author: BOND, P. J.

text:
    BYRD N. McKINNEY et al., Appellants, v. FIDELITY MUTUAL INSURANCE COMPANY.
    Division One,
    March 12, 1917.
    1. INSURANCE: Change of Beneficiaries: By Contract. A provision inserted in a policy belonging to the class of insurance v'herein the rights of the beneficiaries are vested, which entitles the insured to change them and to divest them of its proceeds, is as broad as its terms and no broader, and must be construed according to the terms expressing it in a given case.
    2. -:-: To What Insurance Applicable. The right to change the beneficiary named in a policy, whether as an incident to fraternal-beneficiary insurance or as one resting in contract expressed in an ordinary:life policy, is equally efficacious, and the power to exercise it ig measured by the language on which it is founded. Whether the right arises by convention or from the nature of the insurance, the beneficiary to be affected by its exercise has a conditional interest only in the policy' proceeds, while the power to change such beneficiary continues to exist.
    3. -:-: Only Incidentally Applicable. Where no change was made in the beneficiaries designated when the policy was issued, the terms of the provision authorizing the insured to change them need not be considered further than as affording incidental support for what was actually done by the insured in the delivery to him of a paid-up policy upon a surrender of the original policy.
    4. -: Statutes as Part of Contract. The statutes governing the business of a foreign insurance company licensed to do business in this State are as much a part of an ordinary-life policy written by it as if the language of the statutes had been inserted in the policy as a part of the agreement of the parties.
    5. -: Surrender for Paid-Up Policy: Without Consent of Beneficiaries: Legal Holder. Since the statutes say that the “legal holder” of a non-forfeitable ordinary-life policy may demand a paid-up policy for an amount computed by a statutory ¿lan, and that the “legal holder” of the policy may himself surrender the policy and thus avoid its self-enforcing provisions for extended insurance, the insured, who within the meaning of such statutes is the “legal holder,” may, without the consent of the beneficiaries, surrender a policy upon which he has paid three or more annual premiums, and in lieu thereof receive a paid-up policy for the statutory sum, and that sum being both in accordance with the statute and the stipulations of the policy the company by paying it may be discharged from any further obligations under the policy.
    6. -: -: Separate Estate of Wife. The statute (Sec. 6944, R. S. 1909) which provides that an insurance policy made payable to the wife of the insured “shall inure to her separate benefit, independently of the creditors” of the husband, was designed to make whatever should come to her upon the payment of the insurance her separate estate and to exempt it from the claims of the creditors of her deceased, husband; it does not inhibit the husband from surrendering a policy which names her as beneficiary, and accepting a paid-up policy in lieu thereof.
    Appeal from St. Louis City Circuit Court. — Hon. George C. Hitchcock, Judge.
    Affirmed.

      Clarence F. Westcoat and F. H. Bacon for appellants.
    The only'question involved in this appeal is whether or not under the terms of the original policy issued to Charles S. McKinney, and payable to plaintiffs, reserving to said McKinney the power, subject to the approval of the company, to change the beneficiary named therein, he could cancel and surrender said policy without the consent of the beneficiaries. (1) Up to á comparatively recent time policies of regular life insurance contained no reservation of the right to change the beneficiary and without that reservation it is a universally admitted rule of law that such policies confer upon the beneficiary a vested interest and property which cannot be divested without their consent. Blum v. Ins. Co., 197 Mo. 513; U. S. Casualty Co. v. Kacer, 169 Mo. 301; Bank v. Flume, 128 U. S. 795; Holmes v. Gilman, 138 N. T. 382. (2) The contracts of the fraternal beneficiary societies give the member the right to change the beneficiary, and this fact undoubtedly led the regular, or old line, life insurance companies to insert in their policies the provision permitting the change of beneficiary. From the similarity of the contracts in this respect some courts have been led to the conclusion that the insured, where the right to change the beneficiary was reserved, had an absolute control over the policy, forgetful of the fact that the contracts are very dissimilar. State ex rel. v. Vandiver, 213 Mo. 187; Westerman v. Supreme Lodge K. P., 196 Mo. 670; Commonwealth v. Equitable Beneficial Assn., 137 Pa. St. 412; Mut, Ben. Soc. v. Burkhart, 110 Ind. 189; Grigsby v. Russell, 222 U. S. 149. (3) Although the member of a fraternal society has the right to change the beneficiary, so that it is said that the beneficiary has simply an expectancy, a conditional vested interest, such beneficiary can invoke the conditions required for change of beneficiary and insist that they be observed. Their rights can only be terminated in the manner specified in the contract. It is true this is modified by the holding that the society may waive the requirement of the laws of the order as to change of beneficiary and if the certificate is surrendered and a new one is issued, the beneficiary is bound thereby; otherwise, the principle is correctly stated. Finnell v. Franklin, 55 Colo. 156; A. O. IT. W. v. McFadden, 213 Mo. 269, affirming 114 Mo. App. 191; Abeles v. Ackley, 133 Mo. App. 594; Johnson v. Ins. Co., 56 Colo. 178. (4) The policy sued on constituted an executed, voluntary settlement on the wife and daughter of McKinney, subject only to one reservation, namely, the power to revoke the designation of them as beneficiaries and appoint new beneficiaries. This right conferred upon McKinney no property in the benefit but was a power only, pure and simple, subject to all the well settled rules of law governing powers. Mut. Ben. Soc. v. Clendinen, 44 Md. 433; Arthur v. Odd Fellow’s Ben. Assn., 29 Ohio St. 553; Hellenberg v. Dist. No. 1, I. O. B. B., 94 N. Y. 580; Abeles v. Ackley, 133 Mo. App. 594. (5) McKinney had no property in this insurance under the contract, but simply the power to change the beneficiary, and such right creates no property in the subject of the power, that is, in the insurance or in the policy. Abeles v. Ackley, 133 Mo. App.' 594; Slaughter v. Grand Lodge, 68 So. (Ala.) 367; Smith v. Hatke, 78 S. E. (Va.) 584; Modern Woodmen v. Headle, 90 Atl. (Vt.) 893; Sabin v. Phinney, 134 N. Y. 428; Grant v. Faires, 97 Atl. (Pa.) 1060; 31 Cyc. 1038; Ex. p. Gilchrist, 17 Q. B. D. 521; Garland v. Smith, 164 Mo. 15; Price v. Courtney, 87 Mo. 387. (6) While the interest of plaintiffs in the policy sued on might in a loose way be called an expectancy, still they had a vested conditional interest and this interest could only be divested in the manner pointed out in the contract and in no .other way. The insured could not surrender the policy, that is dispose of the property, without the consent of the beneficiaries. Vance on Insurance, p. 399, citing Hopkins v. Heist, 92 Ky. 327; Richards on Insurance, sec. 58, citing Conway v. Supreme Council, 131 Cal. 43'T'; Ins. Co. v. Clinton, 76 N. J. Eq. 4; Sullivan v. Maroney, 76 N. J. Eq. 104; Ins.' Co. v. McGinnis, 180 Ind. 9; McCutchen v. Townsend, 127 Ky. 230; Holder v; Ins. Co., 77 S. C. 299; Roberts v. Ins. Co., 85 S. E. (Ga.) 1043; Deal v. Deal, 87 S. C. 395; Blum v. Ins. Co., 197 Mo. 513; Christ-man v. Christman, 157 N. W. (Wis.) 1099. (7) This .policy was issued in Missouri and the statutes of the State form part of it. It is a serious question whether under- our statute the provision in a policy, payable to the wife of the insured, that he can change the beneficiary (except in case of the death, or divorcement, of the wife), is not void. In re Orear, 111 C. C. A. 150, 189 Fed. 888.

      Jones, Hocker, Sullivan & Angert and James C. Jones, Jr. for respondent.
    (1) Where a policy of insurance reserves to the insured the right to change the beneficiary, the interest of such beneficiary during the lifetime of the insured is a contingent and not a vested interest; such a policy when issued becomes the property of the insured; thé insured is the legal holder thereof and the ownership and control of the policy is in him. United States Cas. Co. v. Kacer, 169 Mo. 313; Masonic Assn. v. Bunch, 109 Mo. 580; Hoffman v. Ins. Co., 56 Mo. App. 306; Robinson v. Ins. Co., 168 Mo. App. 259; Clarkston v. Ins, Co., 190 Mo. App. 631; Lewine v. K. of P., 122 Mo. App. 547; Wells v. Ins. Co., 126 Mo. 638; Callies v. Ins. Co., 98 Mo.. App. 526; Diehm v. Ins. Co., 129 Mo. App. 256; Eves v. Mod-era Woodmen, 153 Mo. App. 247; Splawn v. Chew, 60 Tex. 532; Mutual Life Ins. Co. v. Twyman, 122 Ky. 513; Hopkins v. Hopkins, 92 Ky. 324; Criee v. Ins. Co., 122 Ky. 572; Hopkins v. Ins. Co., 99 Fed. 199; Lamb v. Ins. Co., 106 Fed. 637; Ins. Co. v. Swett, 222 Fed. 200; In re Orear, 178 Fed. 632; In re Herr, 182 Fed. 717; In re Bonvillain, 232 Fed. 370; Hicks v. Ins. Co., 147 N. W. (Ia.) 883; Bilbro v. Jones, 102 Ga. 161; Littleton v. Sain, 126 Tenn. 461; Ins. Co. v. Healy, 25 N. Y. App. Div. 53; St. John v. Ins. Co., 13 N. Y. 31; Bacon on Benefit Societies and Life Insurance (3 Ed), sec. 291, (a), (b); Alba v. Ins. Co., 118 La. 1021; Hutson v. Merrifield, 51 Ind. 24, 29; Eagle v. Ins. Co., 48 Ind. 284; Ins. Co. v. McGinnis, 99 N. E. 751; Beggert v. Straub, 193 Mass. 77, 79; In re Estate Heilbron, 14 Wash. 536; Ins. Co. v. Palmer, 42 Conn. 64. (2) Where a policy contains a provision for paid-up insurance upon the nonpayment of any premium when due, conditioned upon a demand therefor and a surrender of the policy, and the policy gives the insured the right to change the beneficiary, the right to demand and surrender the policy for paid-up insurance is in the insured alone and he may demand and surrender the policy for paid-up insurance without the consent of the beneficiary. Bilbro v. Jones, 102 Ga. 161; Hopkins v. Ins. Co., 99 Fed. 199; Ins. Co. v. Swett, 222 Fed. 200; Hicks v. Ins. Co., 147 N. W. (Ia.) 883; Crice v. Ins. Co., 122 Ky. 572. (3) Sees. 6946-6949, R.' S. 1909, enter into and become a part of the policy or contract of insurance. Under these statutes the insured was the legal holder of the policy in suit, and was authorized to surrender the same either in exchange for paid-up or extended insurance or for any other consideration deemed adequate in his judgment. Head v. Ins. Co., 241 Mo. 413; Cravens v. Ins. Co., 148 Mo. 608; Smith v. Ins. Co., 173 Mo. 352; Horton v. Ins. Co, 151 Mo. 604; Capp. v. Ins. Co., 117 Mo. App. 532, 536; Fahle v. Ins. Co., 155 Mo. App. 15.
   BOND, P. J.

— I. Action on a policy of life insurance to recover amounts totalling thirty thousand dollars, or the commuted value thereof of $21,522. The answer was a general denial and the cause was . -, , , , „■ tried without a jury on an agreed statement ot facts, resulting in a judgment for plaintiffs for $2760, less costs. The plaintiffs appealed.

The agreed statement of facts, in substance, is as follows:

That this case shall be submitted to the court upon an agreed statement of facts and such other testimony as either party may deem material, all objections by .either party to the sufficiency of the pleadings being hereby waived.

The defendant is a corporation organized under the laws of the State of Pennsylvania and licensed to do the business of life insurance in the State of Missouri; that on the 29th day of December, 1903, defendant issued and delivered to Charles S. McKinney its policy of. life insurance, dated December 29, 1903, in the sum of $30,000, a copy of which is hereto attached, marked “Exhibit A,” to this agreed statement; that on December 29, 1903, Charles S. McKinney resided in the city of St. Louis, State of Missouri; that said policy (Exhibit A) remained in the possession of the said Charles S. McKinney until November 25, 1912, when it was surrendered by the said Charles S. McKinney to the defendant as hereinafter stated.

The plaintiffs, beneficiaries named in said policy, had no knowledge of the surrender of the same by said Charles S. McKinney until after his death; that all the premiums provided for in said policy were duly paid by the said Charles S. McKinney to the defendant up to November 1, 1912; that the premium due November 1, 1912, was not paid on that day, or within the thirty-day-grace period provided and allowed for such payment in the clause headed, “G-eneral Precedent Conditions,” on the second páge of Exhibit A; that said policy, on December 1, 1912, had a paid-up value of $2760, and, if not legally surrendered on or before that date, was entitled to be continued in force for the full amount thereof for a period of three years and one month from that date; that on November 19, 1912, said Charles S. McKinney wrote to the defendant company as follows:

St. Louis, November 19, 1912.
Mr. L. G. Fouse, President
Fidelity Mutual Life Insurance Co.,
Philadelphia, Pa.
My Dear Sir: •
I have a policy with your company No. 148,948. I want to take paid-up insurance on this policy.
I inclose you self-addressed envelope so that you may further direct my steps in this direction.
Thanking you in advance.
Yours truly,
C. S. McKinney.

That said letter was dnly received by said L. G-. Fonse on or before November 22, 1912; that on November 22, 1912, the defendant company, through its authorized agent J. B. Franks, assistant actuary, wrote to said Charles S. McKinney the following letter:

Philadelphia, Pa.
November 22, 1912.
IN RE: PAID-UP INSURANCE LOAN.
No. 148,948.
Mr. Charles S. McKinney,
4109 Westminister PI.,
St. Louis,.Mo.
Dear Sir:
We have your favor of November 19. Your policy of the above number can be surrendered at the present time for a paid-up policy of $2760 payable in one sum at your death, etc.
Yours truly,
J. B. Fbanks,
Assistant Actuary.

That said letter was dnly received by said Charles S. McKinney on or before November 25, 1912; that on November 25, 1912, the said Charles S. McKinney wrote to L. Gr. Fonse, president of the defendant company the following letter;

St. Louis, November 25, 1912.
Mr. L. G. Fouse,
Fidelity Mutual Life Insurance Co.,
Philadelphia, Pa.
Dear Sir:
I am enclosing you my policy 148,948. Also I am returning you-blank form No. 375, properly filled out, and you may return to me the paid-up value on this policy.
Thanking you in advance,
Yours truly,
Charles S. McKinney.

That said letter was duly received hy said L. C. Fouse, president, on Or before November 28, 1912; that on November 25,1912, the said Charles S. McKinney, executed and sent to the defendant company with his said letter of that date the following paper, to-wit:

SURRENDER AND CANCELLATION OF POLICY CONTRACT.
I, the insured under policy 148,948, issued on the 29th day of December, 1903, on the life of Charles S. McKinney, of St. Louis, Mo., by the Fidelity Mutual Life Insurance Company, of Philadelphia, Pa., do hereby in consideration of the issuance of a paid-up policy for $2760, payable in one sum at death, request a cancellation of said policy and do, for myself and my legal representatives, hereby release and forever discharge the said Fidelity Mutual Life Insurance Company from all actions, causes of action, suits, controversies, claims and demands whatsoever, for and by reason of said policy No. 148,948, or of any matter, cause or thing connected therewith.
In Witness Whereof I have hereunto set my hand the 25th day of November, A. D. 1912.
Charles S. McKinney.
Witnesses:
Omab Hilton.

That said paper was duly received by the defendant on or before November 28, 1912; that pursuant to the request contained in the letter of Charles S. McKinney, of November 25, 1912, and in the paper designated “Surrender and Cancellation of Policy Contract,” hereinabove set out, the defendant prepared and executed its policy of paid-up insurance dated November 25, 1912, in the sum of $2760, a copy of which policy is hereto attached, marked “Exhibit B,” and on December 3, 1912, wrote to the said Charles S. McKinney the letter of that date, a copy of which is as follows;

Philadelphia, Pa., December 3, 1912.
IN RE: POLICY NO. 148,948; ENCLOSED.
Mr. Charles S. McKinney,
4109 Wesminster Place,
St. Louis, Mo.
Dear Sir:
We enclose herewith participating paid-up policy of aboye number for $2760 issued per instruction of our actuarial department, and your letter of the 25th enclosing policy and form No. 375.
Yours very truly,
R. L. Tuix,
Secretary Policy Dept.

That said letter dated December 3, 1912, and said policy (Exhibit B) were sent to the said Charles S. McKinney through the medium of the TJnited States mail, postage prepaid, on December 3, 1912, and were delivered at his residence, 4109 Westminster Place, St. Louis, Missouri, on December 5, 1912; but it is further stipulated and agreed that the letter of December 3, 1912, and said policy (Exhibit B) were not, delivered at the residence of Charles S. McKinney until after the death of said Charles S. McKinney, on December 5, 1912, as hereinafter set forth, and said policy was not seen by Charles S. McKinney prior to his death on said December 5, 1912.

Plaintiffs, beneficiaries named in said original policy, returned said second policy to the company and refused to accept same; that said policy was .afterwards returned to the attorney for plaintiffs by the company, and it is agreed that plaintiffs shall deposit said policy with the clerk of the circuit court of the city of St. Louis, upon the filing of this agreed statement of facts, to be retained by said clerk until the determination of this suit, when it shall be delivered to defendant; that the rights of the plaintiffs shall not be prejudiced by anything done by them in regard to -said policy; that said' Charles S. McKinney died on December 5, 1912, about one p. m., in- the city of St. Louis and at the Mercantile Club in said city; that his death was sudden; that the cause thereof was heart disease; that due proofs of death and demand for the payment of the sum of $30,000 were made by plaintiffs, and that the payment of said sum-was refused.

That the defendant admitted its liability for the sum of $2760, the sum insured by Exhibit B; that it tendered payment of said sum .to the plaintiffs; that acceptance of said sum was refused; that the defendant has at all times maintained its tender and upon the filing of this agreed statement has deposited in court the sum of $2760, which it still admits is due to the plaintiffs ; that said original policy referred to in paragraph two of the agreed statement of facts has a commuted value payable in lieu of the installments payable under said policy and under the conditions specified therein of $21,522; that should the finding and judgment of the court be that the defendant is liable to plaintiffs on said policy mentioned in paragraph 2 of this agreed statement of facts, being the original policy issued to Charles S. McKinney, then judgment may be rendered in favor of plaintiffs for the commuted value of the installments payable under said policy and the amount deposited in court shall be applied as part payment thereof, and the court costs shall be taxed against defendant; but, if, on the other hand, the court shall find and adjudge that the defendant is liable for only the amount of $2760, then the court costs shall be taxed against the plaintiffs and be deducted from the said deposit; that from and. after the issuance of the original policy and until it was surrendered by the insured, ■ said policy remained in the sole possession of the insured and was never in the possession of the plaintiffs, but plaintiffs had knowledge of the existence of said policy and that they were designated as beneficiaries therein; that the insured paid all the premiums that were paid on said policy and that said policy was never assigned or pledged by the insured or by the beneficiaries thereunder; that' said original policy was at all times free from debt within the meaning of that term as used in said policy.

II. The question presented by this appeal is whether the insured had the power to surrender his

original policy for a paid-up policy payable at bis death to the same beneficiaries, without their consent. The policy belonged to a class of insurance contracts wherein the rights of the beneficiaries were vested (U. S. Casualty Co. v. Kacer, 169 Mo. 313; Blum v. N. Y. Life Ins. Co., 197 Mo. 513) and could not be divested prior to the innovation of inserting in such policy a contract provision which entitled the insured to change the beneficiary. This latter provision is as broad as its terms and no broader, and hence it must be construed according to the terms and stipulations expressing it in a given case. [Grigsby v. Russell, 222 U. S. 149.] The right to change the beneficiary, whether as an incident to fraternal-beneficial insurance, or as one resting in contract expressed in an ordinary policy, is equally efficacious, and the power to exercise it is measured by the language on which it is' founded. Whether it arises by convention or from the the nature of the insurance, the beneficiary to be affected by its exercise has a conditional interest only in the policy proceeds, while the power to change such beneficiary continues to exist. [Rosman v. Travelers Ins. Co., 96 Atl. (Md.) 875; Diehm v. Ins. Co., 129 Mo. App. 256; Lewine v. Sup. Lodge K. P., 122 Mo. App. l. c. 554; Mut. Ben. Life Ins. Co. v. Swett, 222 Fed. 200; Bacon, Benefit Societies, sec. 291a.] There is some contrariety of view in the rulings in other states (cited in the briefs of counsel)respecting the interest remaining in the insured after he had procured a policy in accordance with the ordinary-life plan to be made payable to another, coupled with a reserved power to change the beneficiary. The conclusion we have reached from the agreed facts renders it unnecessary to review or attempt to reconcile the conflicting views expressed by the courts of sister states.

TIT. The legal questions presented on this appeal are readily resolvable, under the statutes and decisions, of this State.

Before calling specific attention to these, it is well to note that we are not called upon to deal with any change made by - the insured of the beneficiaries designated when he obtained the policy; for the paid-up policy received by him was payable to the same beneficiaries as the original ' policy, which was surrendered by him. Not having exercised any power vested in him under that provision of the policy, its terms need not be considered further than as affording an incidental support (in connection with any other provision incorporated in the policy by law or the agreement of parties) for what, was actually done by the insured culminating in the delivery to him of the paid-up policy. If there was warrant for this action on his part, either in the terms put into the original- policy by the parties or written into •the policy by force of the statutes of this State, then the judgment of the court below must be affirmed.

Sections 6946, 6947, 6948 and 6949, Revised Statutes 1909, govern the conduct of the business of foreign insurance companies in this State and are as much a part of an ordinary-life policy written by a foreign company licensed to do business in this State as if the language of the statutes- had been inserted in the policy as a part of the agreement of the parties to that contract. [Head v. Ins. Co., 241 Mo. l. c. 413, and 'cases cited.] Those statutes need not be copied into this opinion. In general their effect is that policies upon which three annual premiums have been, paid shall be non-forfeitable; shall carry extended insurance according to a statutory plan;. that the “legal holder” of such a policy (Sec. 6947) may; demand a paid-up policy for an amount computed by a statutory plan; that the “legal holder” of the policy (Sec. 6949) may himself surrender the policy and thus avoid the self-enforcing provisions of the statute. With the powers expressed by the terms of these statutes embodied in the original policy, it is difficult to see what impediment conld exist in the way of the transaction which was had between the insured and the défendant company. They were the parties to the convention and possessed an absolute right and power to frame their contract as they saw proper, provided its. terms and stipulations were not contrary to any rule of law or public policy of. this State. The insured was ex necessitate the “legal holder” of the policy issued to him, although payable to his wife and child, by virtue of the provisions contained in the policy and the rights secured to him by its terms. Foremost among these was the absolute power to substitute for the original beneficiaries, any other person including himself, at his own will and pleasure. Of coordinate importance to that right is the statutory alternative given to the insured after the payment of three premiums on the policy. As the result of the agreement when the policy was obtained, it was delivered to the insured. Under the terms of that instrument, inserted both by the act of the parties and by the law, certain rights were guaranteed to him which could only be enforceable -upon the assumption that he was legally, as well as actually, the holder of the policy; for under the terms of that instrument he could not, without the production of the policy, either alter the beneficiary or surrender it and obtain in lieu a paid-up policy. As to this the language of the policy is significant and conclusive, to-wit: “The insured, with the approval of the president or vice president, may, upon the surrender of this policy, change the beneficiary.” This demonstrates that the status of the insured, as the “legal holder” of the policy, inhered in the formation of the contract itself. The policy provided in a similar way for its surrender by the insured and the delivery to him in consideration thereof, of a paid-up policy in the exact sum for which judgment was rendered in the trial court. Our conclusion is that the policy in question was legally surrendered, unless this was prevented by the terms of another statute to which our attention is directed by the learned counsel for appellant.

IV. The statute relied upon is section 6944, Bevised Statutes 1909, and in substance and as far as material provides that a policy made payable to the wife of the insured “shall inure to her separate benefit, independently of the creditors, executors and administrators of the husband.” The design of this statute was to affect the quality of the estate given to the wife by virtue of her being a béneficiary in the policy and to make whatever should come to her thereunder, a part of her separate estate and exempt from the claims of the creditors of her deceased husband. It was not the‘design of the statute to disable the husband in the making of his contract, from entering into an agreement which would render the interest of his wife, as beneficiary, wholly contingent upon the non-exercise of such powers as were reserved to the insured under the conventional and statutory terms of the present policy. The statute did not intend nor provide, nor could it be rationally construed, that the husband, should not have full liberty to contract with reference to the interest which he might desire to give to his wife as beneficiary in a policy upon, his life. It only provides that whatever contract he does make — whether giving her an absolute or a conditional interest — shall result in making that interest, if it ever accrues to the wife, a part of her separate estate. [Clarkston v. Ins. Co., 190 Mo. App. l. c. 631, and cases cited; Hilliard v. Life Ins. Co., 117 N. W. 999; Hopkins v. Hopkins, 17 S. W. 865.]

Our conclusion is that the judgment in this case under the conceded facts is correct. It is, therefore, affirmed.

All concur.


source: Caselaw Access Project

author: RAILEY, C. PER CURIAM:

license: Public Domain

text:
    J. J. LINK, Appellant, v. MONTRAVILLE HAMLIN, and MONTRAVILLE HAMLIN Doing Business as the AMERICAN MEDICAL JOURNAL.
    Division One,
    March 12, 1917.
    1. LIBEL: Statute: Applicable to Civil Cases. The statute defining libel (See. 4818, R. S. 1909) is applicable in civil as well as in criminal cases.
    2. -: Pleading: Cause of Action. An article published in a medical journal charging that the virtue of a medical college “was sullied when an Allopath was placed on the faculty and permitted to purchase a block of its stock, and its final prostitution completed when that same Allopath secured by purchase a controlling interest;” that “this individual professed great love for Eclectic principles, was accepted into our Eclectic societies, and in every way inveigled himself into the good graces of Eclectics, with, we believe, the direct aim of destroying” the college “as an Eclectic institution;” that “this simply goes to show that you cannot change a wolf into a sheep, even if you do clothe him in a coat of wool;” and that “hence the inevitable has happened: the flock of sheep feels the fangs of the animal which could not be hidden for long,” charged and was intended to charge that said “Allopath,” by fraud, deceit and trickery, got possession of the college and by‘false representations and actions won the confidence of Eclectics, for the purpose of destroying said college as an Eclectic school; and a petition which sets forth such article, and then by apt allegations avers that it was written and published by defendant and that the charges were intended to charge plaintiff with those things and were false and maliciously made, states a cause of action.
    3. -: Demurrer to Evidence. In passing upon a demurrer to the evidence it is the duty of the court to draw every reasonable inference from the facts proven that a jury might draw, were the case submitted to them. And where the petition states a cause of action for libel, the publication contains libelous charges and is shown to have been made by defendant, and its charges shown to be false, no demurrer to the evidence should he sustained.
    4. -: Privilege: Malice: Proof. An assumption as true in editorial comment on a publication known to be false, shows malice. Where there is substantial testimony tending to show that the publication was libelous, that it was untrue and known to be false when published, and that after it was published or along with its publication editorials relating to the same subject and assuming it to be true were also published, the communication is not privileged, but sufficient malice is shown to carry the case to the jury.

      Appeal from St. Louis City Circuit Court. — Ron. James E. Withrow, Judge.
    Reversed (with directions).

      Frank A. Habig for appellant.
    (1) It was conceded by the trial court that the article published of and concerning plaintiff by the defendant was a libel per se. Sec. 4818, R. S. 1909; Kenworthy v. Journal Co., 117 Mo'. App. 335. Words which on the face of them, when falsely published of a party, in connection with his trade or profession, which must necessarily injure him in respect thereto or which directly tend to the prejudice of such person in his trade or profession, are actionable in themselves without proof of damages.- St James v. G-aiser, 125 Mo. 527; McGinnis v. Knapp & Co., 109" Mo. 143; Ukman v. Daily Record Co., 189 Mo. 392; Price v. Whitley, 50 Mo. 439; State v. Powell, 66 Mo. App. 613; Finley v. Steele, 159 Mo. 304; Farley v. Pub. Co., 113 Mo. App. 224; Sullivan v. Commission Co., 152 Mo. 268; Cook v. Globe, 227 Mo. 534; Cook v. Pub. Co., 241 Mo. 362; Minter .,v. Bradstreet Co., 174 Mo. 486. (2) The trial court required of plaintiff that he prove not only that the article was false, but that he also prove express malice. It was held in Cook v. Globe Ptg. Co., 227 Mo. 531, that “the falsity of all defamatory, words is presumed in plaintiff’s favor, and he need give no evidence to show them false.” See also Nelson v. Wallace, 48 Mo. App. 198; Minter v. Bradstreet Co., 174 Mo. 486. The ease of Cook v. Pub. Co., 241 Mo. 362, holds that “proof of the falsity of the facts alone is all that a plaintiff is required to prove and that it is not necessary in addition that the plaintiff should also prove that the publication was inspired by actual malice.” See, also Cornelius v. Cornelius, 233 Mo. 35. (3) Upon proof of the falsity of the words published, malice is presumed.' Academy v. Gaiser, 125 Mo. 527; Mitchell v. Bradstreet Co., 116 Mo. 226.

      Roy Hamlin and Hamlin, Collins & Hamlin for respondents.
    (1) The article was a qualified privileged communication, and being so, the court did right in directing a verdict for the defendants and in support of both propositions we submit that the case of Holmes v. Royal Fraternal Union, 222 Mo. 556, is ample authority, together with the cases therein cited. See also Finley v. Steele, 159 Mo. 299. The trial court after having heard the evidence offered by the plaintiff found that plaintiff had failed to prove actual or express malice, and found rightly that the article was published by the defendants, honestly believing that the statements made therein were true, or, that they had reasonable cause to believe they were true, and with no motive of malice. In doing so' it followed the rule in such cases in this State. Cornelius v. Cornelius, 233 Mo. 1; Cook v. Pub. Co., 241 Mo. 326. In such cases the onus of proving express malice and falsity rests upon the plaintiff. Cook v. Pub. Co., supra. (2) The petition does not state a •cause of action. The article published was not libelous per se, and the language used in same should not be construed as libelous. The language when considered in its ordinary sense simply says that the owner, by reason of his authority, converted the American Medical College into an Allopathic from an Eclectic School, thereby as considered from an Eclectic standpoint, a step backward or retrograding. Diener v. Chronicle Pub. Co., 230 Mo. 625; Baldwin v. Walser, 41 Mo. App. 243; Spurlock v. Investment Co., 59 Mo. App. 225.
   RAILEY, C.

— On August 20, 1910, plaintiff commenced an action in the St. Louis Circuit Court, against said defendants, to recover damages arising out of the publication of a certain alleged libelous article in the American Medical Journal.

The amended petition alleges that defendant Hamlin was publishing the above monthly journal, in St. Louis, Missouri; that it has a large circulation in said city, throughout the State of Missouri, and many other States, as well as the cities therein; that the July number for 1910 was largely circulated as above stated. He alleges that there was printed and published in the July issue aforesaid, in volume 38, number 7, signed by Stephens, defendant herein, the following defamatory and libelous article, of, and concerning plaintiff, to-wit:

“The Rape of the American Medical College.
“We want to caution all our Eclectic friends, that the American Medical College has been raped; that it has been prostituted to allopathy and therefore is no more an eclectic institution. ' Early in June of this year it was declared, by its OWNER, a regular college and so published in the daily papers.
‘ ‘ The virtue of the college was sullied nine years ago when an allopath was placed on the faculty and permitted to purchase a block of stock, and-its final prostitution completed when that same allopath secured, by purchase, a controlling interest. The act of harlotry was finally accomplished in June, 1910. This individual professed great love for Eclectic Principles; was accepted into our Eclectic Societies and in every way inveigled himself into the good graces of Eclectics with, we believe, the direct aim of destroying the American as an Eclectic institution. This simply goes to show that you cannot change a wolf into a sheep, even if you do clothe him in a coat of wool. Hence the inevitable has happened. The flock of sheep feels the fangs of the animal which could not be hidden for long. So we warn you, our friends, to look to it that no Eclectic student enters the poisoned atmosphere of this institution.' The American has no standing, having been condemned' by the American Medical Association as incompetent, and it is no longer a member of thé Confederation of Eclectic Colleges.' Its diplomas were refused recognition by the Illinois board at the close of the last session because of meager equipment. Prom this it is evident its graduates can have no standing professionally. The institution has no future and its death is only deferred for a very short time. In the very nature of things it must draw its students from the allopathic ranks, and we ask in all seriousness, what fool would jeopardize Ms future professional career by graduating from a one-man allopathic college without a single feature to recommend it? What Mnd of a young man would he be who would pass the Washington University and the St. Louis University by as allopathic institutions, and attend an insignificant college standing in their shadow and but poorly manned with instructors ? God pity the people who employ such a man, a man whose lack of judgment would induce him to take such a course. Decidedly, the place for such a man is in the insane asylum. There is no excuse of a small college at the present time except as an Eclectic or Homeopathic institution.
“We want our readers to know that every Eclectic who held a chair in the faculty of the American while it yet retained a semblance of Eclecticism, quit the institution at once when the rape took place, for none of them was a party to the act of prostitution. These are how banded together and are all working harmoniously to establish a new Eclectic Medical College in St. Louis, ready for instruction in September, where Eclecticism will be taught and where its principles will remain forever supreme. And the first scoundrel who shows’his flat head will receive a rap that will deter him from committing an offense such as has been done the American. Professional sneaks will be dealt with according to their deserts henceforth.
“We also want to warn you that a concerted movement is going forward all along the line to destroy us as a school (of which we believe the course of the American Medical College forms a part) and you who’ think you are loved to death by this tribe of bigoted rascals, know, that they only lick you preparatory to making a meal of you. Be warned in time for the American Medical Association, backed by the moneyed interests of this country are doing all in their power to crush everybody but themselves, as is shown by the many obnoxious bills introduced into Congress the past session. Therefore, look to your own interests and keep clear of all connections with those who would destroy you without compunction, for ‘they come as a thief in the night’ to rob you of your inheritance.
“We are fighting the same old fight our fathers fought, and the battle ahead of us is as great as they ever fought because, while they were ever awake to the dangers that lurked on every hand, we have been lured into a dangerous lethargy by blandishments and ostensible good will.
“We would be glad to have a letter, good and strong, from every Eclectic who may read this as a token of alertness and in evidencé of good will. Remember we are working for you as for ourselves, and our, fight' is your fight. Let us then stand shoulder to shoulder against the common enemy; shoulder to shoulder for freedom in medical practice; and if we thus stand together, there is no power on earth, nor in hell where all oppression springs from, that can destroy us. If we do not, the sun of Eclecticism will forever set, and that in this generation.
“Let us work then as brothers in a good cause and give of our time and money when necessary and all will be well.
“Stephens.”

Plaintiff alleges that he is the “owner and allopath” referred to in said article; that defendants meant and intended to charge therein, and its readers understood he was being charged with having, by fraud, deceit and trickery, gotten possession of said college, and by false and fraudulent representations, statements, and actions won the confidence of defendants and others, and especially stockholders and members of said American Medical College, with the direct aim and for the purpose of getting possession of said college and destroying the same as an eclectic institution; and that plaintiff was a wolf in sheep’s clothes, ready to destroy, and a person to be avoided; that he was a “flat headed scoundrel;” that he was a professional sneak;” that he was one of the “tribe of bigoted rascals;” that they “only lick you preparatory to making a meal of you;” meaning and inferring that plaintiff would practice deceit and trickery to gain your confidence, and then destroy a, person of their rights; and that he was meant to represent ‘ ‘ a thief in the night, ’ ’ to rob and steal from eclectics and others their rights. The petition then denies the truth of said allegations, insinuations and innuendoes. It is averred that said charges were wilfully, wantonly and maliciously made by defendants concerning plaintiff; that they were false and known to be so, when published by defendants; that they were designed to deprive plaintiff of public confidence, and to expose him to public hatred, contempt and ridicule, and to deprive him of the social intercourse of the physicians and medical men, as well, as all other persons, where said journal circulated, and thereby injure plaintiff in his business and profession of physician and surgeon, and as president of said American Medical College, president of the American Hospital and president of the Association Hospital, all of the city of St. Louis, Missouri.

Plaintiff sued for $5000 as actual and $10,000 as punitive damages.

On February 26, 1913, plaintiff dismissed as to Stephens.

Defendant Hamlin filed an amended answer to the amended petition, and admitted the truth of certain facts as follows: That defendant is the owner of the American Medical Journal, published in St. Louis, the same having a circulation in said city, the State of Missouri, as well as in many other cities and states throughout the United States; that in the July issue of the American Medical Journal there appeared an article signed “Stephens” substantially in manner and form, as set forth in petition. He admits that J. J. Link is the owner and allopath referred to in said article. He denies every other allegation in the petition.

The answer avers that plaintiff, a graduate of the regular school of medicine, on his application, joined several societies of Eclecticism; that he obtained fortyeiaht shares of stock, out of one thousand, in the American Medical College; that he continued thereafter a member of the faculty of said college, and until 1910, “continued to teach the principles of Eclectic medicine and surgery therein;”. tbat be acquired a majority of tbe stock of said college, and in June, 19Í0, had tbe following resolution passed by tbe board of directors of said college, to-wit:

“"Whereas, sectarianism is not in accord with tbe spirit of tbe times, be it resolved tbat tbe American Medical College is and shall be a Regular School of Medicine.”

There is but little, if any, controversy over tbe foregoing facts.

Tbe answer further alleges, tbat tbe St. Louis GrlobeDemocrat, on its first page, in large letter-beads, contained tbe following:

“Eclectic School Shifts. Tbe American Medical College Converted Into an Allopathic Institution.” Tbat a picture of Dr. James M. Ball appeared on tbe same page of said paper, and was referred to as follows:
“Dean of the School tbat joins Allopathic ranks.”

■ Defendant alleges tbat soon after said college was organized, be became tbe dean thereof, and continued for many years to teach therein; tbat after plaintiff secured control of a majority of tbe stock of said college and was' then able to dictate its policy, be became convinced tbat “plaintiff was not at heart an Eclectic, and be, therefore, resigned bis position as dean of said college.”

He alleges, that on account of said change in the college and the publication aforesaid, it would be readily inferred that tbe change was made because the college board believed they bad been in error in teaching tbe principles of Eclecticism,' and that the change was made to correct this error; that, inspired by a desire to publish the truth, on account of the matters aforesaid, be caused the publication of the article set out in tbe petition, in order to warn the friends of Eclecticism that said change was brought about solely on account of plaintiff having acquired a majority of the stock of said college. He denies in the answer, that said article was intended to charge tbat plaintiff was a “wolf in sheep’s clothing,” or that be was a “flat headed scoundrel,” or “professional sneak,” or tbat be w;as one of a tribe of “bigoted rascals” that lick you only preparatory to making a meal of you, as charged in plaintiff’s petition. He alleges that said article did not refer to “plaintiff’s professional or social standing,” or was so understood by the readers of said article, but that said publication, “in all its intent and innuendo was directed wholly to his acts and conduct in connection with the said American Medical College, and the fact that he had, by professing to be in love with Eclectic principles, by joining the societies of Eclectics, by accepting a.position on the faculty of an old and well-known Eclectic College, and teaching said principles of Eclecticism therein, succeeding in inveigling himself into the good graces of Eclectics, whereby he was permitted to purchase stock in said college, and finally to acquire the entire control thereof, and to the fact that after he had acquired the control of said college, he converted it into a regular school, and advertised the same to. the world at large in such manner that physicians and surgeons generally were wont to believe that said old and renowned Eclectic college had shifted to Allopathy (i. e., the regular school) because Sectarianism (i. e., Eclecticism) was no longer in accord with the spirit of the times.”

The answer further alleges, that defendant was informed by plaintiff’s counsel that his client felt that said artice reflected on his integrity and character and demanded a retraction; that defendant then published in the August issue of the American Medical Journal, the following:

“Ours is an Eclectic Journal; it fights the battles of Eclecticism, and will continue its course in the future as in the past, as the editor’s judgment dictates. . . . We were convinced four years ago what Link’s idea was as to the future of the college. In all that we have said, we have scrupulously avoided saying anything derogatory to Dr. Link’s personal character, or his professional ability, but we have only referred to his acts as they relate to the American Medical College.”

Defendant’s answer alleges that in said August issue of the Journal he referred to the article complained of, published in the July issue, and said he did not intend to cast any aspersion on the personal character or professional ability of any man, but was referring to the change in said college as aforesaid.

The concluding paragraph of said answer alleges that the article complained of, was not published wantonly or from malice toward the plaintiff, but solely in the interest of truth and justice; that the same was a privileged publication in the interests of truth and justice; that ‘ ‘ any and all language therein contained, which, by its form, meaning or innuendo, charges that.the plaintiff by deceitfully representing that he was an Eclectic inveigled himself into the good graces of Eclectics, and thereby was permitted to acquire stock in said college/if any, is true, and this defendant honestly believed as herein stated that, the direct aim of the plaintiff in so doing was to destroy the American Medical College as an Eclectic institution, and that the plaintiff is not entitled to the relief prayed for in his petition,” etc.

The reply admits the publication of the libelous article complained of; that plaintiff, J. J. Link, is the person referred to in said publication; that the American Medical College, is a corporation, duly organized under the laws of Missouri; that at one time said college taught the Eclectic system of medicine; admits that the system of teaching was changed in June, 1910; that he was a graduate of the regular school of medicine; that he was requested by the propr officers of said college to act, and was appointed to lecture on operative surgery in said college; that he subsequently joined the various Eclectic medical societies; admits that he believed in certain principles of the so-called Eclecticism; that he purchased capital stock of said college, and finally did acquire a majority of said stock, but denies that by any false representation, or by any form of trickery, or deceit, or otherwise, than by fair and honest bargain, he obtained said stock of said college; and further admits that proper notice was given to the public through the press and otherwise, of the change of the policy of the said school in its teaching. After setting out certain correspondence and publications referred to, the reply denied all the other allegations of said answer. It set out fully the facts which made it necessary to change said college from an Eclectic to the regular school, and as tending to show that defendant’s allegations in respect to said matter were untrue.

On February 28, 1913, a jury returned a verdict in favor of plaintiff for $1,500 actual and $880 punitive damages. Defendant’s motion for a new trial was sustained, and the cause tried anew on January 7, 1914.

Defendant’s counsel objected to the introduction of any evidence at the trial of this case, because the petition did not state.a cause of action, and said:

“There is but one substantial statement of fact made in the article, viz-. ‘This individual’ (referring to the plaintiff) ‘professed great love for Eclectic principles; was accepted into our Eclectic societies and in every way inveigled himself into the good graces of Eclectics with, we believe, the direct aim of destroying the American as an Eclectic institution,’ . . . and the only thing charged against the plaintiff is that he fooled them into thinking he was ah Eclectic when he was an Allopath that got into their society and stole their college.”

It was conceded by defendant, that plaintiff, J. J. Link, was employed regularly to lecture at sáid college; that the latter was incorporated under the laws of Missouri, with a capital stock of $10,000, divided into a thous- and shares at ten dollars each; that plaintiff was connected with the college in June, 1910, as professor of clinical surgery, and that he was also treasurer of said college; that at a meeting of the stockholders on June 6, 1910, the course of teaching in said college was changed from the Eclectic to the regular or Allopathic school.

Plaintiff was sworn as a witness, and testified that he resided in St. Louis, Missouri; that he was a surgeon and graduate of Northwestern University Medical School, which teaches the regular or Allopathic school of medicine; that he was an Allopath and graduated in 1890; that he had been connected with the American Medical College since 1902; that it was known' as an Eclectic school; that he became connected with it at the suggestion of Dr. C. P. Clayburg,. who became dean of the school after that. Plaintiff identified and read in evidence, the article complained of, entitled, “The Rape of the American ¡Medical College.” He read in evidence an article published in the same edition of defendant’s Medical Journal, which sets out the heading under which the college was advertised after the above change. Among other things, it contains the following:

“More than four years ago a certain allopath, named J. J. Link, conceived the idea of wresting the control of the college from our hands, and through the connivance of certain traitors to our cause, he succeeded.

He read in evidence an article published in defendant’s journal, of date June 10, 1910, headed, “Link had a Meeting,” in which the meeting changing the teaching of the college was criticised and the appellant subjected to public ridicule. He also read in evidence another article published in defendant’s Journal, of the same issue as the above, which reads as follows:

“Will the graduates of the Old American Medical College be satisfied to let their Alma Mater die? or, what is worse than death, pass into the hands of this Allopath, who practiced every known deception to accomplish his design — even to joining all our societies and declaring himself as good an Eclectic as the editor of this Journal? . . . Four years ago this month we sounded the alarm. When J. J. Link managed to get control of a majority of the stock of the American'Medical College we promptly resigned both the deanship and our chair in the college, stating that we could not, nor would not submit to the dictation of an Allopath. ...
“We are not a prophet, nor the son “of a prophet, but after an intimate association with this man Link for four years we were in a position to know our man; and it now developes that we did know him.” (Italics are ours).

Thereupon, the court ruled that plaintiff would be required, by his first witness, to prove not only the falsity of the article complained of, but also that it was inspired by express malice.

Plaintiff testified that he bought the stock of said college from other members of the faculty; that he used no deception of any kind in acquiring same; that he did not, iviih any false design, attempt in any way to destroy said college* as an Eclectic school; that he did not state to any member of the college that he was an Eclectic; that he never, at any time, stated to any of them that he was not a member of the regular school; that he never, at any time, stated to anybody that he, at any time, changed his system of thought. Plaintiff further testified that, at date of trial, he was professor of surgery and head of the department of the National University, which was then the American Medical College; that he was also on the board of the University.

Upon cross-examination, plaintiff testified that he was a graduate of the Northwestern Medical School, which is known as a regular or Allopathic school; that he had always practiced medicine as such; that prior to his connection with the American Medical College he was professor of physiology, chemistry and hygiene in the regular school of physicians and surgeons. He testified, that- “Eclecticism” means, “Choose that idhich is the best;” that the regulars always practiced it; that he had always practiced it and meant to practice it; that the American was known as an Eclectic school; that he had always approved of Eclecticism in its full sense; that it was all right and that they had always practiced Eclecticism when they chose it, being the best for the patient. He testified that Doctor Hamlin ashed him to buy the stock; that there was no difference between the schools in the teaching of surgery; that he talked with defendant before coming into the college, but did not mention his ideas as to Eclecticism; that he did not speak of Eclecticism to any one; that Dr. Younkin asked him to come in and take his chair in surgery and that Dr. Hamlin ashed him to come in as teacher of anatomy; thdt these doctors were members of the faculty and on the board of trustees; that he purchased some stock in 1903, and that when he came to the college, the members of the faculty hnew he had graduated and that his name had been in the directory as a regular practitioner; that he had joined the Eclectic society about six months or.a year after he became connected with the college; that while connected with the college he wrote papers on surgery before Eclectic societies; that he belonged to the St. Louis Medical Association, which was the regular school; that he did not retire from said association when he joined the Eclectics; that he belonged to both societies at the same time, and that a good many other doctors do the same; that a good many doctors of the Eclectic society had asked him if he belonged to the regular or Allopathic society, at the time he joined the American College, and he told them he did; that Dr. Clayburg and Dr. Hamlin had also ashed him; that there was no secret about it; that Dr. Hamlin had a directory in the library which stated that plaintiff belonged to both societies; that at the time he joined the societies, it was not contrary to the ethics of the Eclectic society to belong to both; but it is now contrary to the ethics of the Allopathic society to join both. He testified that Dr. Hamlin owned 380 shares of stock; that the only purpose he (plaintiff) had in buying the stock was because Doctors Clayburg, Helbing and Hamlin urged him to buy it; that he was heartily in sympathy with Eclectic principles and that he never discussed the question of his loyalty to Eclectic principles with anybody. Plaintiff testified that he offered to sell his stock to members of the Eclectic societies and college, at what it cost him and without interest; that he offered to sell on time and could find no purchasers; that he offered to sell his stock to Eclectics at par, which was less than it cost him.

Plaintiff was cross-examined as to an editorial in the “Medical Harbinger” written by Dr. Tucker, in which it was recited that Doctors Hamlin and March, editors of the American Medical Journal and Medical Arena, put forth an effort at Kansas City to combine said journals and make it the organ' of Eclecticism, and that their proposition was voted down. Plaintiff further testified that some of the Eclectics were not agreeable; that there was factional trouble among them; that he tried to bring them together; that the Ecleptics did not support Dr. Younkin in the matter; that he also learned there was a movement on foot to establish a new Eclectic college in St. Louis; that he knew if one could not pay, two could not; that he called the representative Eclectics together at a meeting and offered them the whole college at their own terms; that they refused said offer and gave no reason therefor.

Dr. Snow corroborated plaintiff in respect to offering his stock at par and giving the purchasers their own terms. This was in May, 1910, before the change in June of same year.

Plaintiff testified as to the worry and depression said articles caused him, and likewise testified as to his loss of business, etc.

At the conclusion of the above testimony, the court, during the argument on a demurrer to the evidence, stated that in his opinion no malice was shown and thereupon gave a peremptory instruction to the jury to return a verdict in favor of defendant. The plaintiff took an involuntary nonsuit, with leave, etc. Appellant in due time filed his motion to set aside said nonsuit and for a new trial, which was overruled, and the cause was duly appealed by him to this court.

It is insisted by respondent that plaintiff’s petition fails to state facts sufficient to constitute a cause of action. He likewise contends that plaintiff’s evidence was insufficient to warrant the trial court in submitting the case to the jury. The lower court overruled the first contention, but at the conclusion of plaintiff’s case directed a verdict in behalf of defendant.

In order to pass upon both questions intelligently, we have substantially set out the pleadings; the article complained of in petition, and the evidence introduced in behalf of plaintiff.

I. Does the amended petition state a good cause of action against defendant? Section 4818, Revised Statutes 1909, defining libel, reads as follows:

“A libel is the malicious defamation of a person made public by any printing, writing, sign, picture, representation or effigy tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse.”

In passing upon the sufficiency of the petition it becomes our duty to consider the same on the theory that all the facts well pleaded therein, are to be taken as true. Among other things the article complained of states that:

e < ppg virtue of the college was sullied nine years ago when an allopath was placed on the faculty and permitted to purchase a block of stock, and its final prostitution completed when that same allopath secured by purchase a controlling interest. The act of harlotry was finally accomplished in June, 1910. This individual professed great love for Eclectic Principles; was accepted into our Eclectic Societies and in every way inveigled himself into the good graces of Eclectics with, we believe, the direct aim of destroying the American as an Eclectic institution. This simply goes to show that you cannot change a wolf into a sheep, even if you do clothe him in a coat of wool. Hence the inevitable has happened. The flock of sheep feels the fangs of the animal which could not be hidden for long.” (Italics are ours).

The plain import of the above language was to charge — and intended by defendant to charge — that plaintiff, by fraud, deceit and trickery, got possession of the American Medical College and by false and fraudulent representations, statements and actions, won the confidence of defendant and others, and especially with the direct aim, and for the purpose of obtaining posses-. sion- of said American Medical College, and destroying the same as an Eclectic institution. It is further charged by innuendo, that plaintiff, in accomplishing said alleged purpose, was a wolf and animal. It is averred in the petition that the readers. of said Journal construed said language as above indicated; that the statements aforesaid were false, and known by defendant to' be false when made; that they were wantonly, wilfully and maliciously made to injure plaintiff, etc.

We are of the opinion that a cause of action is stated; that tbe allegations of the petition bring the case within the purview of section 4818, Revised Statutes 1909, supra, and that said section is applicable in civil as well as criminal cases. [Sotham v. Telegram Co., 239 Mo. l. c. 619; Wright v. Great Northern Ry. Co., 186 S. W. l. c. (Mo. App.) 1088.]

II. Was the trial court justified in directing a verdict for defendant? In passing upon the demurrer to the evidence, it devolves upon us to draw every reasonable inference from the facts proven, which a jury might have drawn, had the case been submitted for their consideration. The testimony shows that the charges made in the publication under consideration, in so far as they relate to any alleged improper conduct upon the part of plaintiff, are shown to be false. The jury would have been justified under the evidence, in finding that plaintiff had been guilty of no impropriety ■in respect to all of his dealings relating to the American Medical Society. We rule that the evidence was sufficient to warrant the jury in finding that the matters contained in said publication constituted a libel against appellant. The evidence heretofore set out, as well as other testimony not mentioned, was clearly sufficient, in our opinion, to warrant the jury in finding, not only that defendant had libeled plaintiff in the publication of said article, but that the same, in connection with the subsequent utterances of defendant, indicated malice upon his part against the plaintiff in the publication of said article.

The court below, therefore, committed reversible error in directing a verdict in behalf of defendant.

III. Counsel for respondent contend that the article complained of was a privileged publication; and that plaintiff’s case should fail, because he failed to prove malice. Cornelius v. Cornelius, 233 Mo. 1, and Cook v. Publishing Co., 241 Mo. 326, l. c. 359, are cited support of above contention. While defendant claims in his answer that he represented Eclectics in the publication, of said article, and that by reason thereof it was privileged, yet no proof was offered in support of this contention. On the contrary, the only testimony in the case relating to this subject, is found in the letter of Dr. C. A. Tucker to the editor of the Medical Harbinger, read in evidence by defendant, and in which he says:

“Do you remember anything about an effort put forth at our state meeting in Kansas City last June by Drs. Hamlin and March, editors of the American Medical Journal and Medical Arena, to combine the Eclectic Journals of our State and make it the organ of Eclecticism of our state society?' Do you, who were there, remember how we voted that proposition down?”

In the very able and carefully considered opinion of Judge Kennish, in Cook v. Publishing Co., 241 Mo. l. c. 362-3, relied on by respondent, a marked distinction was drawn between privileged communications and privileged comment, as follows:

“It will be noted that under the rule of the authorities last cited the defense of privileged comment fails upon proof of the falsity of the facts alone, and it is not necessary that the plaintiff should prove in addition thereto that the publication was inspired by actual malice, as in the case of a defense of privileged communication. It should be observed further that under all the rules stated, proof of the falsity of the facts .and knowledge of such falsity is proof of actual malice.
“We think there is good reason for recognizing the distinction thus made between the law applicable to the defense of privileged communications and that of privileged comment, making the privilege broader in the former than in the latter. In the former the communication is usually made under a sense of duty and to one person or a limited number of persons. The privilege of comment, on the other hand, while of the highest importance to the public welfare, is not made under a sense of duty, but is purely voluntary, and when the unlimited extent of the publication and the consequent injury to the complainant is considered, it would, in our opinion, be a most dangerous doctrine to require the plaintiff, in order to make a prima-facie case, to prove not only that the facts were false, but also that the defendant was actuated by express malice.
“We think the rule to be deduced from the authorities and in accord with the better reason, is that when a defense of privileged comment on a matter of public'interest is- presented by the issues, the plaintiff may overcome the privilege pleaded either by proof that the publication was inspired by actual malice, or that the facts published and commented upon were false.”

Plaintiff’s testimony is uncontradicted and in clear language refutes the truth of the libelous matter complained of in said publication. In Cornelius v. Cornelius, 233 Mo. l. c. 31, Judge Lamm, quotes with approval from the opinion of Judge Paxson, in Briggs v. Garrett, 111 Pa. St. l. c. 414, as follows:

“A lie is never privileged. It always has malice coiled up within it. When a man coins and utters a lie, or when be repeats it knowing it to be false, .the law implies malice, and be cannot shelter himself behind the doctrine of privileged communications.”

There is no testimony in the record which warranted the court in disposing of plaintiff’s case as a matter of law. The jury bad before them substantial evidence tending to show .that said article was libelous; that it was untrue and -known to be so when published; and that the publication of the same with the supplemental and repeated comments of defendant relating to the same subject, were inspired by malice.

IV. The question as to what elements of damage may be considered, if plaintiff is entitled to recover under the pleadings, need not be considered now^ ag |pe cage wpj have to be re-tried, and this question may not arise again.

We accordingly reverse the case, with directions to the trial court to set aside its judgment herein and to proceed with the trial of the case in conformity to the views here expressed.

Brown, C., concurs.

PER CURIAM:

— The foregoing opinion of Railey, C., is hereby adopted as tlie opinion of the court.

All the judge concurs.


author: WOODSON, J. GRAVES, C. J.

text:
    CHARLES H. TURPIN v. ANTHONY W. POWERS, Appellant.
    In Banc,
    March 13, 1917.
    1. ELECTIONS: Voting: Two Names for Same Office. The statute (Sec. 5909, R. S. 1909) specifically provides that if a ballot contains a greater number of names for any office than the number of persons required to fill such office, it shall be Considered as fraudulent as to the whole number of names designated to fill such office. And . where two constables for the same district were to be elected, the writing by 38 voters of their own names on or just under th'e dotted line below the printed names of the two nominated candidates for that office, made those ballots void for all three.
    2. -: -: -: Writing Voter’s Own Name on Ballot. A voter has a right to vote for himself, and if he writes his name under the caption for an office, and thereby more unscratched names remain on the ballot than there are persons to be elected to that office, that ballot cannot be counted for himself or any candidate for that office.
    3. -: -: Counting Void Ballots. If contestant can be given the office only by counting illegal ballots for him, contestee should be awarded the office.
    Appeal from St. Louis City Circuit Court. — Hon. Leo. 8. Bassieur, Judge.
    Reversed,

      Holland, Rutledge & Lashly, Ernest A. Green and Thomas A. Dwyer for appellant.
    (1) The eirenit court of the city of St. Louis has no jurisdiction to try a contest involving the office of constable in said city, (a) Contestant undertook to prosecute his election contest under authority of Sec. 5924, E. S. 1909, but that section enumerates and specifies eo nomine the offices it was intended to cover, and the office ■of constable is excluded. Taffe v. Eyan, 25 Mo. App. 563. (b) Contestant then urged that Sec. 7633, E. S. 1909, conferred power and jurisdiction upon the circuit court to try this class of cases. But this section is void. It is in violation of section 53 of article 4 of the Constitution, and particularly sub-sections 2, 15, 17 and 32 thereof. It is a special and local law applicable in terms to the city -of St. Louis alone, (c) Section 7633 is not responsive to the title of the article in which it appears. Art. 4, sec. 28, Constitution; Williams v. Eailroad, 233 Mo. 666; State v. Coffee Co., 171 Mo. 635; State ex rel. v. Jackson County, 102 Mo. 537; Kansas City v. Payne, 71 Mo. 162; State v. Distilling Co., 237 Mo. 106; Laws 1879, p. 41. (d) A special or local law is defined to be a law which in terms is applicable to a particular political subdivision, and the term has especial application where the same subject-matter could be covered by legislation of general scope. Dunne v. Eailroad, 131 Mo. 1; Henderson v. Koenig, 168 Mo. 374; State ex rel. v. Messerly, 198 Mo. 351; State ex rel. v. Williams, 232 Mo. 56. (2) An election contest as well as every step in- the procedure thereof, is purely statutory, and no power inheres in any court in this State to proceed with such an action; nor can any court derive general jurisdiction or power to take the necessary steps or procedure in such an action, excepting it be by and through express authority of a statute. State ex rel. v. Spencer, 166 Mo. 285; State ex rel. v. Hough, 193 Mo. 615; Ewing v. Francis, 87 Mo. 487; Kehr v. Columbia, 136 Mo. App. 322; Art. 8, sec. 9, Constitution. (3) The record shows that the court counted for contestant thirty-eight ballots which contained a greater number of names beneath the caption “For Constable” than the number of persons required to fill that office. This was error, and those ballots should be disallowed respondent. Sec. ,5909, R. S. 1909; Clark v. Robinson, 88 111. 500; Blankenship v. Israel, 132 111. 514; People v. Loomis, 8 Wend. 396;' State v. Griffey, 5 Neb. 161; McCrary on Elections, sec. 533. (a) This is true whether such name appear on the poll book as the name of the voter who cast the ballot or not. 15 Cye. 358. (b) Under the law and the order of recount in this case, the Board of Election Commissioners had no power or authority to ascertain whether the names so written upon the face of the ballots and under the caption “Constable” were the names of the voters. The power to compare ballots and poll books in such manner as to destroy the secrecy thereof is limited and restricted to instances of specific allegations of fraud. Gass v. Evans, 244 Mo. 338. There is no allegation of fraud with respect to voters’ names on ballots in this case, (c) It is immaterial whether these names written upon the face of the ballots under the caption “Constable” are the names of the voters or not;, a man has power to vote for himself. Bowers v. Smith, 111 Mo. 45. (d) Nor should the testimony of such alleged voter be received at the trial with respect to any mental reservation or secret intention which he entertained at the time he wrote his name under the caption “Constable.” The ballot speaks for itself, and shows upon its face that the voter wrote in a name under the caption of the office in contest, and this act constitutes a vote for that office. Pennington v. Hare, 60 Minn. 146.

      George B. Webster for respondent.
    (1) The circuit court has jurisdiction of a contest for the office of constable in the city of St. Louis. R. S. 1909, sec. 7633; R. S. 1909, sec. 2757; Hehl v. Guión, 155 Mo. 76. Section 7633 is not unconstitutional as being a local or special law where a general law could be made applicable. Laws 1879, p. 41; Constitution, art. 9, secs. 23. 24, and art. 6, sec. 27; State ex rel. v. Field, 119 Mo. 611; State ex rel. v. Yancy, 123 Mo. 391; State ex rel. v. Speed, 183 Mo. 186; State ex rel. V. Etchman, 189 Mo. 648; State ex rel. v. Fort, 210 Mo. 532. (2) The ballots cast for the respondent, on which the electors casting them had written their names, were properly counted for him. Where the name written on the ballot is that of the voter, it should be counted. Lankford v. Gebhart, 130 Mo. 621; Hanseom v. State, 10 Tex. Civ. App. 638. The Board of Election Commissioners had the right to discover whether or not the names written on these thirty-seven ballots were the names of the persons who cast them and to certify the fact to the circuit court. Constitution, art. 8, sec. 3; R. S. 1909, sec. 5939; Gantt v. Brown, 238 Mo. 575. The Spencer case, 164 Mo. 23, and the Montgomery case, 181 Mo. 5, are overruled. Gantt v. Brown, 238 Mo. 571. The testimony of witnesses that they cast these ballots and wrote their names on them was properly received. A voter may waive his privilege aid testify how he voted or marked his ballot. McCrary, Elections, sec.- 492; Lankford v. Gebhart, 130 Mo. 621.
   WOODSON, J.

— This suit was begun in the circuit court of the city of St. Louis by the plaintiff against the defendant to contest the election of the latter to the office of constable in the Fourth District of said city. The judgment below was' for the plaintiff and the defendant appealed to this court.

At the November election in 1914, Charles H. Turpin, the plaintiff, and Floyd E. Bush were the Republican candidates and A. W. Powers and Lawrence Daly were the Democratic candidates for that office, this being one of the districts in which there are two justices and two constables to be elected. Upon the face of the returns Bush and Powers were elected. In due time Turpin brought his contest against Powers. On the contestant’s motion an order was made by the court on the Board of Election Commissioners of the city of St. Louis to open the ballot boxes and recount the ballots. In pursuance of the order of recount, the board prepared and filed in the circuit court a list of the votes, with the numbers thereon, in each precinct in the district, showing for whom such votes were cast, as well as a tabulated statement of the result. This also showed the plaintiff was duly elected to the office mentioned. When the case came on to be heard in the circuit court each ballot claimed by either party was taken up and considered, the court heard such testimony as was offered, and finally rendered a judgment holding the plaintiff had received the'majority of lawful ballots cast in the district and that he was lawfully elected to the office. The judgment followed the usual form and required the contestee to surrender the office, together with the records thereof.

I. Counsel for plaintiff insists that the judgment of the circuit court should be affirmed because the abstract of the record does not conform to the rules of this court. After a careful examination of the abstract, in connection with the -stipulations made between counsel and the documents filed in pursuance thereof, we are satisfied that there is no merit in this insistance and it is disallowed.

II. Counsel for defendant asks this court to reverse the judgment of ouster for the reason assigned that the circuit court had no jurisdiction to hear and try the cause. This position is stated in this language:

“Respondent has undertaken to prosecute, this election contest under authority of section 5924, Revised Statutes 1909, but that section enumerates and specifies 60 nomine the offices it was intended to cover, and the office of constable is excluded.”

After a careful consideration of that statute we are satisfied that the position of counsel is correct, and ^ does n(A confer jurisdiction upon the circuit court to try a contested election case for- the office of constable; but counsel for plaintiff does not seem to question the soundness of that position, but bases the jurisdiction of the circuit court upon sections 7633 and 2757, Revised Statutes 1909. They read as follows:

“Sec. 7633. In the city of St. Lonis, the duties and services required by chapter 28, Revised Statutes of 1909, of the county clerk shall be performed by the register of said city, and those required to- be performed by the county court shall be performed by the mayor of said city, except in case of a tie or contested election, which shall be tried in "the circuit court; and, so far as applicable, said city shall be considered as a county; and likewise a district in said city shall be held to be the same as a township in said chapter.
“Sec. 2757. At the general election to be held in 1890, and at each general election every two years thereafter, the qualified voters of each township in every county in this State shall elect a constable, who shall be a resident of the township for which he is elected, and who shall hold his office for two years and until his successor be elected and qualified: Provided, that in townships that now contain or may hereafter contain a city of over one hundred thousand and less than three hundred thousand inhabitants, and which has been or may hereafter be divided into justice of the peace districts, the constabulary districts of said township shall be made to conform to and be coextensive with such justice districts; the county court shall appoint an additional constable for each of said districts, who shall, in addition to his other qualifications as herein provided, be a resident of the district for which he is appointed or elected, who shall hold his office until the next general election, at which time there shall be elected in all such townships a constable for each of said districts. The judges and clerks of election shall certify the same to the clerk of the county court, and in case of a tie or contested election, it shall be determined by that tribunal.”

In considering these statutes it should be borne in mind that when the county government of a part of St. Louis County was abolished and the city of St. Louis substituted therefor through the means of the Scheme and Charter, they were enacted as a part of the law carrying those changes into effect and prescribing what existing duties should be performed by State and city officers which were formerly performed in that territory by State and county officers. By reading the first section quoted it will be seen that the design of the Legislature in enacting the statute was, not to create new duties, but only to designate the officers whose duty it was made to perform the services which had been previously created by chapter 28, Revised Statutes 1909. That statute in express terms provides that within the city of St. Louis all of the services required to be performed by the county clerk shall be performed by the city register and those required to be done by the county court shall'be performed by the mayor of the city except in case of a tie or contested election, which shall be tried in the circuit court.

It will be observed that this statute did not provide for contesting the election of a constable or any other officer, but simply that the- trial in such cases shall be had in the circuit court. In other words, that statute does not create an action to contest the election of a constable in the city of St. Louis, but simply provides that such action (if it exists) shall be brought in the circuit court. That is too clear for argument; and if the action exists it must be found in some other statute of the State.

Nor does section 2757, before quoted, have any application to the case at bar. That section expressly limits its operation to townships having a city of over one hundred thousand and less than three hundred thousand inhabitants. That statute could only apply to St. Joseph and Kansas City and not -to the city of St. Louis, for we will take judicial notice of the fact that the latter city has a population far in excess of three hundred thousand, yea twice, if not three times, that number.

A similar question came before this court in the' case of State ex rel. v. Hopkins, 87 Mo. 519, l. c. 527. In that case the Legislature, without conferring jurisdiction upon justices of the peace to try cases enforcing tax liens in favor of the State, simply assumed they possessed such jurisdiction and enacted that “in all eases before justices of the peace where suit is brought for the enforcement of liens as above, where summons shall have been issued against any defendant,” he not having been found, then an order of publication to issue, etc. In discussing that question the court, in speaking through Norton, .T., said: “The amendment thus made does not confer any jurisdiction - upon justices of the peace, but simply provides the mode of ■ exercising a jurisdiction which the General Assembly took for granted had been conferred, but which in fact had not been conferred,” etc. The court then held the judgment void because the justice had no authority to try the cause. The same doctrine is announced in the following cases: State ex rel. v. Slover, 126 Mo. 652, l. c. 663-4; Postmaster General v. Early, 12 Wheat. l. c. 148, opinion by Chief Justice Marshall.

Under this view of the case as previously stated the circuit court of the city of St. Louis had no jurisdiction over the subject-matter of this suit.

III. Independent of the foregoing, I have carefully gone through this record, read the briefs and arguments of counsel and investigated the authorities cited, and as a result thereof I am clearly of the opinion that there is no merit in plaintiff’s case and that the defendant was duly elected to the said office of constable.

We have been cited to no other statute creating this character of action, or, as counsel for defendant puts it, providing any machinery for such a contest; nor have we been able to find such a statute after a careful search therefor.

For the reasons stated the judgment is reversed and the petition for the contest is dismissed.

Walker, J., concurs; Graves, C. J., concurs in separate opinion in which all concur.

GRAVES, C. J.

(concurring). — I shall not attempt +o review the statutes discussed by my learned brother Woodson, nor to give an expression to an opinion thereon.

Contestant filed a blanket notice of contest. It covers a vast number of charges, most of which were never after adverted to in the case. It should be added that this voluminous notice nowhere alleges that con‘testee, Powers, had accepted the office or was in fact claiming the same. This may be by the wayside.

Contestee’s answer was a denial of the things charged in the notice of contest. This was preceded, however, by a challenge to the jurisdiction, which challenge has been kept alive all through the ease.

Upon the first report of the Election Commissioners, contestee had a majority of 54. The circuit court directed a recount and comparison of the ballots, and upon such recount, by the report of the Election Commissioners, the contestee still had a majority of six. The circuit court after having gone through all of the ballots to which objections were made by either side finally found that .contestant Turpin had been elected by 27 votes. In a memorandum filed with his judgment he states in detail his reasons for counting and rejecting the different classes of challenged votes. If therefore it appears that he has improperly counted more than 27 votes for Turpin, the majority for Turpin is gone, and the contestee should win. There is one class of 38 ballots, which were rejected by the election judges in the court for this office, and which were counted by the learned circuit judge for contestant Turpin, which in my judgment settles this case. The learned trial judge says that on 36 of these 38 votes, the name of the voter appears on the bottom of the ballot, and that on two of them the name of the voter appears to be written on the dotted line under the name of Turpin.

A reading of the record shows a sparring match between counsel for the respective parties as to these ballots, and the finding of the learned trial judge, shows some sparring also. Counsel for contestant when offering the ballot would call it a ballot with the name of the voter written on the bottom of it. The position of counsel for contestee was that the extra name was written under the caption “Constable” and that made three names thereunder, when the voter could not vote for but two, and that under the express terms of the statute, the votes were invalid. Their position is thus stated:

“Mr. Lashly: It is our position that the Board of. Election Commissioners has no power to refer to the poll books for the purpose of finding out whether the name written was the name of the voter or of some other person, that the order of the court for re-count expressly forbade that, that the law forbids it, that even if the Election Board should determine whether the name under the caption ‘constable’ was the name of the voter or not, and even if it should appear that it was the name of a voter, a man has a right to vote for himself, and if he writes his name under the caption for the office in contest it constitutes three votes for that contested office, and therefore under the statute the ballot cannot be counted for either party.”

This objection was carried throughout the record, as to this class of votes. The court in his findings fails to find that the last caption on the ticket was that of constable. We have before us photographs of both the Democratic and Republican tickets used in this election. Upon each, the last caption reads: “For constable, 4th District (vote for two).” This caption is near the bottom of the ticket. Below it on the Republican ticket appears the name of “Floyd E. Bush” and “Charles H. Turpin” and below each name is a dotted line. Just below the name of Charles H. Turpin, and the dotted line thereunder, is a small blank space, before the bottom or end of the paper ballot is reached. It will be noticed that Turpin’s name is the last upon the ballot. In 36 of these' 38 ballots the extra name was written below the dotted line, and in two of them on the dotted line just beneath Turpin’s name, but in all 38 the extra name was in fact under the caption on the ticket. These facts fully explain the sparring of counsel. Under these facts, if we had a ballot upon which the name of Turpin had been erased and the name of Powers had been written thereunder, although not on the exact dotted line, there would he no question that Powers would he entitled to the vote.

The question here is, does the addition of this extra name, leaving the other two unscratched, invalidate the ballot.

We think so. Section 5909, Revised Statutes 1909. reads:

“If a ballot should be found to contain a greater number of names for any office than the number of persons required to fill such office, it shall be considered as fraudulent as to the whole of the names designated to fill such office, but no further; but no ballot shall be considered fraudulent for containing a less number of names than are authorized to be inserted.”

In each of these 38 ballots appears three names under the caption of constable, when there should have been but two, and under the statute, supra, the ballots are fraudulent and should not have been counted for Turpin. Our statute, supra, is but the expression of a general rule of law. Thus in McCrary on Elections, section 533, it is said:

“It is well settled that where a limited number of persons are to be chosen to fill a given office — as, for instance, where the law provides for the election by the same constituency of two Representatives in the State Legislature — a ballot containing the name of a greater number for that office is void. It was accordingly held in People v. Loomis, 8 Wend. 396, that where the number of constables to be chosen was limited to four, ballots containing the names of five persons designated as voted for for that office cannot be canvassed, but must be rejected.

Nebraska has practically the same statute as ours, and in State ex rel. Valentine v. Griffey, 5 Neb. l. c. 166, it is said:

“Again, each one of these ballots contains the names of two persons, and as this is a greater number than is required to fill the office, it is fatal to the validity of the ballots. The act entitled ‘an act to provide a general election law,’ in section thirteen, provides that ‘whenever a ballot shall contain a greater number of names for any one office than the number of persons required to fill that office, it shall be deemed fraudulent as to the whole of the names for that office.’ ”

To like effect are, People v. Loomis, 8 Wend. 396; Clark v. Robinson, 88 Ill. 498; Blankinship v. Israel, 132 Ill. 514.

That there were but two constables to be elected for the district is clear. That there were three unscratched names under the title “For Constables, 4th District” upon each of these thirty-eight ballots there is no question. That the ballots can not be counted for either of the three, under both our statute- and the general rule is likewise clear. Rejecting these 38 votes counted for Turpin by the learned trial judge, as we think they must be rejected, Powers would be elected by eleven, votes.

The learned trial judge predicates his ruling' in counting these votes on the case of Lankford v. Gebhart, 130 Mo. 621. In that case the voters had written their names on the back of the ballots. This was the sole point ruled there. That this case is no authority here is too plain for argument. In the instant case these 38 voters had the right to write under the caption “For Constables, 4th District” the name of any person or persons that they desired to cast their ballot for at such election. This has been consistently ruled since Bowers v. Smith, 111 Mo. l. c. 52, whereat we said:

“By our Constitution general elections are held at certain fixed dates, and the right of suffrage is expressly secured to very citizen possessing the requisite qualifications. The new ballot law cannot properly be construed to abridge the right of voters to name their public servants at such elections, or to limit the range of choice (for constitutional offices) to persons nominated in the modes prescribed by it. Nominations under it entitled the nominees to places upon the official ballots, printed at public expense; but the Missouri voter is still at liberty to write on Ms ballot other names than those which may be printed there.”

Whilst he may write on other names, if he wants his ballot to be effective he must not leave under the caption a greater number than is necessary to fill the office. In the instant case each of the ballots would have been legal had the voter, when he wrote under the caption the name he did write, taken the trouble to scratch the name of. Charles H. Turpin. He did not do it, and thus left three names under the caption, when there should not have been but two.

But it is urged that the names thus written under the caption were the names of the respective voters, and that .this changes the situation. It does not change the legal situation in the least. Each voter had the right to vote for himself for constable, if he so desired. He had the right to write his own name for that office under the caption for that office, and had he scratched the name of Turpin, there would be a legal ballot, with one vote each for Bush, the other candidate with Turpin, and for the voter who wrote in his own name under that of Turpin. This is clear. That the three names on the ballot were under the caption for constable is clear from numerous photographs of ballots, in the record. These 38 votes were wrongfully counted for Turpin.

A casual examination of other contested votes impresses us that there were many more than the thirty-eight votes, supra, counted for Turpin, that were wrongfully counted for him, but we shall not go further, because these are decisive. We therefore concur in /that portion of Judge Woodson’s opinion wherein he says that there is no merit in contestant’s claim of election, and think that to end a long drawn out fight, judgment should be entered here in favor of the contestee, holding that he was legally elected to the office, and against contestant for costs-. It is so ordered.

All concur in these views.