LAMM, J.
Tort for libel. This is a companion case to one between the same parties, officially reported in 230 Missouri Report at page 613, involving another libel. Plaintiff’s original petition was held bad on general demurrer. He plead over. At a sub-, sequent term he voluntarily withdrew his first amended petition and filed a second, reading (Nota bene} the part in italics and brackets being in addition to the averments of the original petition, otherwise they were the same):
“Now comes Joseph Diener, plaintiff in the above entitled cause, and files this his second amended petition, and for cause of action states that the defendant, Star-Chronicle Publishing Company, was and is at all times hereinafter mentioned a corporation duly organized and existing under the laws of the State of .Missouri. That at the time hereinafter mentioned said defendant was the publisher, proprietor and printer of a certain daily newspaper of large circulation in and about the city of St. Louis, which said newspaper is published in the city of St. Louis, State of Missouri, and is known as the ‘St. Louis Star-Chronicle.’
“That on, to-wit, the 5th day of May, 1906, there was printed and published in said newspaper the following false, defamatory and libelous article or language of and concerning the plaintiff, to-wit:
“ ‘The Coroner’s investigation into the death of little Gertrude Copeland, who was torn to pieces by Health Comr. Bond’s automobile, held the dead child guilty of contributory negligence, and in this way released the chauffeur from legal responsibility, as far as a Coroner’s inquest can.
[422]*422“ ‘What chance on earth was there that it should have done anything else?
‘ ‘ ‘ Coroner Baron had already decided that Chauffeur Diener was in no way responsible for the killing by ordering the police to turn him out free on the night of his arrest, without a charge or a bond to hold him.
“ ‘The Coroner took this action on the pledge of the Health Commissioner that he was sure the chauffeur was in no way to blame for the awful death.
“ ‘The police acted on the written order of the Coroner.
“ ‘To hold Chauffeur Diener directly responsible for the killing now would be to hold the police department, the Health Commissioner and the Coroner responsible for the atrocious act of setting at liberty a man who had wantonly taken the life of an innocent child in direct violation of the law.
“ ‘Further, such a finding would make the chauffeur responsible for a criminal offense, for which he might be sent to the penitentiary for life, and from the consequence of which he could easily have fled while he was at liberty.
“ ‘If the Coroner had brought about such a finish to the investigation he would have been a rare man, indeed.
“ ‘Investigation of the high-handed handling of the case reveals that on the night of the tragedy the police'released the chauffeur from all responsibility on the authority of Coroner Baron; that the Coroner acted on the information of Health Commissioner Bond, and the Health Commissioner got all his, information entirely from the chauffeur, who rushed home to tell his boss that he had run over a child, but was not to blame.
“ ‘Thus, on the single and unsupported statement [423]*423of Chauffeur Diener who did the killing, the killer was released.
“ ‘To save the faces of the officials involved, the child just had to be guilty of contributory negligence.
“ ‘The Chauffeur told the Health Commissioner, the Health Commissioner told the Coroner, and the Coroner told the police, but the pretty little innocent child told nobody, because she died almost instantly.’
“Thereby meaning to charge this plaintiff with having committed a crime involving moral turpitiode, and with having willfully and wantonly taken the life of a human being.
“That at all times referred to in said publication the plaintiff u-as the chauffeur of Health Commissioner Bond, which fact the defendant well knew, and that this plaintiff ivas the chauffeur and the person to whom the defendant referred in said publication.
“Plaintiff further states that said publication was willful and malicious, and that he has been damaged thereby in the sum of twenty-five thousand dollars.
“Wherefore, plaintiff prays judgment in the sum of twenty-five thousand dollars and his costs.”
Defendant attacked the amended petition with the following motion:
“Comes defendant, Star-Chronicle Publishing Company, and moves the court that the second amended petition of the plaintiff in the above entitled cause be stricken from the files and for naught held for the following reasons:
“The matters and things stated and charged in said pleadings are not sufficient to constitute a cause of action against the defendant.
“The subject-matter contained and charged therein is in substance the same as that contained in the original petition, to which pleading the court heretofore sustained a demurrer for the reason that such [424]*424matter was not sufficient to constitute a cause of action against the defendant; and by his so-called second amended petition the plaintiff seeks simply a review of a decision of this court which has long since- become final.”
On hearing of that motion the court made the following order:
“The court having duly considered the motion to strike the second amended petition from the files heretofore filed and submitted herein, doth order that said motion be and the same is hereby sustained, because this court has previously sustained a demurrer to the original petition stating the same cause of action.”
On a day following that entry, judgment went for the defendant, narrating, inter alia, that a demurrer to the original petition was sustained, that later a motion to strike the second amended petition from the files was sustained, because the court had previously sustained a demurrer to the original petition stating the,same cause of action; and that plaintiff thereupon declines to plead further, wherefore, final judgment is entered that plaintiff take nothing and defendant go hence without day, etc.
In due time plaintiff filed his motion for new trial, saved an exception to overruling the.same, and by a bill of exceptions undertook to preserve his exception to the ruling on the demurrer to the original petition at a prior term, his exceptions to the rulings of the court sustaining defendant’s motion to strike out plaintiff’s second amended petition, and to preserve the original petition for review' here.
Thereafter, perfecting his appeal, the cause came up for review on assignments of error, viz: (1) In sustaining the demurrer to the original petition; (2) In striking the amended petition from the files.
[425]*425I. It is an accredited legal maxim that, Novelty benefits not so much by its utility, as it disturbs by its novelty. There is another that, We are never to recur to what is extraordinary, until what is ordinary fails. The wisdom of both is finely illustrated by this record. Plaintiff, refusing to stand on his original petition, on demurrer being sustained, files first and second amended petitions, and now asks us to tread hack and review the action of the court at a former term in allowing the demurrer to the original. If a bill of exceptions were necessary to. preserve a demurrer, the ruling thereon and a formal exception thereto, then there is nothing before us on that assignment. This, since a bill of exceptions was filed at a subsequent term, and the general rule is that unless leave he timely granted to file a bill (a condition not presented by this record), the exceptions at each term must be preserved by a hill at that term — they die with the term unless kept alive with a bill. But a bill of exceptions is not a sine qua non to save a demurrer. It needs no “such adventitious aid.”
In that view of it, the next question is whether the matter was not waived by filing an amended, petition? Are not the old petition, the old demurrer and the old ruling, one and all, functus officio? Now, if plaintiff had filed no amended petition, but at a subsequent term had announced he would stand on his original petition and if final judgment had then gone, the question would be simple and its answer at hand. In that event, as there can be but one final judgment in a case and as the code does not require it to be entered at the same' term a demurrer is sustained, and- as no bill of exceptions was necessary, it would seem the original petition, demurrer and the ruling thereon would be here for review according to accepted canons of practice. But the hypothesis just indulged does not aid us in the presence of the facts; for they [426]*426do not run that way in this record. To add to the confusion, counsel for the defendant did not, in terms and technically, demur to the second amended petition. They filed a motion to strike it from the files, but in doing so their pleading was dual in form. It sought to kill two birds with one stone, or, rather, one with two. It was not only a motion to strike out but also a general demurrer. If that practice is to be tolerated we will presently see,.by one stroke of a pen, an answer, a demurrer, a motion to strike from the files or to dismiss as a bundle, an aggregation leading up to judicial puzzle-headedness. But this is not ail the confusion. In the case at bar plaintiff raised no objections to the dual features of the “motion.” Furthermore, the court (strictly speaking)- apparently ignored the ground of the motion directed to the sufficiency of the amended petition, and sustained it on the grounds the amended petition was a replica of an original already held bad on demurrer. This, agreeable to the' idea that once dead always dead, ergo, once dead was enough. In that rather narrow view of it, the bill of exceptions was necessary to preserve the motion to strike from the files in so far as it filled the office of such motion; for the general rule is motions can be preserved nowhere else.
In this condition of the record, plaintiff’s- counsel argue there is.no such motion known to the practice, as one to strike a petition from the files.
Contra, defendant argues that the motion was well enough, for that plaintiff was not entitled to two rulings, nisi, on the sufficiency of the same petition. We shall not pursue the matter. It seems a tempest in a teapot. We have dwelt on the foregoing novel features, raising singular questions of practice, not to decide tliem at this time, but to edify and admonish. I am not so sure that the brace of lines originally leveled at changes in fashion, maybe:
[427]*427“Be not the-first by whom tbe new are tried, Nor yet tbe last to lay tbe old aside,”
is not a good court rule.
Our conclusion on tbe matter is tbat, in legal effect, the ruling on tbe motion to strike from tbe files was equivalent to sustaining tbe demurrer to tbe second amended petition. It certainly reached tbat end —witness the final judgment bard on tbe heels of tbat ruling. Apparently such was tbe office given it by tbe parties and tbe court. True, tbe language of tbe order sustaining tbe motion and tbat of tbe judgment itself might bear another construction. It might mean tbat tbe court paid no attention to tbe ground in tbe motion in tbe nature of a demurrer. But it is susceptible of tbe construction we put upon it. It may be held to mean tbat, as the court bad already sustained another demurrer to what it deemed the same petition, it stood by its guns, was satisfied with its legal conclusions and, to make them now effective, applied them to tbe motion and tbe amended petition. Certain it is tbat defendant cannot complain of this view. It voluntarily injected tbe demurrer into tbe body of its motion and must stand sponsor for its presence in tbe record. Nor can plaintiff complain, since tbe view just taken is tbe most favorable possible to him. It is immaterial then, whether we consider tbe original or tbe last demurrer, nor need we bother with comparing tbe petitions to see if they are tbe same; for, if they are, tbe question is here on tbe last demurrer. If they are not, then tbe sufficiency of tbe last petition presents tbe single question in the case. We prefer to let tbe appeal ride off on its own merits, rather than on odd questions of practice.
Observe, plaintiff’s petition did not differentiate between actual damages and smart money as provided by Revised Statutes 1899, section 994. Under such circumstances be was entitled to no punitive damages. [428]*428However he complains of malice in the publication, his pleading was unmistakable notice to the defendant that no exemplary damages were claimed on that score. This omission does not make the petition demurrable, but is it not to be taken as something of an estimate by learned counsel on the gravity of the libel? Is it not to be reckoned with from that viewpoint? We pass the matter without deciding it, and need not' allow it as a controlling element of the case. This brings ns to the main question: Was the petition good?
(a) Some of the words said to be poisoned with a libelous sting are “killing” and “killer.” In the companion case, supra, the word was “killed” and we concluded that, interpreted in the light of the context, it was not ambiguous and was not fairly susceptible of being construed to mean the unlawful or criminal taking of human life. We follow that ruling on the .words “killing” and “killer.” The natural import of “to kill” is to deprive of life, and of “killer” is one that kills. The opinion in the other case must be taken with this on those words (quod vide.) They are not libelous per se unless the context gives them a libelous twist or color, and the context in the article we are considering does not do that here any more than the other article did there. Libel cannot hang on so slender a thread as a mere matter of taste in the penman’s selection of one word instead of another one, interchangeable as a synonym or (by condensation) in using laconically one word instead of expanding and diluting his idea into a phrase, thereby toning and softening it down. The use of a given word often make the stroke that of a feather. The use of another may make the stroke that of a hammer. When the purpose is honest, as gathered from the whole publication, when the discussion is on a matter of live and public concern (as here), and there are no earmarks of malice through invectives, vituperation [429]*429or calumny, and where the publication does not pertain to the private business and the private character, of the individual, or charge corruption, or other misdemeanor to one clothed with authority in a defamatory way — we say, when such condition of things appears, then a writer may use a hammer instead of a feather in fulminating argumentatively.
(b) The main contention of the counsel is that the phrase, “wantonly taken the life of an innocent child in direct violation of law,” imputes a crime— therefore, it is libelous per se. But that phrase is only part of a sentence, and to bear the libelous construction put upon it by the plaintiff’s innuendo, it must be wrenched from its context. Standing alone as a statement of existing fact, we would agree with learned counsel that the words charged a crime and were actionable per se. The trouble is the words do not stand alone. The context shows that they were used argumentatively and by way of hypothesis. Now, it goes without saying that an hypothesis is not equivalent to a statement of fact. The context shows that there is no such charge made against plaintiff by direct statement or by logical inference or by roundabout insinuation as will presently appear.
In leading up to a just conclusion, we must take a bird’s-eye view of the whole article. Obviously, it is aimed at Dr. Baron and his official conduct (as coroner as well as the conduct of a coroner’s jury) and that of other officials. It undertakes to discuss that conduct in relation to the death of a child on the street through a collision with an automobile. We do not rule that A may not libel B in criticising C; A may strike B over C’s shoulder. But, as ruled in the former case, so we rule now, the malice supporting an action of libel must flow from defendant to plaintiff and not to another. So that, for the libel, if any, to Baron or the other officials, he or they must sue. This plaintiff [430]*430can recover nothing on that score unless he goes further and shows he, himself, was libeled.
It seems shortly before the fifth day of May, 1906, a little girl, Gertrude Copeland was killed on a street in St. Louis by an automobile driven by plaintiff as chauffeur. The automobile was that of the Health Commissioner of the city of St. Louis. It seems the chauffeur reported to his employer, the Health Commissioner, and the latter took the matter up with Doctor Baron as Coroner. We infer the chauffeur was then in the custody of the police.
The Health Commissioner, on the strength of the representation of his servant, took the servant’s view of it, viz., that he was not to blame for the death of the child. The Coroner, after consulting with the Health Commissioner, took the Health Commissioner’s view of it and gave a written order for the release of the chauffeur or an order resulting in his release from custody. With this condition of things the writer of the article was not in accord. Finally, a coroner’s inquest was held and its finding was to the effect that the chauffeur was not to blame. It is common knowledge that while an investigation by a coroner is judicial in its character, yet the coroner does not stand precisely in the attitude of a judge to a jury in a court of justice. To the contrary, he takes part in the investigation and verdict, commonly participates in the jury’s deliberations, and the verdict not infrequently takes color from his predilections and conclusions. In this view of the matter the writer of the article chose to criticise the coroner for having prejudged the cause of the death of the little girl before inquest held, and for having officially meddled in procuring the release of the chauffeur from the custody of the police on an ex parte showing by the chauffeur alone and without an impartial investigation of the facts. The article goes on to throw doubt upon the' value of [431]*431the verdict of the coroner’s jury. In doing so the writer of it argues that the jury could do no less than to find the chauffeur without blame, because to find he was to blame was equivalent to condemning what had already been done by the police department, the health commissioner and the coroner. A verdict against the chauffeur, he argued, was not to be expected since such verdict would be to convict the coroner et al. of an atrocious act. What atrocious act? “The atrocious act of setting at liberty a man who had wantonly (not in fact, but as the jury had just found in that hypothesis) taken the life of an innocent child in direct violation of law.” That is to say, if the jury had rendered a verdict to the effect that the child came to its death at the hands of the driver of the automobile, through his wanton (that is, his reckless) conduct, then by the same token the coroner was guilty of the atrocious act of setting such a man free.
We make nothing more out of the words than an illustration by way of hypothesis used arguendo, to show that the coroner’s verdict had no significance, and was produced by evil precedent conditions. To make a statement of fact out of the hypothesis of the writer would be a most unfair, forced and unnatural construction. A demurrer reaches the vice of such a construction. [ Diener v. Star-Chronicle Pub. Co., supra.]
The writer goes on to argue, in effect, that under the circumstances outlined the coroner’s inquest was mere mummery “to save the faces” of the officials in a matter of sharp concern to the public, which matter they had already and improperly prejudged and determined.
In this condition of things, we can very well see how the coroner’s jury or the officials might grieve over the accusation. But, as said, the question of [432]*432libel or no libel as to them is not here. In tbe defendant’s statement of its ease against tbe officials, the transaction in which they are said to be derelict had to be described. To do so necessarily involved the mention of the chauffeur directly or by implication. He was mentioned. Plis connection with the child’s death was set forth and, broadly speaking, the alleged libel is no more than a public denunciation of those officials for putting themselves in a situation seemingly precluding a fair and searching coroner’s quest into the cause of the child’s violent death.
(c) There is other language criticised as either libelous, or as feathering the libelous arrow in the phrase just considered under paragraph b, viz.: ‘‘ Further, such a finding would make the chauffeur responsible for a criminal offense for which he might be sent to the penitentiary for life and from the consequence of which he could easily have freed himself while he was at liberty.” Stress is laid on the words “criminal offense,” the words “penitentiary for life” and the idea of the chauffeur fleeing; but, taking the whole paragraph with what goes before and after, a reasonable reader could not construe it as a statement of fact, or that the chauffeur had actually committed a criminal offense for which the law might consign him to the penitentiary for life, or that he was likely to take leg-bail for it. The paragraph in hand was but part of the hypothesis discussed by the author of the screed, tending to throw cold water on the verdict. It was based on what would be the effect of a coroner’s verdict condemning the chauffeur, and was but leading up to the conclusion that ho such verdict was a possibility after the coroner had taken a position in favor of the chauffeur, as his conduct indicated— conduct characterized as “the high-handed handling of the case.” The paragraph is followed'by another leaving no doubt of the writer’s meaning, viz.: “If [433]*433the coroner had brought about such a finish to the investigation, he would have been a rare man indeed.” The context, instead of aiding plaintiff’s innuendo, entirely explodes it.
(d) Finally, it is argued that the- tendency of the publication was to expose plaintiff to “public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, etc.” [R. S. 1899, sec 2259:] But he who thinks that an article merely having that tendency is either a civil or a criminal libel has studied the law of libel to little purpose. The controlling words in that section are “malicious defamation” by means of printing and writing, etc.,- tending’ to provoke him to wrath or expose him, etc. There must be defamation in a libelous sense before there can be a libel. Otherwise, alarming results would follow. For instance: in a community believing in beer and wine drinking a good devotee of total abstinence would be libeled by a mere expose of his true principles, thereby necessarily holding him xxp to public scorn, contempt, etc., among his bibulous neighbors. To make a libel there must be defamation in the sense of the law before the public scorn and contempt feature is operative. Defamation includes the idea of calumny, aspersion by lying — the injury of another’s reputation in that way. To defame is to speak evil of one maliciously, to dishonor, to render infamous. Whether the words of the publication could reasonably bear such interpretation was a question of law. [Diener v. Star-Chronicle Pub. Co., 230 Mo. 613; Donaghue v. Gaffy, 54 Conn. 257; Heller v. Pulitzer Pub. Co., 153 Mo. 205; Urban v. Helmick, 15 Wash. 155; Ukman v. Daily Record, 189 Mo. l. c. 390; Branch v. Knapp and Co., 222 Mo. l. c. 587-8.] We think it was well decided.
[434]*434(e) The doctrine of the right of free speech and free press discussed in the other case applies as well to this and leads to the same conclusion.
The premises all considered, the judgment was right. Let it he affirmed.
The foregoing opinion was written in Division One by Lamm, J. The case came into Banc on the dissent of a judge of that Division. On reargument in Banc, the divisional opinion of Lamm, J., became the opinion of the court. Accordingly, the judgment is affirmed.
Graves, Ferriss and Brown, JJ., concur. Wood-son and Kennish, JJ., dissent, Woodson, J., in an opinion filed; Valliant, G. J., absent.