ of appellant he would take two-thirds of its members at St. Joseph with him. His contracts required him to collect and remit every month the dues for that month, and on or before the third day. A remittance was made by him for November, 1904, but no remittance was made for December of the same year, although he reported that for December he had collected something over sixty-four dollars. He retained that money and stated that he would, not send it to the association until a settlement was reached. Even after this information came to appellant from respondent it endeavored to adjust matters with him and offered him a new contract. Then the president of appellant put on foot a careful investigation and had the books of the association examined, in order to determine the standing of the account between it and the respondent. The testimony tends strongly to show that respondent was then indebted to appellant in the sum of $127.99. The letter in question was then written by the clerk in the St. Louis office of appellant at the instigation of its president, to members of the order at St. Joseph. This letter, it will be observed, informed the member that the authority of Mr. R. A. Holmes, as their agent at St. Joseph, had been canceled, and that he was not authorized to take applications or receipt for money. Then the member was informed that he had not remitted for collections made at St. Joseph for two months, and that while he had reported to the association the names and amounts collected, he had not remitted. The member was advised not to make any more payments to Holmes, and his authority had ceased. The member was further advised that all payments previously made to respondent were properly credited to the members. They were then advised to whom to make future payments. Regrets were expressed that it had become necessary to cancel Holmes’s authority, and the association hoped that the members at St. Joseph would continue their membership in the order. This letter seems to have had in view the fact that respondent had failed to remit certain dues. This failure may not have been for two months, but he had failed to remit at least a portion of the dues collected by him. It also appears to have been written with a view to preventing, if possible, the threats previously made by respondent, to take away from the order two-thirds of the St. Joseph members.

The rules of law applicable to qualified privileged communications is well settled in this State. In Finley v. Steele, 159 Mo. 299, the rule as applicable to this subject was very clearly stated. It was there said: “A qualified privilege ‘extends to all communications made bona-fide upon any subject-matter in which the party communicating has an interest, or in reference to which he owes a duty to a person having a corresponding interest or duty; and to cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation.’ ” And again: “ ‘The proper meaning of a privileged communication is said to be this: that the occasion on which it was made, rebuts the inference arising, prima-facie, from a statement prejudicial to the character of the plaintiff; and puts it upon him to prove that there was malice in fact, and that the defendant was actuated by motives of personal spite or ill-will, independent of the circumstances in which the communication was made.’ But when the paper published is a privileged communication, an additional burden of proof is put upon the plaintiff, and he must show the existence of express malice.”

It will be observed that the defendants in that case were members of a school board. The action against them emanated from a written charge made by the school board and-filed with the school commissioner, which contained words of a defamatory character, and would have been otherwise libelous had it not been, as held by the court, a privileged communication, and there was no proof offered by the plaintiff of express malice.

In Wagner v. Scott, 164 Mo. 289, the plaintiff, Wagner, was chief engineer of a number of electric light companies. The president of one company wrote the president of another company, making charges against plaintiff’s personal and professional standing. It was ruled in that case that the letter was defamatory and libelous, but that it was a privileged communication. It was further held that the evidence justified submitting to the jury the question of express malice, which, if it existed, would overcome the qualified privilege, and that therefore the court erred in nonsuiting the plaintiff. In the discussion of the law applicable to that case the court announced the legal principle that whether in a particular case a publication is deemed to be privileged, that is, whether the situation of the party making it and the circumstances attending it, were such as to rebut the legal inference of malice, is a question of law to be determined by the court in the first instance, and applying the principle of law stated to the plaintiff’s evidence as it appeared in the record in the cause then under consideration, it was held to have made a prima-facie case of express malice. The court said: “The publication contained very grave charges against the plaintiff affecting his personal, professional and official standing and character, made in a quarter calculated to do him serious injury. His evidence tended to prove that the charges were false, that the defendant either knew or had the means of knowing that they were untrue. That the exigencies of the situation did not call for such charge for the protection of the interests the defendant had in charge, or warrant the language in which they were made, and that while the occasion was privileged, the publication was an abuse of the privilege. Hence the case ought to have gone to the jury.”

A careful analysis of the discussion by the court in the case last cited of the legal principles applicable to privileged communications, makes it plainly manifest'that the nature and character of the charges contained in the publication are in a large measure controlling, when the point is reached for the determination as to whether the situation of the parties making the charge and the circumstances attending it, were such as to rebut the legal inference of malice. In other words, in the determination of that question, as was ruled in the case of Wagner v. Scott, supra, the exigencies of the situation are to be taken into consideration as to whether or not they warranted the charges made in the publication for the protection of the interests the defendant may have had under his control, or whether or not the language used in such publication under the circumstances was warranted, and was the language employed in such publication of such a nature and character as to indicate an abuse of such privilege.

It has been held in other jurisdictions that a statement by a stockholder to an officer of a corporation that a certain employee was a perjurer and a blackmailer, and had assisted in fraudulently obtaining money from the corporation, if made without malice, is privileged. See notes to case of Chambers v. Leiser, Am. and Eng. Annotated Cases, vol. 10, p. 272.

Communications which would otherwise be actionable, would be privileged, if made in the course of an investigation of the conduct or -character of one if its officers or members of a quasi-judicial body, such as a voluntary society, since a member by accepting a membership voluntarily submits himself to the jurisdiction of the association so long as it acts-within the scope of its authority. [10 Am. and Eng. Ency. of Law (2 Ed.), p. 1035.] This rule has been applied to a lodge of Odd Fellows as well as a medical society.

Learned counsel for respondent very fairly, as well as clearly and correctly, stated in their brief the requirements of the law applicable to this subject. They say: “To give the words complained of the character of a qualified privilege it must appear that they were written by the defendant association in the discharge of some duty, public or private, legal or moral, and with the end or purpose in view, or in the conduct of some matter involving its interest, and that they were written for the protection of that interest, and that they were relevant and proper in that connection. It must also appear that they were uttered in good faith, and mad.e on a proper occasion, from a proper motive, based upon a probable cause and in the honest belief that such statements were true.” In our opinion this is a fair and full statement of the requirements of the law, and if the evidence disclosed by the record meets these requirements, it logically follows that the letter in question was a privileged communication. This confronts us with the inquiry as to whether the letter written by the association was in the discharge of some duty, and did. the subject and matter upon which the letter written was predicated affect the interests of the fraternal association? Manifestly the association had the right and it was its duty to communicate with its members. It clearly had the right and it was also its duty to investigate the conduct of its agents, and demand of them proper reports. There was no impropriety and it unquestionably had the right to notify its members at St. Joseph that the authority of respondent as agent had been canceled there and not to pay him any more money. It must not be overlooked that in some of the correspondence by the respondent he had threatened suit against the association and had also proclaimed that when he left the association he would take two-thirds of its members with him. These disclosures of the record clearly indicated that the interests of the association were involved, and the officials who were administering the affairs of such association doubtless became aroused concerning the threatened injury to their body, and in order to protect the interests of such association, in our opinion, appellant had the undoubted right to endeavor by all proper and appropriate methods to retain its membership, and to this end had the unquestioned right to communicate with the members of the association at St. Joseph guarding them against any efforts that might be made on the part of the respondent to disorganize the membership of the association at that place. The evidence as disclosed by the record strongly tends to prove that the respondent had not remitted his collections for December, and was still owing a part of the collections made by him in November. The record before us further discloses that prior to the writing of the letter upon which this action is predicated, the president of the fraternal association, in a businesslike way, had a thorough examination of the books made, which disclosed that respondent was indebted to the association in the sum of $127.99; hence it follows, if we are looking for a reason why this letter was written, such reason is furnished by pointing to the fact that it was written both for the purpose of preventing members paying respondent more money, and to keep such members from leaving the fraternal association. Upon this state of the record it will certainly not be seriously contended that the association did not have reasonable cause to act, and that it did not act in good faith. The disclosures of the entire record clearly indicate that the association was acting in good faith from proper and legitimate motives, based upon the showing from an examination of the books of the indebtedness of respondent to the association, as well as upon the admissions of the respondent that he had in his hands certain moneys collected for the association, but which he would retain until there was a settlement with him. Under these circumstances the president and others in the chief office of the association had the data before them which was calculated to inspire the honest belief that the statements in the letter complained of were true, at least in substance.

After a most careful consideration of all the evidence and the showing made of the extremely courteous and kind treatment awarded respondent by the association throughout all their business relations, we see no escape from the conclusion that the letter .complained of and upon which this action is based, was a qualified privileged communication; and in the absence of a showing of at least some sort of express malice, the trial court should have sustained appellant ’s demurrer to the evidence.

II.

Having reached the conclusion, as herein indicated, that the letter which is the basis of this action was a qualified privileged communication, and should have been so treated by the trial court, then under the well settled rules of law as applicable to the proposition now under discussion, before the plaintiff was entitled to recover upon such privileged communication it was absolutely essential that it appear in the letter itself that the exigencies of the situation did not call for the use of the language used for the protection of the interests the defendant had in charge, or in other words, while the communication was privileged, the nature and character of the language used should show an abuse of such privilege, or the plaintiff must assume the burden cast upon him and prove to the satisfaction of the jury that such communication was actuated by express or actual malice. “A privileged communication is an exception to the rule that every defamatory publication implies malice. A qualified privilege is extended to a communication made in good faith upon any subject-matter in which the party communicating has an- interest, or in reference to which he has a duty either legal, moral or social, if made to a person having a corresponding interest or duty and the burden of proving the existence of malice is cast upon the person claiming to have been defamed.” [Newell on Slander and Libel (2 Ed.) p. 391, sec. 6; Finley v. Steele, 159 Mo. 299; Sullivan v. Com. Co., 152 Mo. 268.]

In Finley v. Steele, supra, this court referred to and quoted approvingly from Byam v. Collins, 111 N. Y. 143, and Klinck v. Colby, 46 N. Y. 427. The rules of law as applicable to the subject now under discussion were very clearly and tersely stated in those cases. It was said: “A libelous communication is. regarded as privileged, if made bona-fide, upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, if made to a person having a corresponding interest or duty, although it contains criminating matter which, without this privilege, would be slanderous and actionable ; and this, though the duty be not a legal one, but only a moral or social duty of imperfect obligation. In speaking of the proper meaning of privileged communieations in Klinck v. Colby, 46 N. Y. 427, it is said: ‘ The proper meaning of a privileged communication, is said to be this: that the occasion on which it is made, rebuts the inference arising, prima-faeie, from a statement prejudicial to the character of the plaintiff; and it puts it upon him to prove that there was malice in fact, and that the defendant was actuated by motives of personal spite or ill will, independent of the circumstances in which the communication was made.’ But when the paper published is a privileged communication, an additional burden of proof is put upon the plaintiff, and. he must show the existence of express malice.”

In Massachusetts it was held that “the question whether in a particular case a publication is to be deemed privileged, that is, whether the situation of the party making it and the circumstances attending it were such as to rebut the legal inference of malice, is a question of law to be determined by the court in the first instance.” [10 Am. and Eng. Anno. Cases, p. 1153.]

In Wagner v. Scott, 164 Mo. 289, this court, speaking through Judge Brace, quotes the rule as announced by the Massachusetts court, and following such quotation says: “The sole duty of the court, therefore, in such cases, is to determine whether the occasion, in the absence of actual malice, would justify the publication. If so, then it is incumbent upon the plaintiff to prove the_ existence of malice in order to sustain his action; and this must be shown to the satisfaction of the jury.”

Our attention is directed to the case of Sullivan v. Com. Co., 152 Mo. 268, where it was held by this court that the circuit court erred in holding that the communication complained of was privileged, and that the occasion did not justify the terms employed. But it must not be overlooked that the terms employed in the communication forming the basis of the action in the Sullivan case were entirely unlike the language used in the case at bar. It will also be observed that the court in passing upon it determined nothing more than that there was evidence justifying the submission of the question of malice to the jury. In fact it was there announced that “it was a question of law for the court whether the letter was a privileged communication, but malice was a question of fact for the jury, if there was any evidence whatever of malice.”

After a thorough examination and consideration of the authorities applicable to the propositions involved in this case, we find that the weight of authority holds that where a libelous communication or writing is alleged to be privileged, it is incumbent upon the court to determine this question in the first instance. The burden of showing the privileged character of such communication rests with the defendant. If in the judgment of the court the communication is a privileged one, then the burden of proof shifts to the plaintiff, and in order to entitle him to recover, it is essential that he show actual or express malice, and if upon such showing there is no substantial evidence of the existence of actual or express malthen it is the duty of the court to sustain the demurrer to the evidence.

We have indicated the controlling legal principles applicable to cases of this character, and the next question which confronts us is as to whether or not the evidence as disclosed by the record substantially tended to show the existence of actual or express malice.

We have read in detail all the evidence developed upon the trial of this cause, and in our opinion, consideling in detail all of the testimony disclosed by the record, it absolutely fails in any sort of a substantial way to show malice upon the part of the fraternal association in the writing of the communication upon which this action is based. On the other hand, the record when examined in its entirety clearly negatives the existence of any malice whatever in the writing of that communication.

The language in the letter in the case at bar must not be confounded with the language used in a number of other cases to which reference has been made. In this letter there was an entire absence of any abusive language or any grave charges made against the plaintiff, and we are unable to see, under the conditions surrounding the fraternal association, how a communication could have used less-pointed terms in order to effect the purpose of protecting the interests of the association. The officers administering the affairs of the defendant association had always treated plaintiff courteously, and in fact made efforts to amicably settle the -dispute that had arisen about the collection of dues under the contracts with the plaintiff. Prior to the writing of the letter the president and other officers in the chief office made a thorough investigation of the account of the respondent, and the books disclosed that he was indebted to the association in the sum of $127.99: The plaintiff refused to remit certain moneys collected for December, 1904, and part of the money collected for November, 1904; this is practically conceded. Again, it must not be overlooked that the record discloses that the plaintiff had threatened to bring suit against the association and take two-thirds of the St. Joseph membership from it when he left. The record also discloses that this fraternal association proceeded in an orderly and business-like way, in perfect accord with the contract between it and the plaintiff, to cancel the authority of respondent’s agency. The letter complained of was sent exclusively to the members of the order at St. Joseph, and informed them of the cancellation of plaintiff’s agency, with the. additional information that he had failed to remit for the last two months, which the testimony strongly indicates was substantially true. There was, in the many letters written by the association to respondent, an entire absence of anything to indicate any spite, ill-will or malice toward him by the association or by any of the officers of the association.

The trial court seems to have treated the letter upon which this action is predicated as libelous per se, and in accordance with such views so instructed the jury. This, in our opinion, was a misconception of the nature and character of such letter.

Under all the facts and circumstances disclosed by the record we are of the opinion that the causes which induced the association to write the letter complained of, were reasonably sufficient to inspire the honest belief on the part of the officers administering the affairs of such association that it was essential to write the communication, embracing therein the statements made for the purpose of protecting the interests of the association. Considering the entire record, in our opinion, this letter was written without malice and in good faith, based upon a reasonable cause, and the trial court should, at the close of the case, have sustained the demurrer to the evidence which was interposed by the defendant.

III.

The conclusions reached upon the first and second propositions, as herein indicated, render it unnecessary to discuss at any length the third proposition, predicated upon the allegations in the answer that the statements embraced in the communication were true.

As heretofore stated, the evidence in this case is almost conclusive of the fact that respondent was indebted to the appellant; in fact it is practically conceded that he did not remit to the association the collections made by him for the month of December, 1904, amounting to sixty-four dollars and some cents. The principal discrepancy between the statements of the letter and the proof is, the letter alleges that the plaintiff had not remitted any of his collections for the last two months, and it is earnestly contended that this statement had reference to September and October, or October and November. However, it is obvious that the letter had reference to November and December. One other discrepancy is that the letter states that the collections had not been remitted for two months, when the testimony shows that this was not literally true; that a part of the collections for November had been remitted, and it was only the collections for the month of December that the plaintiff had wholly neglected to remit. But aside from all this, when all of the evidence is considered it does appear that when the letter in question was written respondent had not remitted any of his collections for the month of December, and had failed to remit part of his collections for the month of November, and was indebted to the appellant association for collections made, and not permitted to appellant for these two months. The plaintiff having failed to remit moneys which belonged to the appellant, it was clearly proper and appropriate, considering the relationship of the association to its members, to inform them of the cancellation of the agency of the plaintiff, and also inform them that the agent having had authority to collect dues, the respective members of the association would receive proper credit.

Plaintiff largely based his right to retain these collections upon claims which he made for further “ship” payments, as they were termed, and for an additional ten per cent commission on collections. Both of these claims were rejected by the circuit court, and we think properly so, for the reason that they were directly in conflict with the provisions of both contracts entered into between the plaintiff and the association.

We see no necessity for discussing this proposition further. It is sufficient to say that the evidence, when considered in its entirety, show that at least in substance what was stated in the letter was true. That the defendant did not intend, by this communication, to charge the plaintiff with the commission of any crime, and that it was written by the defendant association without malice, we have no doubt. The plaintiff was a member of the association, and doubtless the respective members of the fraternal order to whom this letter was addressed were fully aware as to the dispute between the plaintiff and defendant concerning the collection of dues, and in our opinion any injury to the standing, reputation or character of the plaintiff, under the facts of this case is more imaginary than real.

We have given expression to our views upon the legal propositions disclosed by the record, which results in the conclusion that the judgment of the trial court should be reversed.

All concur.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    GLOVER C. BRANCH v. PUBLISHERS: GEORGE KNAPP & COMPANY, Appellant.
    Division Two,
    July 13, 1909.
    1. LIBEL: Matters of Law: Evidence. The constitutional provision respecting libel suits does not divest the judge of his duty to determine matters of law arising in the case. If proffered evidence is incompetent, it is the duty of the court to exclude it.
    2. -: Evidence: Witnesses’ Understanding of Meaning. If the words of an article alleged to be libelous are not ambiguous, . if their meaning is plain, and according to their natural and ordinary signification in the circumstances attending their publication they do not charge libel, then witnesses should not be permitted to testify what they understood the publication to mean.

      3. -: -: -: Contradicting Court’s Instructions by Evidence. It would be an anomalous legal situation' to hold that the court’s instruction to the effect that the publication did not charge that plaintiff had been bribed, was correct, and to also hold that witnesses were properly permitted to testify that they understood the publication to charge bribery.
    4. -: Circumstances. In determining whether the publication was libelous, it is fair and proper to take into consideration the circumstances surrounding the plaintiff and the defendant at the time of the publication.
    5. -: -: Changing Attitude Towards Candidate: Bri- . bery. Plaintiff, a Representative elect, had carefully concealed from the public whom he would vote for for TJ. S. Senator. He visited the city and the hotel where one of the candidates was lavishly entertaining members of the .General Assembly, and mingled freely with said candidate’s friends for two days, and defendant’s reporter, knowing his .unannounced attitude towards the various candidates, was informed by others that plaintiff had said he could not reconcile his conscience to support the said candidate. Plaintiff returned home and wrote a public letter announcing his support of that candidate. Thereupon that reporter wrote, and defendant published it in its newspaper, an article to the effect that plaintiff had visited the candidate’s headquarters, that he was entertained at the candidate’s expense at the hotel and theatre, that it was “easy living,” that the candidate “then talked,” and the plaintiff “bit,” and “to make a long story short” plaintiff “reconciled his conscience to the extent of signing a letter pledging his support” to the candidate. Held, that the article does not on its face, or by any fair interpretation, charge that plaintiff, for a money consideration or any other corrupt purpose, had concluded to vote for the candidate, but simply states that the candidate’s hospitality and lavish attention had induced him to announce his support, and was not libelous and the verdict for plaintiff is reversed.
    5. -: Criticism of Public Officer. It is not libelous- for a newspaper to point out a seeming inconsistency in the public conduct of a public officer, nor has a public officer any right to complain of just and fair criticism.
    Appeal from Lafayette Circuit Court. — Mon. Samuel Davis, Judge.
    Reversed.

      Lehmann & Lehmann and Wm. H. Chiles for appellant.
    (1) The publication was not ambiguous or of doubtful import and evidence of witnesses as to its meaning was therefore improperly received. Newell on Slander and Libel, 290. (2)’ The court held the article to be plain and unambiguous and so was bound to declare its meaning as matter of law and erred in submitting it to the jury as a question of fact. Pleller v. Pulitzer Pub. Co., 153 Mo. 205; Ukman v. Daily Record Co., 189 Mo. 378; Vedder v. Fellows, 20 N. Y. 768; Massey v. Tingle, 29 Mo. 437; Harrison v. Hance, 37 Mo. 185. (3) Plaintiff’s own conduct gave warrant for the comments complained of and the court should have directed a verdict for defendant. (4) The verdict is excessive and oppressive in amount. Chitty v. Railroad, 166 Mo. 435; Newcomb v. Railroad, 182 Mo. 687; Markey v. Railroad, 185 Mo. 348; Phippin v. Railroad, 196 Mo. 321; Stolze v. Railroad, 188 Mo. 581; Reynolds v. Railroad, 189 Mo. 408; Devoy v. Railroad, 192 Mo. 197.

      Reed, Tates, Mastin & Harvey and Horace F. Blackwell for respondent.
    (1) The language of the publication was ambiguous and susceptible of a double meaning, and evidence of witnesses as to what they understood the article to mean was properly received. Julian v. Kansas City Star Co., 209 Mo. 35; Newell on Slander and Libel, p. 311; Starkie on Slander and Libel (5 Ed.), p. 466; Odgers on Libel and Slander (4 Ed.), pp. 538, 634; Townsend on Slander, secs. 140, 384; 2 Green-leaf on Evidence, sec. 417; Nelson v. Borchenius, 52 111. 236; Smart v. Blanchard, 42 N. H. 146; Goldsborough v. Oren & Johnson, 103 Md. 671; Caruth v. Richeson, 96 Mo. 190; McGinnis v. Knapp, 109 Mo. 141; St. James Military Academy v. Gaiser, 125 Mo. 526; ITkman v. Daily Record. Co., 189 Mo. 394; Wagner v. Printing Co., 45 Mo. App. 13; Knapp v. Puller, 55 Yt. 311; Lewis v. Humphreys, 64 Mo. App. 470; Buford v. Young, 115 Ind. 175; Burton v. Holmes, 16 Iowa 264;.State v. Fitzgerald, 20 Mo. App. 382; Israel v. Israel, 109 Mo. App. 382. (2) The court did not hold the article to he plain and susceptible of only one construction, and committed no error in submitting the meaning to the jury as a question of fact. Authorities cited under point I. (3) Plaintiff’s conduct gave no warrant for the article sued on, and the court committed no error in not directing a verdict for the defendant. Julian v. Kansas City Star Co., 209 Mo. 35. (4) The verdict is not excessive. Longan v. Weltmer,, 1.80 Mo. 322; Minter v. Bradstreet Co., 174 Mo. 444; Meriwether v. George Knapp & Co., 120 Mo. App. 392; Harrison v. Lakenan, 189 Mo. 581; Drake v. Kansas City, 190 Mo. 370; Fallenstein v. Boothe, 13 Mo. 427; Fullerton v. Fordyce, 114 Mo. 519; Cambrón v. Railroad, 165 Mo. 543; Copeland v. Railroad, 175 Mo. 650; Scullin v. Railroad, 184 Mo. 695; Stotler v. Railroad, 200 Mo. 107; Julian v. Kansas City Star Co., 209 Mo. 35; Brown v. Globe Printing Co., 112 S. W. 462; Brown v. Publishers: George Knapp & Co., 112 S.- W. 474.
   GANTT, P. J.

This is a suit for libel.

The petition states that the plaintiff is a citizen of Missouri, and a resident of Lafayette county. The defendant is a corporation of Missouri engaged in publishing a daily newspaper known as “The St. Louis Republic, ’ ’ which has a large daily circulation throughout the State of Missouri and other States of the Union and in foreign countries. That at the regular November election held in November, 1904, plaintiff was elected Representative of Lafayette county to the General Assembly of Missouri on the Republican ticket, and that he has since duly qualified and taken and now holds said office. That one of-the matters to come before the General Assembly at its said session to be held in the month of January, 1905, was the election of a United States Senator to succeed Senator Cockrell. That prior to the publication of the article complained of, a number of men, among whom was Richard C. Kerens, were publicly aspiring to said office and were seeking to secure the support therefor of the Republican members elect to said General Assembly; that prior to the publication of the article complained of, it had been charged in various newspapers that efforts were being made, by the use of money and by other improper means, to influence the choice for United States Senator of said members of the Legislature elect. That until the publication of the article herein complained of plaintiff possessed a large number of personal friends and acquaintances in said county of Lafayette and throughout the State of Missouri and was generally esteemed 'as a good citizen and as an honest man, and that plaintiff bore and had always borne a good reputation in the matters aforesaid. That defendant, well knowing the facts aforesaid. and intending and contriving wickedly and maliciously to injure plaintiff in his good name, fame and credit, and to bring him into public scandal, infamy and disgrace with and among his neighbors and other good and worthy citizens, and with the general public of the State of Missouri, and to cause it to be suspected and believed that he, the said plaintiff, was a member elect of the Legislature of the State of Missouri and that as such he had accepted and received gifts, considerations, gratuities and rewards under an agreement that his vote, opinion, judgment and decision should be given in favor of the said Richard C. Kerens for United States Senator in the election for United States Senator to be held by the General Assembly, and that because of said gifts and rewards, he, the said plaintiff, had agreed to vote for the said Richard O. Kerens, for the office of United States Senator at said election so to be holden, and, further, to cause it to be suspected and believed that he, the said plaintiff, had disregarded his conscience and intended to vote against his conscience because of favors received and improper and illegal considerations given and granted in favor of the said Kerens, and further, to cause it to be suspected and believed that plaintiff had bartered away his honor, and that he was a man without honor and that he was a man who was not guided by his conscience or controlled by his duty as a public officer and that he had disregarded his duty as a public officer and that he had accepted favors of an improper character from said Kerens, and further, to cause it to be believed that plaintiff was dishonest and corrupt and a venal public officer and that he had committed a crime in the manner aforesaid of accepting bribes and was liable to imprisonment in the penitentiary for a term not to exceed seven years, well knowing that the said charges were untrue, did on Wednesday, December 14th, 1904 falsely, wickedly and maliciously compose, print, publish and procure to be published in its newspaper, “The St. Louis Republic,” in and through Lafayette county and all the other counties of this State and in various States and territories of the Union and through foreign countries, the following false, malicious, defamatory and libelous article, to-wit:

“Branch Eases Conscience.
“The publication of letters from Representative-elect Branch and Cook of Howell and the announcement that Brown of Grundy would vote for Kerens especially serves for many explanations.
“Branch of Lafayette has made two visits to St. Louis since the election. The first time he was presented to Senator Elkins of West Virginia, who, it is said, asked him very solicitously for his vote. Mr. Kerens himself previously, according to the story which he told to his friends, had opened proceedings by asking him if he could use any transportation or whether he wanted an office. Mr. Branch did not.
“Branch did not see the light at that visit. Last Friday he returned. The next morning he called at the Kerens headquarters. ‘Glad to see you, Mr. Branch,’ said Mr. Kerens to him, in a most charming manner. ‘I want to talk to you about this senator-ship, but I am very busy to-day and can’t you stay over until to-morrow? I have a vacant room here and you might just as well sleep there to-night. It won’t cost you a cent.’
“Branch demurred. He had told some of his friends just before going to the Planters that he ‘didn’t see how he could reconcile his conscience to vote for Kerens.’ But the Representative-elect of Lafayette county ‘bit.’ He stayed over night. Even the next day Kerens was too busy to talk to him. Another night at the Planters and the theatre. It was easy living. Then Colonel Kerens talked. And to make a long story short, Branch of Lafayette ‘reconciled his conscience’ to the extent of signing a letter pledging his support to Kerens. He then went home.”

Meaning thereby and intending to mean and the readers of said newspaper would understand said article to mean that plaintiff was a member elect of the Legislature and a public officer and that he had declared that he did not see how he could reconcile his conscience to vote for Richard C. Kerens for the United States Senate, but that he had visited the said Richard C. Kerens at the Planters Hotel in St. Louis and that there he had been entertained at the expense of the said Richard C. Kerens. That he had visited the theatre at his expense while at said hotel, and that he, the said plaintiff, had stayed at said hotel for two days and accepted the gifts, considerations and gratuiiies from the said Richard O. Kerens and that in .consideration thereof had promised and agreed to give his voté, as a member of the General Assembly, in favor of the said Richard C. Kerens for United States Senator and, further, meaning and intending to mean and the readers of the newspaper article would understand it to mean that plaintiff had accepted and received bribes and that he had laid aside his conscience and had .wilfully and corruptly because of said bribes, gratuities and gifts agreed to cast his vote in favor of the said Richard C. Kerens for United States Senator from the State of Missouri, and further meaning and intending to mean and the readers of said newspaper article would understand it to mean that plaintiff had been guilty of the crime of accepting bribes and was liable to be imprisoned in the penitentiary for a term not to exceed seven years.

And further meaning and intending to mean and the readers of said newspaper article would understand it to mean that plaintiff was a man without hon- or, and that he had bartered away his conscience. That he had agreed for a corrupt and improper consideration to cast his vote in favor of a. man for United States Senator whom he knew it was against good conscience to vote for, and. further meaning and intending to mean and the readers of the said newspaper article would understand it to mean that plaintiff was not guided by duty but that he was controlled by corrupt means and that he was a purchasable man and a man who could not be trusted as a public officer, and that he had betrayed his trust as a member of the Legislature.

Plaintiff says that said article was untrue and that each allegation thereof was untrue and that the defendant well knew at the time of the publication thereof that the same was untrue, and that said article was maliciously and wickedly contrived for the purpose of injuring the plaintiff in his good name and reputation and to vex, oppress, destroy and impoverish him, the said plaintiff.

The damages were laid at twenty-five thousand dollars actual damages, and twenty-five thousand dollars exemplary or punitive damages.

On April third, 1905, defendant filed a motion to dismiss the cause for want of jurisdiction, which motion was overruled June 7th, 1905, and defendant filed its bill of exceptions.

The defendant then filed an answer, the first count of which was a plea in abatement to the jurisdiction of the circuit court of Lafayette county, and as the second defense it admitted that it published its said newspaper on December 14th, 1904, in the city of St. Louis, but denied each and every other allegation in the petition contained, and for a further defense to said petition, the defendant alleged that at the time complained of there was pending in the State of Missouri the matter of the election of a United States Senator to succeed the Honorable Francis M. Cockrell, • whose term was about to expire. That one R. C. Kerens was a candidate for said office. That there was being maintained.by or for the said Kerens, as such candidate, a lavish hospitality at the Planters House, a hotel in the city of St. Louis. That the plaintiff, being a member elect of the General Assembly of the State of Missouri, came to the city of St. Louis and did pay several visits to the rooms of the said Kerens in the said Planters House. That the plaintiff had stated to divers persons that he could not vote for the said Kerens. That after visiting the said Kerens’s rooms or quarters, and enjoying his hospitality, the plaintiff announced himself as a supporter of said Kerens, and the defendant made the publication complained of as a publication of these facts and as legitimate comment thereon, being' a matter of public interest which it was its right and duty to discuss and to present to the public, who wére entitled to know all the acts and doings of the candidates for the office of Senator and of the members of the Legislature who were charged with the duty of'electing such Senator.

For further defense to said petition, the defendant alleges that upon and prior to his first coming to the city of St. Louis in connection with said senatorial candidacy, the plaintiff announced to various persons, and in unqualified terms, that he could not bring himself to support the said Kerens for the office of United States Senator, and his position and statements in this respect were matters of common report in the said city of St. Louis. That said Kerens was a man who had long participated in politics of Missouri and was well known to the public men of the State, and the matter of his qualifications for the office of Senator was and long had been well understood by them. That after several visits to the headquarters of the said Kerens, the said plaintiff changed his attitude and announced himself as a supporter of the said Kerens, and thereby caused it to be believed, and defendant did believe, that the attentions and hospitalities of the said Kerens and his supporters had caused such change of attitude on the part of said plaintiff and, so believing, the defendant published the said article as aforesaid, without malice and as a matter of news of great public interest and importance. Wherefore, having fully answered, defendant prays to be hence dismissed with its costs.

To this answer the plaintiff filed a reply in the nature of a general denial of the allegations of the answer.

The evidence of the plaintiff was to the effect that the capital stock of the defendant company is five hundred thousand dollars and is worth more than par. The circulation of the paper in December, 1904, was approximately 100,000 daily, and extended to the various counties of this State and other States. Sixty or seventy copies were circulated in the town of Lexington. Various residents of Lafayette county testified that they had read the article complained of. These same persons, over the objections of the defendant, testified as to their understanding of the meaning of the article. Some to the effect that the article charged Mr. Branch with having received a bribe and others that it charged him with having been influenced by Mr. Kerens’s hospitality.

Plaintiff testified that in November and again in the early part of December, 1904, he was in St. Louis and was at the Kerens and Niedringhaus headquarters at different times. His stopping place was at the Laclede Hotel, and he paid his bills there. In this he was corroborated by Mr. Pritchett, the clerk of the hotel. At this -time he accepted a. dinner invitation from Alex. Niedringhaus, the brother of Thomas K. Niedringhaus, the latter being a candidate for United States Senator, but he accepted no hospitality at the hands of Mr. Kerens or from any person for him. He did not tell Mr. Alex. Niedringhaus that Kerens had offered him transportation or that he could not reconcile his conscience to vote for Kerens. He did not think that he had any knowledge of telling Mr. Madison or Mr. Van Trump that Mr. Kerens had told Mr. Elkins that, he, Branch, was a man after his own heart and would vote for him without any solicitation, and that he, Branch, told Kerens that he was running too fast, not to push him along, or words to that effect. During his canvass for the office of Representative he was not committed to anyone for United States Senator. His mind was not made up. He so told Mr. Madison on the way to St. Louis in the latter part of November. In fact he had made up his mind. He was asked by a great many who his preference was for Senator, and he told them that he had not made up his mind whom he would support. He was going by Mr. Welborn’s instructions. Mr. Welborn was his Congressman and had asked him not to commit himself openly. He told the Kerens people privately that he was with them, but not ready to commit himself openly. On his visits to St. Lonis he told Mr. Akins and others who opposed Kerens that he was not ready to commit himself. Immediately on his return from St. Louis in December, he wrote the letter committing himself to Kerens. This letter was published on December 13th, and on the 14th appeared the article, which is the foundation of this suit. After this article was published, it was generally shoved at him wherever he went and they did not accept him as a boarder in Jefferson City, until they had investigated his character. Some people would stop him and say they understood that he had sold out and say, “I guess you will buy lots of farms and get into a big business.” His banker, Mr. Walter Waddell, and his neighbors Mr. Gratz and Mr. Carter, said they believed the piece.

An editorial published in the Republic of December 5, 1904, entitled “Reprehensible Campaigning,” was admitted in evidence over the objection of the defendant. That article did not name any senatorial candidate, but condemned as a reprehensible business the procuring of editorial endorsements for a money or any other consideration.

On the part of the defendant the evidence tended to show that T. K. Niedringhaus was a candidate for United States Senator in 1904. His brother Alex. Niedringhaus testified that Branch came to see him about Thanksgiving, 1904, told him he had not made up his mind on the question of Senator, but that he had met Kerens and Elkins a short time before, and that Kerens had introduced Branch to Elkins, and told him that Branch was a man after his'own heart, and was going to vote for him for S’enator. Branch said he had not said that; he told Kerens that he was going too fast; not to shove. He saw Branch also the same day and asked him who he would support for-Senator and Branch said he did not know, but his conscience would not permit him to vote for Kerens. He also said he was afraid to go back to Kerens's headquarters because Kerens had made it so attractive for him there.

Yan Trump testified that he heard part of the conversation between Branch and Madison and heard Branch say he told Kerens he was going too fast.

C. C. Madison testified he met Branch by appointment and they went together to the Niedringhaus headquarters. Here Branch detailed his conversation with Kerens at the time he was introduced to Senator Elkins, when Kerens told Elkins that Branch had come out for him, and Branch told him he was going too fast.

Akins testified that Branch came to see him in November, 1904, and he tried to get him to support Parker, but Branch would not commit himself; said he was looking over the ground.

E. L. Morse was one of the Kerens managers at the Planters House. They had from six to eight rooms at the top floor of the Planters, and a part of the; time fifteen or twenty. He saw Branch there about Thanksgiving and again about the 10th of December. Branch did not take dinner there then. Later about the 13th or 14th, after he had come out for Kerens, Branch was there for several days. Some twenty or twenty-five members of the Legislature were- guests of Kerens.

Thomas Marks was another Kerens manager and was at the Planters. At times there were fifteen or twenty guests sleeping at headquarters. Col. Kerens was “a hospitable sort of chap,” he was hospitable to every one. He would ask them to stay to dinner and they had cigars for everybody and made up' theatre parties; we were doing the best we could to advance the Colonel's- interest in any proper way. Kerens paid the bills.

P. E. Burton testified that he is now an editor in Joplin, was formerly a reporter of the Republic and was on the Republic in December, 1904; he wrote the article complained of. The part of the article referring to Branch appeared only in the fast mail edition of the Republic. It was crowded out of the city edition. Witness learned from other reporters and Alex. Niedringhaus that Kerens took members of the Legislature to theatre parties, and entertained them in other ways. Alex. Niedringhaus and Yan Trump' told witness Branch had said he could not reconcile his conscience to vote for Kerens. Swanger had tried to get Burton to go into partnership with him and buy the Springfield Republican ; Kerens said he could get the newspaper for him, Swanger, if he would support him (Kerens) for the Senate. Swanger refused the proposition. A. P. Murphy told Burton of efforts of Kerens to get Murphy to support him for the Senate. Offered Murphy one thousand dollars for several days ’ expenses if Murphy would support him; Murphy declined the offer. Burton was not moved by malice or ill-will. He wrote the article in question as a matter of political news. It was not his purpose to charge bribery. The expression “seeing the light” is used with regard to any one who changes his opinion. The witness is a -Republican in politics and is now the editor of a newspaper at Joplin. The Republic was for General Cockrell for Senator. As between the Republican candidates they favored no one, but were opposed to Kerens. Burton saw Branch about the Planters several times prior to the publication in question.

Van Trump, recalled for cross-examination, said Branch did not state in any conversation with him and Alex. Niedringhaus that his conscience would not permit him to vote for Kerens, and he did not tell Burton that Branch had so stated.

Plaintiff testified in rebuttal that be did not tell either Alex. Niedringhans- or Van Trump that he could not reconcile his conscience to vote for Kerens, and he did not tell Niedringhans that he was afaid to go hack to Kerens because they made it so attractive to him.

The jury returned a verdict for the plaintiff for twelve thousand and five hundred dollars. The defendant in due time filed its motions for a new trial and in arrest of judgment, which were overruled, and thereupon an appeal was taken by the defendant to this court.

I. The first assignment of error is that the circuit court of Lafayette county was without jurisdiction of this case, because, as it is alleged, the defendant did not publish the alleged libel in Lafayette county and did not have an office or place of business for the transaction of any business in said county. The learned counsel for the defendant concede that this point was decided adversely to their contention in Julian v. The Kansas City Star Company, 209 Mo. 35, but they reserve the point in this case for the reason that the Julian case has not yet been decided by the Supreme Court of the United States, to which it was appealed. We are entirely satisfied with the conclusion reached in the Julian case by the Court in Banc and hence this point is ruled against the defendant upon the authority of that case.

II. By far the most serious point raised on this appeal is as to the admissibility of the testimony of the witnesses on behalf of the plaintiff as to the meaning of the alleged libelous article, which forms the basis of this case. In Julian’s case it was said by this Court in Banc: “On the question of the admissibility of evidence of that kind, the authorities are not entirely uniform. They all agree to this extent, viz: if the words are ambiguous, or if under the conditions and circumstances in which they are used, they are susceptible of a double meaning, the question as to whether they were used in one sense or the other is a question for the jury. And the authorities also agree that testimony showing the particular conditions and circumstances which are thought to give the peculiar meaning is competent, but whether or not after those conditions and circumstances are shown a witness should be allowed to testify as to what he understood the words to mean when he heard or read them there is a difference of opinion.” In that case it was held that the expression, “Julian is remembered here as a member of, the Legislature who did well in a legislative way, but also, as Stone’s chief of police of whom a Democratic Senate committee said, 'He is not the proper man for the position,’ ” was sufficiently ambiguous in its meaning to justify, the circuit court in submitting such testimony to the jury for interpretation. If this evidence in this case was admissible at all, it must have been upon the ground that the language of the article published by the defendant was ambiguous, and such is the contention of the counsel for plaintiff. It- is insisted by the plaintiff that while the article does not in express terms charge the plaintiff with agreeing to vote for Mr. Kerens for a cash consideration, it did nevertheless convey the idea or impression that plaintiff had agreed to vote for Mr. Kerens for some reason other than one which ought to have actuated a member of the Legislature who was honestly and conscientiously trying to discharge the duty he owed himself and his people. The words which seem to the plaintiff to impute to him a sinister motive were the headlines, “Branch Eases Conscience;” and the words, “Did no.t see the light;” “Bit,” and, “Reconciled his conscience.” The circuit court directed the jury that this article did. not charge the plaintiff with having accepted a money bribe from R. O. Kerens for his support of the said Kerens for the Senate, and that in determining whether or not the publication was libelous the jury were not to consider it as making a charge of bribery; in so doing, we think the court correctly interpreted the article. There was no hint of money being used to obtain the vote of plaintiff anywhere in the article. There was no charge of bribery directly or indirectly, and no ground for construction or interpretation of the article upon that theory. When this evidence was first offered as to how this article was understood by the witnesses who read it, the court sustained the objection to the testimony, but later on permitted witnesses to give their understanding of the testimony; thus, Judge Chinn testified that he understood the article to mean that plaintiff had- been offered and had accepted a valuable consideration from Mr. Kerens by reason of which he changed his vote from Niedringhaus to Kerens. On cross-examination he stated that he understood the article to be that plaintiff had gotten boodle or corrupt money. Mr. W. B. Ming testified that he considered the article a reflection upon Mr. Branch’s political integrity, that he had changed his vote and that for a consideration, he would not say for a money consideration, but a consideration of pecuniary value. Other witnesses testified to practically the same effect.

The contention of the defendant is that the language is perfectly plain and unambiguous and that there was no ground for admitting this testimony of these witnesses as to their understanding of what the article meant.

This court has settled that the constitutional provision respecting libel suits does not divest the judge of his duty to determine matters of law arising in the case, just as in any other case. In Heller v. The Pulitzer Publishing Company, 153 Mo. 205, this court said; “Thus, in the first instance, upon demurrer or plea interposed by the defendant, the conrt decides the question of libel or no libel. If the decision is for the defendant, the matter ends as to that court, but if it is against the defendant the case must go to the jury upon the question of libel or no libel, the court directing the jury as to the general principles of law touching libel, but the jury are at liberty to follow their directions or not, and if the jury find for the defendant, the case ends there as to that court, but if the jury find against the defendant a motion in arrest by the defendant will lie in the same manner it would have done before the passage of the act. ’ ’ [Ukman v. The Daily Record, 189 Mo. 391, 392.] So that if this evidence was incompetent it was under our decisions the duty of the court to exclude it, just as if it were incompetent evidence in any other case.

As we understand the opinion in the Julian ease, if the words of an article are not ambiguous, if their meaning is plain, and according to their natural and ordinary significance in the circumstances attending their publication they do not charge a libel, then the testimony of witnesses as to their understanding of the meaning of such article is not admissible. In the Julian case the testimony was received on the ground that the language of the publication was ambiguous or double in its significance and that view was strenuously combated by the minority of the court. Adhering as we do to the majority opinion in that case, the question still recurs, was the article upon which this action for libel is predicated so ambiguous or double in its meaning that it was competent to admit .the testimony of witnesses as to their understanding of its meaning? Before proceeding to a critical examination of the article itself, we may premise that the admission of this evidence had produced a most anomalous condition of affairs from a legal standpoint, to-wit, the circuit court authoritatively instructing and advising the jury that the said publication complained of does not charge the plaintiff with having received a money bribe from R. C. Kerens for his support for the office of United States Senator, and in determining whether or not the publication was libelous the jury were not to consider it as making a charge of bribery, and yet the court permitted Judge Chinn and other witnesses to testify to the jury that he understood it to mean that plaintiff had gotten hoodie or corrupt money to change his vote from Niedringhaus to Kerens, and thus the jury, who were to determine whether this was libel or not, were left to prefer the interpretation of this article by these witnesses who read it, to the construction which the court itself put upon it. It is obvious, we think, that any system of judicial investigation which leads to such a conclusion as the above, is contrary to all of our conceptions of the prerogative of the judge in directing a jury on all questions of law. If we are right in holding that previous decisions of this court in Heller v. Pulitzer Publishing Company, 153 Mo. 205, and Ukman v. The Daily Record, 189 Mo. 378, uphold the power of a judge in a libel case to determine all matters of law arising in the case in an action for libel, as well as in any other case, then unquestionably it was the duty of the circuit court, if he was of the opinion that the article in question did not charge the plaintiff with bribery, to so instruct the jury, and he erred in receiving the testimony of witnesses, which directly contradicted the instructions which he gave to the jury. As said by this court in Julian v. Kansas City Star Co., 209 Mo. l. c. 79, “It will be noticed that the authorities above quoted consider the subject of the interpretation of the alleged defamatory words under three heads: first, words that are not ambiguous or double in their meaning; second, words on their face susceptible of more than one meaning; third, words innocent in themselves, but which derive an offensive meaning because of certain conditions and circumstances under which they were uttered. In the first there is no question for the jury (at least in the sense of its being a question of fact).” So that the circuit court having determined in its own mind that the language of this article was not susceptible of a charge of bribery, the court in our opinion erred in permitting the witnesses to state their understanding of the article to be that it did charge the plaintiff with having received boodle or corrupt money to change his vote from Niedringhaus to Kerens.

The learned counsel for the plaintiff in their brief say, “No one can read the article here sued on without being convinced that while the writer did not in express terms charge the plaintiff with agreeing to vote for E. C. Kerens for Senator for a cash consideration, he did nevertheless seek to convey the idea or impression that the plaintiff had agreed to vote for Kerens for some reason other than a reason which ought to actuate a member of the Legislature who was honestly and conscientiously tryipg to discharge a duty he owed to himself and to his people. ’ ’

Having reached the same conclusion that the circuit court did, that the article did not charge bribery of the plaintiff, was it libelous notwithstanding it did not charge him with having received a money bribe? The court instructed the jury that the publication did not charge plaintiff with having received a money bribe from Kerens for his support of Kerens for United States Senator, but charged in substance that the plaintiff was by the hospitality, attentions and solicitations of said Kerens induced to give him his support, although plaintiff had previously said he could not reconcile his conscience to vote for Kerens, and if the jury believed that the defendant’s reporter, who wrote the article, was induced by the conduct of plaintiff to believe that the publication was true in substance, and that the conduct of plaintiff was fairly and reasonably calculated to induce such belief, and so believing 'the reporter wrote and published said article without malice and as a proper piece of information for the public, the verdict should be for the defendant. In determining whether the article was libelous, it is fair and proper to take into consideration the circumstances surrounding the plaintiff and the defendant at the time of the said publication. Now as disclosed by the record, there was a general election in Missouri in the early days of November, 1904, at which members of the General Assembly were elected, who were to elect a United States Senator. The Republicans had a majority on joint ballot in the Legislature. By Thanksgiving day Mr. Kerens had opened headquarters in St. Louis from which to promote his candidacy for United States Senator. He had several managers, among whom Avere James E. Goodrich, E. L. Morse and Thomas R. Marks. He had five rooms regularly assigned to him at the Planters House in St. Louis, and more when wanted. He kept what might be termed “open house” at the Planters and visitors from all parts of the State were generously entertained and looked after. Fifteen or twenty people at a time ate there and were furnished rooms and cigars at the expense of Mr. Kerens. In the evening, it seems there were theatre parties, and this was kept up until the Legislature convened at the Capital. The plaintiff was a member elect of the General Assembly and a Republican in politics. According to his testimony, even before his election, he had determined, if elected, to vote for Mr. Kerens. “I knew I would vote for Kerens if I was elected.” And yet, when he was asked, as he admits, by various persons, including members of his own political party, whom he would vote for, he answered always that he was not committed to any one and that he had not decided what he would do. He was pursuing this course, he says, under directions from Mr. Welborn, the Republican Congressman from plaintiff’s Congressional district. After his election he visited St. Lonis on two occasions; first, in November, and again in the early part of December. He stopped at the Laclede Hotel and paid his bills there. He testified that he was at the Kerens and Niedringhans headquarters at different times. He accepted a dinner invitation from Alex. Niedringhans, the brother of Thomas K. Niedringhaus, one of the candidates for the Senate, but accepted no hospitality at the hands of Kerens. He says he told Mr. Niedringhans he would not commit himself at all at that time, but told Mr. Kerens that while he was personally for him he would not commit himself to him at that time because he wanted to see if public sentiment at home would back him. He did not want to go against his constituents. He told Mr. Madison that it was none of his business what he was going to do, and he told Mr. Akins, the National committeeman, that he was not ready to commit himself. Indeed, he was evasive to everybody except Mr. Kerens and the Kerens managers. By the public generally, it was understood that he had not made up his mind as to whom he would support for the Senate. When he came to St. Louis he was often at the Planters House mingling with the guests at Mr. Kerens’s headquarters. He was fully advised as to the nature of the campaign which Mr. Kerens was conducting. On this subject he says: “I saw what they were trying to do; when I got down and saw what they were trying to do, I made up my mind to come out for him [Kerens] publicly.” The defendant newspaper could only know what plaintiff announced for the public ear, and that was that he had not made up his mind and wished to consult with his constituents. Kerens and his hospitality (and to what extent he shared it, the public could not know), were the only things apparently that could intervene between a mind that was not made up, and one that had become absolutely fixed. These appearances were created by the plaintiff himself. Obviously, if the plaintiff had been as frank with the public as he was with Keren’s and his managers, he would not have invited the criticism contained in the article. On the surface of things, by the impression created by his own assertions, the public generally were given to understand that he had not been able to make up his mind as to how he would vote for United States Senator. In this apparent state of mind he had gone to St. Louis, and while he said he did not accept any pecuniary hospitality from Mr. Kerens or his managers, he did mingle frequently with Mr. Kerens’s friends at the Planters House, but, as defendant had been informed, had stated that he could not reconcile his conscience to vote for Kerens. In a short time, or in a few days at least, after having met Mr. Kerens and mingled with his managers at the headquarters at the Planters House, he came out in an open letter pledging his support to Mr. Kerens, so that the defendant and its correspondent and others, who were watching the political situation, drew the conclusion that plaintiff had made up his mind in St. Louis, to support Mr. Kerens, and that he had been induced to do so by Mr. Kerens’s solicitations and hospitality, and the conduct of the plaintiff was fairly and reasonably calculated to induce this belief, and this is the whole purport of the article on which this libel is based. Read in the light of the circumstances surrounding the parties and in view of the political contest at that time going on for United States Senator; in view of the letter which had just been published the day before, in which plaintiff pledged himself to support Kerens, we are unable to discover anything in this article further than an attempt to explain when, and where, and how, plaintiff became converted from his indecision as to his vote, to an absolute purpose to vote for Kerens.

We are unable to find any charge of corruption of plaintiff by Mr. Kerens or anything smacking of a bribe; on the contrary, a fair summing up of the whole article amounts to nothing more than this, that plaintiff by the hospitable attentions and solicitations of Mr. Kerens had been induced to declare himself as one of his adherents, and to announce that he would vote for him, although the public had previously been informed that he had said he could not reconcile his conscience to vote for Kerens.

In our opinion there was nothing in this article that was libelous within the meaning of our law as to what constitutes a libel. While the plaintiff contends that notwithstanding this article does not charge that he was induced to agree to vote for Mr. Kerens for a cash consideration, yet, he contends that the article sought to create the impression that plaintiff had agreed to do so, for some other reason, one which ought not to have actuated a member of the Legislature, who was trying to discharge the duty he owed himself as well as to his people, but what that reason was is not stated in any concrete form so that we may be able to determine that it would be libelous to ascribe it to the plaintiff.

The plaintiff was a public officer. The article related to his action as such, to-wit, his vote for United States Senator, and as such was subject to a fair criticism by the newspaper press. It is not libelous merely to point- out a seeming inconsistency in a public officer, and while our laws rigidly protect the private character of the citizen, the acts of a public officer are fairly open to criticism and comment. No honest officer has any right to complain of just and fair criticism, and when the article in question is read in the light of the then surrounding circumstances, it is nothing more than a comment upon the conduct of plaintiff in making a change of position in the senatorship from what the public had been led to believe it had been up to the time his letter endorsing Mr. Kerens was published. While there are certain slang words used, there is no pretense that they imported any corrupt conduct on his part. Indeed but for the incompetent testimony as to the meaning of the article, we cannot conceive of the jury rendering the verdict they did in this case. In our opinion the article did not charge bribery, it was not ambiguous, but was merely a statement of the circumstances attending plaintiff’s announcement of his intention to support Mr. Kerens and a change from his announced position on the senatorial question prior to that -time, and in our opinion was the subject of fair and just criticism of official conduct and did not amount to a libel.

Having come to this conclusion, it is unnecessary to discuss other propositions advanced for a reversal of the judgment. The judgment is reversed.

Burgess and Fox, JJ., concur.