VALLIANT, J.
This is an appeal from a judgment against tbe defendant for $15,000, for an alleged libel.
I. At tbe beginning tbe defendant challenges tbe jurisdiction of tbe court that rendered tbe judgment. Tbe facts concerning that point appear on tbe face of tbe record and are as follows: Plaintiff and defendant at tbe times herein mentioned were both residents of J ackson county; tbe defendant was a domestic cor-' poration engaged in tbe business of publishing a newspaper ; it bad its office and place of business in Jackson county, and it was in that county that tbe newspaper containing tbe alleged libel was printed and issued to tbe public. Tbe newspaper circulated not only in Jackson county, but other counties in the State. Defendant bad no “office or agent for tbe transaction of its customary business” in Platte county, but tbe newspaper was circulated there as a public newspaper. This suit was instituted May 30, 1903, in tbe circuit court of P’latte county; tbe summons was issued to tbe sheriff of Jackson county and executed by service on tbe defendant in Jackson county. At the return of tbe writ tbe defendant appeared specially and filed a motion to dismiss tbe cause on tbe ground that it appeared on tbe face of tbe record tbe court had no jurisdiction to try it.
While that motion was pending tbe defendant filed a motion for a change of venue on tbe ground of undue influence over tbe mind' of tbe judge. The court sustained that motion, and made an order changing tbe venue to Ray county. After tbe record was duly lodged in tbe Ray County Circuit Court, that court on October 12, 1903', of its own motion continued tbe cause, and on February 12, 1904, tbe cause was continued by con[65]*65sent. On May 25, 1904, the court overruled the defendant’s motion to dismiss for want of jurisdiction and ordered that the cause be set for trial at the next term, and granted leave to defendant to file an answer within thirty days. The defendant duly excepted to the action of the court overruling the motion to dismiss and preserved its exception in a term' bill of exceptions duly authenticated and filed.
September 9', 1904, defendant filed an answer to the plaintiff’s petition, and afterwards, October 10th, an amended answer, in each of which was a plea to the jurisdiction on the grounds above indicatéd, followed by pleas to the merits. As already stated, the trial resulted in a judgment for the plaintiff and defendant appealed.
There are two sections of our statutes discussed in the brief of counsel on this branch of the case, section 562, Revised Statutes 1899: ‘ ‘ Suits instituted by summons shall, except as otherwise provided by law, be brought: “First, when the defendant is a resident of the State, either in the county within which the defendant resides, or in the county within which the plaintiff resides and the defendant may be found,” etc., and section 997: “Suits against corporations shall be commenced either in the county where the cause of action accrued, or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.”
The first of those two sections is in the Code of Civil Procedure; the second is in the chapter on Corporations, it first appeared in the revision of 1855, and has continued in every revision since in the same words.
The. plaintiff’s theory is that the cause of action accrued in Platte county when the newspaper was there put into circulation; defendant’s theory is that the [66]*66cause of action (if any) accrued in Jackson county where the newspaper was first uttered.
Defendant has also a theory that section 997 which essays to render a corporation, liable to he sued in a county in which neither plaintiff nor the defendant resides’ is unconstitutional, because it is class legislation and does not .afford the defendant protection of the law equal to that afforded an individual. Defendant’s position on this point is illustrated by counsel in one of their briefs filed by supposing the following: Two newspapers are published in the same city, they both circulate through all the counties in the State; one of them is published by an individual the other by a corporation ; they both publish the same libel on the same' day; the plaintiff cannot sue the individual publisher elsewhere than in the county of his residence, or in the county where the plaintiff resides and the defendant may be found, but he may sue the corporation in either of the 114 counties in the State where, in his judgment, the greatest advantage is to be expected. From that supposed case the counsel argue that there is an inequality in the law that permits that discrimination and that the disadvantage 'to the corporation is quite material. It is further argued that, although the corporation, when sued in a county in which, it apprehends the popular sentiment is unfriendly, may take a change of venue, yet that at most only alleviates, does not remove, the inequality, does not put the corporation publisher on the same plane with the individual.
On the other side this argument is met with force by the plaintiff contending that the Legislature in dealing with the artificial creatures of the law may, in certain particulars, make them a class to themselves, and impose conditions upon them not imposed on individuals.
But in view of the statute law of this State as it was at the time the defendant organized as a corporation, [67]*67and as it still is, we may approach the question of the constitutionality of the section of. the statute now assailed by the defendant with conceding for the sake of the argument that it does not place the corporation on an equal plane with the individual in reference to the county wherein it may be sued and that the inequality is a material disadvantage. And it may also be conceded, for the sake of the argument, that a corporation whose charter puts it on a plane with an individual in a certain particular is entitled to the protection of the law in that particular equal to an individual under the same condition.
But in its origin there is a difference between a corporation and an individual. The corporation is an artificial being', possessing only the rights that the State has granted and bearing the burdens that its charter imposes.
The State in issuing the charter may impose its own terms, and, when accepted, the corporation is bound by the terms; if terms are imposed in the charter that result in placing the corporation in a position less favorable than individuals would occupy in relation to the same subject, the corporation cannot complain because it is one of the conditions on which its right to be a corporation was granted.
The statute laws of the State prescribing the powers that a corporation to be organized under those laws may have, and prescribing also the terms, and conditions under which the powers granted are to be exercised, are, in legal contemplation, incorporated in the charter of the corporation organized thereunder as absolutely as if copied into it. If for example the State should see fit to say in its statute law that every corporation thereafter created should maintain an office a.t the seat of the State government in charge of an agent on whom process could be served, and should be liable to be sued in the county where the State [68]*68capital is located, the power of the State to enact such a law conld not be questioned, and if a corporation should thereafter be organized and accept its charter under those terms it would have no right to. complain.
The section of the statute which defendant now assails, section 997, Revised Statutes 1899', is a part of the chapter containing the statute law of this State concerning the organization of private corporations and prescribing their powers and duties. In one section of that chapter, section 971, defining the powers of corporations to be organized thereunder, it is said that they may “sue and be sued” by their corporate names, and this section, section 997, prescribes where they may be sued. The two sections go together; they are component parts of the same legislative act through which alone a corporation organized thereunder obtains its right to existence; they relate to the same subject; a corporation that accepts the one must accept the other also. This section, 997, was first enacted in 1855, it has been the law of this State, in that connection, continuously from that date to this, therefore it was the law under which the defendant corporation was organized and defendant cannot question its validity.
It is argued that there is no reason why any difference should be made in a case of this kind between a defendant corporation and a defendant individual, because the injury to the plaintiff is as great in the one as in the other. That is a question concerning the policy of the law with which courts have nothing to do, but if we were compelled to heed the argument, an answer might be found in the fact that in the one case there is a personal liability, in the other not so. If the corporation has a peculiar burden in one particular its stockholders have a peculiar advantage in another.
We hold, therefore, that the defendant in this case was liable to be sued in the county where the plain[69]*69tiff’s cause of action accrued although it may not be the county in which defendant resided or that in which the plaintiff resided and .the defendant was found.
The next question is where did the cause of action accrue?
In the briefs on both sides references are made to authorities bearing more or less on this question; among all those authorities we have not seen one that holds contrary to the plaintiff’s contention that the right of action for a libel contained in a newspaper accrues wherever the newspaper is publicly circulated by the defendant. Among the cases so holding are the following:
' In California, under a clause of the constitution which provides that a corporation may be sued “in the county where the contract is made or where the obligation or liability arises,” it has been held that a corporation residing and publishing a newspaper in Los Angeles, which newspaper circulated throughout the State, in San Diego county among others, was liable to be sued in San Diego county. The court said: “A corporation formed to publish a newspaper whose circulation is by the publisher extended into counties and places other than that of the principal place of business of the corporation, is in a position to commit an injury by a libelous publication precisely as is the electrical or water corporation or railroad company that extends its lines of operation beyond the boundaries of its residence or principal place of business in position to commit an injury in effecting its objects.” [Tingley v. Times-Mirror Co., 144 Cal. 205.]
In a Kentucky case the publishers resided in Jefferson county and the newspaper was printed and issued from their place of business in that county, but it circulated in other counties, among which was Daviess county. The suit was brought in Daviess county. The Kentucky statute was: “Every other action for an [70]*70injury to the person of the plaintiff, and every action for an injury to the character of the plaintiff, against a defendant residing in this State, must be brought in the county in which the defendant resides, or in which the injury is done.” The court said: “It may be true that the cause of action accrued to the plaintiff in Jefferson county as soon as the Commercial was printed and placed in the mails in Jefferson county, but that fact does not necessarily preclude the plaintiff from maintaining his action in any county in which the injury to him was inflicted. ... It seems clear to us that the action may be brought, at the option of the plaintiff, in the county of the defendant’s residence, or in any county in which the injury to his character has been inflicted.” [Louisville Press Co. v. Tennelly, 105 Ky. 365.]
In a Texas case the publishers resided in Galveston county, their newspaper, the Galveston Daily News, was printed and issued to the public in that county and circulated in other counties, among them Travis county; under a statute which provided that “where the foundation of the suit is some crime, or offense, or trespass for which a civil action in damages may lie, in which case the suit may be brought in the county where such crime, or offense, or trespass wa,s committed, or in the county where the defendant has his domicile,” it was held that the suit was properly brought in Travis county. The court used this language: “The fact that the crime of libel may have been completed by a publication of the paper in Galveston county does not make it any less a crime to circulate the number containing the alleged libelous article in other places. By the common law the sale of each copy is a distinct publication (Odgers on Lib. 532), and hence a distinct offense, and the prosecutor may at least choose for which of the distinct offenses he will call the guilty party to account.” And again [71]*71the court said: “The offense having been committed in Travis county, and being indictable there, the present civil action for damages was properly brought in that county.” [Belo & Co. v. Wren, 63 Tex. 686, l. c. 721.]
When we analyze the subject we find not much reason to dispute the proposition. What is libel? In Words and Phrases, vol. 5, p. 4116, it is defined thus: “In its most general and comprehensive sense any publication injurious to the reputation of another is a libel.” In 2 Bouvier’s L. D., p. 207, it is: “Everything, written or printed, which reflects on the character of another, and is published without lawful justification or excuse, is a libel, whatever the intention may have been.”
Sincé under onr law the truth of the article published may be shown in justification, to the above definition the word “false” in reference to the article should be added. When therefore the defendant sent its newspaper containing the article complained) of into Platte county and there gave it out to the public, if the article was libelous in character what element was lacking to constitute a cause of action t1'eT> and Fere? Let us take the definition of “cause of action” as given in the brief of defendant’s learned counsel; it is the existence of “every fact which is material to be proved to entitle the plaintiff to recover.” What fact essential to the plaintiff’s right of re- w -r" did not occur in Platte county? But it is sadd the! the publication first occurred in Jackson county and that the plaintiff’s right of action accrued there if at all. We agree with counsel for defendant that the one issue of the newspaper, though it may have been of many thousand copies distributed in many differed counties, gave but one cause of action, but to reach that conclusion we must say that there was but one publication. If we should 'say that the publication in Jackson [72]*72county was a publication distinct from that- in Platte county, then we would have to say that there were more than one publication and more than one cause of action. But there was but one publication — one utterance — and though some of the papers did not reach their destination as soon as others, yet they all emanated from the one act and all constituted but one libel, if libel at all. It is the publication of the libel, not the printing of it, that gives the right of action. When the publisher gives out his paper to be circulated not only in one but in many counties and it is circulated as he intended, he is deemed in law to have published it in all the counties, and the act is no less a publication in one county than another.
If the defendant’s newspaper was, in obedience to defendant’s purpose, given public circulation in Platte county and if it contained a libel of the plaintiff, the plaintiff’s cause of action accrued in that county.
We appreciate the force of the argument of defendant’s counsel wherein it is pointed out that under certain conditions an unfair advantage may be obtained by allowing the plaintiff to select the county in which he may bring his suit, but that argument should be addressed to the Legislative Department of the State government. The courts must take the law as they find it, whatever they may think of it.
Since we have reached the conclusion that the circuit court of Platte county had jurisdiction of the cause, the writer hereof, for himself, prefers to not express any opinion on the question of whether the defendant waived whatever objection if any it might have had to the jurisdiction. But that question has received the consideration of the court, and the opinion of the court on it is set forth in the opinion by Gantt, C. J., in which a majority of the court concur. That opinion is to be read with this as expressing the decision of the court on that question.
[73]*73II. We turn now to the case on its merits:
The petition states in effect as follows: That the defendant is a domestic corporation having its domicile in Jackson county and engaged in publishing a newspaper called the Kansas City Star, which has a large circulation in Jackson and Platte counties and elsewhere throughout this State and Kansas and other states; that plaintiff is also a resident of Jackson county engaged in practicing law for a living and until the wrong done him by defendant, was esteemed among his neighbors and all good people, to whom he was in any wise known, to be a person of good name and credit ; that in 1890 and again in 1894 he was elected a member of the General Assembly and served as such in the 36th and 38th sessions of that body and in 1896 he was appointed, qualified and served as Chief of Police of Kansas City; that the defendant, designing maliciously to injure plaintiff in his good name and reputation and bring bim into public scandal, etc., etc., and cause it to be suspected and believed that he was guilty of taking bribes and using his office as a member of the General Assembly to corruptly make money, and that he was unfit to hold a public office and had been so found after a thorough investigation by a Senate Committee and had been impeached and removed from office by the Missouri State Senate, and to injure the plaintiff, did on the 5th day of January, 1903, at Kansas City, falsely, wickedly and maliciously compose, print and publish in its newspaper, the “Kansas City Star,” in and through Jackson and Platte counties and through the State of Missouri, Kansas and the United States generally, of and concerning the plaintiff the following false scandalous, malicious, defamatory and libelous article, to-wit:
“Stone himself failed to appear last night and this morning. His interests were in the hands of Kimbrough Stone, his son, and Henry S. Julian. Julian [74]*74is remembered here as a member of tbe Legislature, who [meaning the plaintiff] did well in a legislative way,'but also as Stone’s chief of police, of whom a Democratic senate committee said: ‘He [meaning the plaintiff] is not a proper man for the position.’ A Democrat senate removed him [meaning the plaintiff] and the commissioners who appointed him [meaning the plaintiff].”
Then the petition goes on to state innuendo in effect that thereby the defendant intended to mean, and' the readers of the paper would understand it to mean, that the plaintiff had acquired a reputation while a member of the General Assembly of taking bribes and was willing to use his official influence corruptly to make money; that the Governor of the State had had him appointed Chief of Police of Kansas City, but that the Missouri State Senate, knowing plaintiff, his character and reputation, in pursuance to impeachment proceedings, had removed and ousted him from office on account of his being found guilty of high crimes and misdemeanors in office or of misconduct or habits of drunkenness or oppressioninoffi.ee, and had adjudged him disqualified to ever hold an office of honor or trust, etc., etc., and intended to mean and the readers of the paper would understand it to mean that the plaintiff was known to be so corrupt and venal that the commissioners who appointed him Chief of Police were themselves removed from office for having appointed him, all of which was untrue and the defendant knew it was false, but made the publication maliciously to injure the plaintiff. The prayer of the petition was for actual damages and punitive damages.
The defendant in its answer admitted the publication, denied the innuendo, and set up certain facts as in justification and also in mitigation.
The verdict of the jury was for the plaintiff, assessing his compensatory damages at $10,000', and [75]*75e da".iages at $5,000; judgment for $15,000, and defendant appealed.
HI. There was evidence tending to show that 'at the time this publication was made the public mind was a good deal occupied with rumors of corrupt influences affecting legislation, called in the slang of the day “boodling.” Over the objection of defendant the plaintiff was permitted to introduce evidence of witnesses who testified that they read the article in defendant’s newspaper which forms the basis of this suit and that they understool the term “did well in a legislative way” to mean that the plaintiff had been corruptly influenced in his official acts as a member of the General Assembly, taking bribes — boodling. This is assigned for error.
On the question of the admissibility of evidence of that kind the authorities are not entirely uniform. They all agree to this extent, viz: If the words are ambiguous, or if under the conditions and circumstances in which they were used they are susceptible of a double meaning, the question of whether they were used in one sense or the other is a question for the jury. And the authorities also agree that testimony showing the particular conditions and circumstances which are thought to give the peculiar meaning, is competent, but whether or not, after those conditions and circumstances are shown, a witness should be allowed to testify as to what he understood the words to mean when he heard or read them there is some difference of opinion.
If we say that conditions and circumstances may influence the meaning of the words and that it is a question of fact whether the particular words complained of conveyed the meaning it is charged they conveyed, we do not see why the testimony of a witness as to the meaning that the words actually conveyed to his mind is not competent. It is perhaps testimony [76]*76of a dangerous character because it is difficult to .contradict, but it is of the same character as opinion evidence and should be weighed with the same caution; its worth depends on the character and quality of the witness.
Defendant in its brief quotes from Newell on Slander & Libel (2 Ed.), p. 308: “In actions for defamation witnesses cannot be allowed to testify as to the meaning which they understood the alleged defamatory matter to convey or the particular person to whom they understood it to apply.” But in a section immediately following, the same author says, page 311: “There is some conflict of opinion in regard to the doctrine laid down in the text, and it would seem that the law is not to be regarded as completely settled upon this question.” Then the author goes on to quote authorities holding contrary to his text, among them the Supreme Court of Illinois, Nelson v. Borchenius, 52 Ill. 236, wherein it is said: “It may well be asked what better guide there is, in that inquiry, than to ascertain how they were really understood by the by-standers. ” And the text-writer refers also to Smart v. Blanchard, 42 N. H. 146, wherein he says all the authorities are reviewed and the conclusion is reached that the testimony is admissible.
Starkie on Slander & Libel (5 Ed.), p. 466: “Where the words spoken or the meaning of the terms employed are ambiguous, and it is doubtful in what sense the speaker intended them, the question is. in what sense the hearers understood them; and if, when words may have two meanings, the hearers understood them in an actionable sense the action is maintainable; for the slander and damage consist in the apprehension of the hearers.”
The author is there speaking of words that may have two meanings, one actionable, the other not so, and whether the one meaning or the other is to [77]*77be ascribed to them is to be determined by ascertaining which meaning they actually convey to> the minds of the hearers, the only direct proof of which would be the testimony of hearers themselves. The author goes onto say that if it be intended to ascribe to the words some peculiar meaning imparted to them by previous occurrences, conversations or other matters, a witness cannot be asked, “What did you understand by the words?” until the foundation is laid by introducing evidence of the existence of such matters.
Odgers on Libel & Slander (4 Ed.), p. 633: “But if with their ordinary meaning the words are perfectly good sense as they stand, facts must be given in evidence to show that they may have conveyed a special meaning on this particular occasion. After that has been done, a by-stander may be asked, ‘What did you understand by the expression used?’ ” And on page 634 the author, says: ‘£ The plaintiff may give evidence of surrounding circumstances from- which a defamatory meaning can be inferred; he may call witnesses to state how they understood the libel; though the jury are not bound to adopt the opinions of such witnesses.” [See also, Goldsborough v. Orem & Johnson, 103 Md. 671.]
The precise question of whether or not it is in such case permissible to ask a witness who read the alleged libel what meaning it conveyed to his mind has hot been decided by this court. In Callahan v. Ingram, 122 Mo. 355, it was held that the trial court did not err in refusing to allow a witness to testify as to what he understood the alleged slanderous words to mean, but that was not an adjudication of this question because in that case there was no ambiguity about the words complained of; the defendant had said of the plaintiff that he was a “downright thief.” But in the cases that have come before it this court has held that when the words are ambiguous or sus[78]*78ceptible of more than one meaning, the question of the sense in which they were used is one of fact for the jury. In Caruth v. Richeson, 96 Mo. 186, l. c. 190, the court said: “When the language is ambiguous, and it is doubtful in what sense the publisher intended it, the question is in what sense the hearers understood it, for slander and damag'e consists in the apprehension of the hearers.”
If the question is, in what sense did the hearers understand it, what better source of information have we than the hearers themselves?
In McGinnis v. Knapp & Co., 109 Mo. l. c. 141; St. James Military Academy v. Gaiser, 125 Mo. l. c. 526; and Ukman v. Daily Record Company, 189 Mo. l. c. 394, the law is declared that when the meaning of the words complained of is doubtful the question is for the jury, and the meaning is to be gathered from the context and all the facts and circumstances under which they were used.
In Wagner v. Printing Co., 45 Mo. App. 6, l. c. 13, the court, per Ellison, J., said: “We may concede (for the present purposes) that, where the words are plain and unambiguous and disconnected from outside matter which would give them a different or additional meaning, such evidence should not be heard. But where matter is alleged, and it is shown, as in this case, that something has occurred in consequence of which the words would convey a meaning additional to that which would ordinarily attach to them, such testimony should be heard. [Townshend on Slander, sec. 384; Odgers, Libel & Slander, 538.] And, where the language may or may not impute the crime which is charged to have been imputed, such testimony is proper. [Townshend on Slander, sec. 140; 2 Greenleaf on Ev., sec. 417; Nelson v. Borchenius, 52 Ill. 236; Knapp v. Fuller, 55 Vt. 311.] The fact as to [79]*79•what was intended must be ultimately determined by the jury.”
And in Lewis v. Humphries, 64 Mo. App. 466, l. c. 471, the same court, per Smith, P. J., said: “The rule to be deduced from the authorities -to be presently cited, including those of our own State, is that, in an action where the words are not obviously slanderous, in order to entitle plaintiff to recover, first, be must allege and prove that the words were actually used in an actionable sense and were applied to plaintiff; second, that the hearers so understood them, and upon this latter point the testimony of the hearers as to how they understood them is admissible.”
It will be noticed that the authorities above quoted consider the subject of the interpretation of the alleged defamatory words under three heads: first, words that are not ambiguous or doubtfulin their meaning ¡second, words, on their fane, susceptible of more than one meaning; third, words innocent in themselves, but which derive an offensive meaning because of certain conditions or circumstances under which they were uttered. In. the first, there is no question for the jury (at least in the sense of its being a question of fact); in the second, it is a question of fact without the proof of any outside conditions; in the third, it becomes a question of fact when proof is adduced showing conditions under which the words used might have a sinister meaning. In the second and third clauses, the question of fact is given to the jury, because the words are liable to convey to the minds of the hearers or readers a defamatory meaning, but before the jury can find for the plaintiff they must be satisfied, not only that the words were liable to convey the injurious meaning, but in fact did convey that meaning. Now, what is the best proof of the fact as to the meaning actually conveyed? The testimony of witnesses saying what they understood the words to mean is in the cate[80]*80gory of opinion evidence, the jury are not bound by it, even though they credit the witness with honesty, because they may think his judgment was in error. On this point the court at the request of the defendant gave this instruction:
“5. The jury are instructed that they are not bound by any construction placed by any witness upon any of the language of the article sued on and offered in evidence; and the jury themselves are the sole judges of the meaning to be ascribed to the language. ’ ’
But we can see no reason why either party in a suit of this kind, on a question of this kind, may not call to the witness stand intelligent and reputable members of the community to whom the words were addressed, and ask them what meaning the words, conveyed to their minds when they read them. We are not meaning to say that a -defendant, using words not fairly susceptible of being construed as defamatory, is to be held liable because he happens to use them in the presence of. ignorant or prejudiced or corrupt witnesses who may testify that they so understood them. If the words are not susceptible of such a construction, either in themselves or in the light of circumstances proven, the court should not submit the question to the jury.
IV. In which one of the three classes above named did the words “did well in a legislative way” fall? It is contended on the part of defendant that they fall in the first class, they are too plain for construction, they have only a complimentary reference to the plaintiff as a legislator.
Language is a wonderful moral power; one may become so skillful in the use of it that he may purposely instill in the minds of his hearers or readers thoughts which are so far beneath the surface that they are scarcely traceable back to him as the author. A meaning may be veiled with a veil designed to be penetrated and the meaning rendered all the more [81]*81forceful by requiring some mental effort to uncover it.
'When we are reviewing the past conduct of a man and say of him that at a certain time he was engaged in a certain business and did well in it, the idea conveyed is that he was prosperous from a business point of view. The term “did well” is easier of understanding and more appropriate when applied to the result of one’s operation in a commercial business than his conduct in an official capacity. The pecuniary pay of a member of the General Assembly is fixed by law at a sum scarcely more than to defray his expenses while serving the State, his real compensation is in the honor he receives as a member of the lawmaking department of the State government. If the purpose of this article had been to commend the plaintiff for his official conduct a term more appropriate could have been used without going to a dictionary of commercial phrases. The man who wrote the article was a witness in the case, and one reading his evidence is impressed, not only with the fact that he is a man of more than ordinary intelligence, but also that he is a master in the use of the English language. If his intention was to express praise of the plaintiff’s official conduct, the term used was not up to the standard of expression to be expected of one of his intelligence and skill.
An argument is made on the use of the disjunctive conjunction “but” interposed between the term that defendant insists is laudatory and that which is not so. “Julian is remembered here as a member of the Legislature who did well in a legislative way, but also as Stone’s chief of police of whom a Democratic Senate Committee said,” etc. The interpretation the learned counsel for defendant would put on the whole sentence is that it means to say that whilst Julian was. remembered there as one who performed his duties well as [82]*82a member of the Legislature, yet on the other hand he was also remembered “as Stone’s chief of police of whom, ’ ’ etc., etc. The word ‘ ‘ also ’ ’ following the word “but” gives significance to the syntax; it suggests an ellipsis in the sentence to be supplied by implication. “When the term “but also” connects two parts of a sentence it usually implies that what follows it is in addition to what precedes it; it carries the idea “not only that, but also this.” Conceding therefore that the ellipsis might be filled with words to give the sentence the meaning which defendant puts upon it, it may with equal fairness be filled with words to express this idea, to-wit, Julian is remembered here not only as member of the Legislature who did well in a legislative way, but also as Stone’s chief of police of whom, etc.; and in that connection' the disjunction becomes a conjunction and the words “did well in a legislative way” take color from the words which follow.
We think the sentence in itself was sufficiently double in its meaning to justify the trial judge in submitting it to the jury for interpretation, and we also think that there was sufficient .evidence of a condition of suspicion in the public mind in reference to the conduct of members of the Legislature to render those words liable to convey to the minds of the people reading them that the plaintiff had made dishonest use of his office for his private gain.
We hold that the court committed no error in submitting the question of the meaning of the article to the jury, nor in receiving the testimony of witnesses as to their understanding of the article when they read it.
V. Instruction numbered 11 given for the plaintiff was as follows:
‘ ‘ The court instructs the jury that the justification pleaded in defendant’s answer has not been established, by the evidence.” That is assigned as error.
[83]*83The instruction would have been in better form if it had said that there was no evidence of justification. There was evidence tending to show that the plaintiff by lack of training and experience was not qualified to fill the office of chief of police, and there was also evidence tending to show that after a committee of the State Senate had investigated the police department of Kansas City and made its report, the police commissioners who had appointed the plaintiff Chief of Police were not confirmed by the Senate, that other commissioners were appointed who were confirmed and who signified to Mr. Julian that they preferred that he would resign, and he did so. The commissioners whose appointment failed of confirmation by the Senate had been appointed by the then Governor in the vacation of the Senate, and when the question of their confirmation came on to be heard the term of the Governor who had made the appointments had expired, and another Governor was in office who preferred to make his own selection of police commissioners, and the result was that the appointments of the former Governor were not confirmed, but new appointments were made and confirmed. There was no evidence of removal of the former commissioners by the Senate or of the plaintiff as Chief of Police.
The sting in the article complained of was not that Julian by lack of training and experience was not qualified to fill the office or that the commissioners who appointed him were not confirmed, but it was that he had been removed from office by the Senate and that the Senate evinced its condemnation of him to such a degree that the commissioners who appointed him were also removed from office.' There was no evidence of justification of that charge; the court did not err in giving that instruction.
VI. It is complained that the court permitted the plaintiff to prove by the police commissioners who sue[84]*84ceeded those who appointed him that certain laws were not enforced under their administration because they were unable to do so. If there was anything wrong in admitting that evidence it was induced by the defendant who had introduced evidence to show that the plaintiff while he was Chief of Police did not enforce the same laws or at least did not enforce them impartially. Defendant has no right to complain of that evidence.
VII. It is insisted that the court erred in striking out that part of defendant’s answer setting up in mitigation the fact that the plaintiff’s unfitness for the office of Chief of Police was given wide publicity by articles published in another newspaper in 1896. and 1897 and that these publications voiced the general opinion then prevailing. What has been above said in regard to the plea of justification applies to this plea also. The plaintiff ’s unfitness or lack of qualification for the office was not in question.
VIII. Over the objection of defendant, plaintiff introduced evidence of a conversation in 1891 between the plaintiff and the proprietor of the newspaper, that is, the owner of practically all of the stock of the defendant corporation. In that conversation, according to the plaintiff’s testimony, he had been requested by Mr. Nelson to> advocate a certain policy relating to municipal ownership of waterworks, and on the plaintiff’s refusal to do so Mr. Nelson said: “Young man you will regret this — you will regret this and be sorry for it; a newspaper can make and unmake a man.” M,r. Nelson as a witness for defendant testified that there was never any such conversation between the plaintiff and himself.
It is insisted that this testimony should not have been received because, in the first place, it was too remote, and, secondly, there was no evidence that Mr. Nelson was at that' time the controlling power directing the policy of the newspaper. The remoteness of [85]*85the alleged occurrence is a fact to be considered in estimating the weight to be given the evidence, but it does not render it incompetent. It was competent on the question of malice.
As to the proprietorship of Mr. Nelson, even if the other evidence that had been introduced before the evidence relating to this conversation had not sufficiently shown it, the subsequent testimony of Mr. Nelson himself put that fact beyond question.
IX. Plaintiff was permitted to introduce in evidence other articles which had previously appeared in the same newspaper which criticised adversely his appointment to the rank of Major in the 5th Regiment Missouri Volunteers in the Spanish-American War. It is contended that these articles related to a different subject than the one contained in the alleged libel sued on, and constituted what might have been the foundation for another suit, therefore it was error to put them in evidence in this case.
The propriety of this evidence is debatable. On the part of the defendant it may be said it injects into the case what is practically a new charge of libel; to meet which the defendant has had no notice, no opportunity to explain or justify. Of course when the testimony is admitted the defendant would have the right to deny, explain or justify the publication, but the seeming injustice is in springing a new issue for which the defendant has had no opportunity to prepare. On the other hand, the evidence is of a character to show the hostile state of defendant’s mind in regard to the plaintiff, which is of the very essence of the libel. Whilst the authorities are not all one way on this question yet the preponderance is in favor of admitting the evidence. In 18 Am. and Eng. Ency. Law (2 Ed.), 1010, it is said: “It has been frequently held that in an action or prosecution for libel or slander, publications or statements of the defendant concerning the [86]*86plaintiff other than the one which is made the basis of th© action, may be given in evidence for the purpose of showing or of aggravating malice, whether or not such words can become the basis-of a recovery in a separate action. In many cases, however, the operation of this rule has been restricted to the uttering or publication of similar words or words of a similar import, or declarations upon the same subject, or referring to the publication complained of, and evidence of a distinct and different calumny has been held inadmissible.” In notes to the text is a collection of cases illustrating the doctrine.
In Odgers on Libel & Slander (4 Ed.), p. 326, it is said: “Malice may be proved by extrinsic evidence-showing that the defendant bore a long standing grudge against the plaintiff. . . . The plaintiff has to show what was in the defendant’s mind at the time of the publication, and of that no doubt the defendant’s acts and words on that occasion are the best evidence. But if plaintiff can prove that at any other time, before or after, defendant had any ill-feeling against him, that is some evidence that the ill-feeling existed also at the date of the publication; therefore, all defendant’s acts and deeds that point to the existence of such ill-feeling at any date are evidence admissible for what they are worth. . . . Thus any other words written or spoken by the defendant of the plaintiff, either before or after those sued on or even after the commencement of the action, are admissible to show the animus of the defendant, and for this purpose it makes no difference whether the words tendered in evidence be themselves actionable or not, or whether they be addressed to the same party as the words sued on or to some one else. . . . Such words need not be connected with or refer to the libel or slander sued on; provided they in any way tend to show malice in defendant’s mind at the time of the publication.” The [87]*87author then adds that if the other words are actionable the court should instruct the jury that they must not give damages for them. The court in this case gave the jury such instruction.
In Newell on S. & L. (2 Ed.), p. 334, the law is thus stated: “Evidence of former or subsequent defamation is only admissible to determine the motive with which the words sued on were published. They are only admissible when malice in fact is in issue. It is now well settled that whenever the intention of the defendant is equivocal, that is, whenever the question of malice or good faith is properly a1 out to he su1 mitted to the jury, evidence of any pre- or ui’ e iueut h>el is admissible, even though it be barred by the Statute of Limitations, and even though a former action has been brought for the libel now tendered in evidence and damages recovered therefor.”
Those quotations are from text-writers of recognized authority in the profession and we think they fairly state the law on this subject. Even under the limitation of the rule suggested in the brief for defendant and sustained by respectable authority, that the other publications should relate to the same subject as that sued on, we cannot say that these articles were not admissible, because they all relate to the same general subject, to-wit, the alleged unworthiness of the plaintiff to hold an office of honor and responsibility. We hold that the court did not err in admitting that evidence.
X. In justification of one of the editorials introduced in evidence by the plaintiff to show malice, entitled, “Two Different Stories,” or to repel the inference of malice, the defendant offered in evidence what purported to be a transcript of the evidence before a Senate committee wherein a witness had undertaken to detail a conversation with the plaintiff which tended [88]*88to justify the publication, and wherein also the plaintiff as a witness denied the conversation as detailed. The court sustained the plaintiff’s objection to this evidence and that ruling is assigned as error. The court’s ruling in that respect was correct. The unauthenicated purported copy of the testimony was mere hearsay. To justify a defamatory article or to repel the inference of malice one has no- right to say that A, B and C told me so and I believed it. If there were any facts within the defendant’s knowledge at the time the publication was made that would go to show that defendant in making the publication acted in good faith and therefore without malice believing the statements to be true, he would have the right to repel the inference of malice by showing those facts, but to' allow him to resort to- hearsay evidence would be a dangerous element to introduce into the trial of a case of this kind.
In ruling that this rejected evidence was hearsay we are not overlooking section 3091, Revised Statutes 1899: “The printed journal of the Senate and House of Representatives of this- State, and all public documents or reports therein contained, and all reports or documents printed by order of this State, or by either house of the General Assembly, or purporting to be printed by the authority thereof, shall be prima-facie evidence to the same extent that duly authenticated copies of the originals would be.” The statute does not make that competent evidence which before was incompetent; it only places the documents printed in the Senate or House journal on an equality with otherwise duly authenticated copies of the originals; if the original document is not competent, neither a duly certified copy, nor the copy printed in the journal is competent. In this ease the report of the committee was published in the Senate journal (Laws 1897, p. 511), and it was offered and read in evidence by the [89]*89defendant without objection, but the evidence taken before the Senate committee was not published in the journal or anywhere by authority. Whether even the report was competent evidence we need not discuss, because it was introduced by defendant and read without objection, but testimony taken before a legislative committee, where for the general public information a broad range of investigation is indulged, where relevancy and competency are not always as strictly observed as in a judicial trial, has not been declared to be competent evidence for use in a court of justice by any statute. For aught that appears in this record the witnesses whose testimony before the committee the defendant offered to read were within the reach of the process of the court and could have been produced at the trial.
XI. In connection with the article criticising the plaintiff’s appointment as Major of the 5th Regiment of Missouri Volunteers, the plaintiff while on the stand as a witness was asked whether while he was with the regiment it was inspected by any army officer, to which question defendant interposed a general objection, the court asked counsel for plaintiff to state the purpose of his question, to which counsel replied: “Bearing on his qualification and his standing as an officer, both of which are impeached by this article.” The Court: “That would be hearsay evidence.” Mr. Yates: “I am just asking who inspected it.” The Court: “Well let him answer.” Defendant excepted. The witness then stated who inspected the regiment and there the matter ended. The testimony was irrelevant but it was immaterial and could have had no serious effect.
XII. The first instruction given for the plaintiff was in these words: “1. The court instructs the jury that the petition of the plaintiff in this case charged, and the answer of the defendant admits, that the defendant published of and concerning the plain[90]*90tiff the following language: ‘Stone himself failed to appear last night, and this morning his interests were in the hands of Kimbrough Stone, his son, and Henry S. Julian. Julian is remembered here as a member of the Legislature who did well in a legislative way, but also as Stone’s chief of police, of whom a Democratic Senate committee said ‘he is not a proper man for the position, a Democratic Senate removed him and the eo'mmisriouers who appointed him;’ and t!:e court instructs the jury that our statute defines a IL'I to be the malicious defamation of a person made p~ lie by any printing or writing te^dmg to provoke bin to wrath, or expose him to p-m ,;p hatred, cc t ' or ridicule,- or to deprive him, of the It '.e.Ls of p-b confidence and social i ffercourse, aid if, then fo - believe and find from the evidence that the article admitted to have been published by the defendant of a U concerning the plaintiff had a tendency to provoke him to wrath, or to expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, then the article in question is libelous under the statute.”
Instruction number 5 was as follows: “It is admitted that the defendant published of and concerning the plaintiff the words sued on. If, therefore, the jury believe and find from the evidence that said words, taken all together and considered fairly with their context, and with other facts' proven, were on their face libelous, as elsewhere defined in these instructions, then the jury will find for the plaintiff, even though they may not believe the words sued on are reasonably susceptible of the construction placed upon them by the plaintiff in the innuendoes of his petition.”
Defendant contends that instruction 5 was erroneous because the petition counts on the publication as being a libel when interpreted to mean what it is [91]*91charged to mean in the' innuendo, and that to entitle the plaintiff to fall hack on the words themselves as libelous per se without the innuendo he should have added a second count so declaring.
In Callahan v. Ingram, 122 Mo. 355, the words complained of were “downright thief” applied by defendant to plaintiff, and the innuendo was that the words mean to charge plaintiff with corrupt conduct in his office as superintendent of streets; there was but one count in the petition. The only instruction directing a verdict for the plaintiff in that case was to the effect that if the jury should believe from the evidence that the words “downright thief” as applied to the plaintiff were false the verdict should be for the plaintiff. It was there contended by the defendant that the instruction was' erroneous because it was an abandonment of the meaning plaintiff put on the words in his petition, but the court did not sustain that contention; in the opinion by Macearlane, J., it said: “It will be seen that the office of the innuendo is to set a meaning upon words or language which are of doubtful or ambiguous import and taken alone are not actionable, and it follows that in case the defamatory meaning is apparent from the words used, an innuendo is unnecessary.” But when the words are actionable in themselves, the court said: “In such case the defendant can put in issue the truth of the words spoken, either with or without the alleged meaning. ‘It will then be for the jury to say from the proofs whether the plaintiff’s innuendo is sustained. If not, the plaintiff may fall back upon the words themselves, and urge that, taken in their natural and obvious signification, they are actionable in themselves without the alleged meaning, and that, therefore, his unproved innuendo may be rejected as surplusage.’ ” [Citing authorities.] We see no reason to question that rule. In this case the words complained of, without the clause “did well in [92]*92a legislative way” or even giving that clause the interpretation that defendant would have us give it, come within the statutory definition of libel, section 2259, Revised Statutes 1899, because it says of the plaintiff that he has been adjudged by a committee of the Senate to be not a proper man for the office with which he had been entrusted and that he was by the Senate removed from that office and even those who appointed him were removed, thus “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.”
The study of this instruction brings into consideration a very peculiar and a very important feature of the law of libel, that is, that the jury are the judges of the law as well as the fact. In deciding the ultimate question of libel or no libel the jury have the authority to take not only their own estimate of the evidence but their own opinion as to the law. And since the jury have that right it is the duty of the court to tell them so. It is the duty of the court to give the jury instructions as to the law and if it should give them erroneous instructions whereby the jury is misled, it would be error for which a judgment would be reversed as in other cases. But if the court should instruct the jury that certain words constituted a libel, yet the jury should render a verdict of no libel, they would be exercising the authority which the Constitution expressly gives them, and the verdict could not on appeal be set aside merely on the ground that it was contrary to the court’s instruction. The court in the instruction we are now considering did not tell the jury that these words, independent of the innuendo, were libelous, but told them in effect that they had the right to form their own opinion on that question, bearing in mind the definition of libel given in other instructions, and that if they thought that those words independent of [93]*93the innuendo were libelous they should find for the plaintiff. If the definition of libel referred to was not correct, then the instruction would be misleading and it would be error. But the definition was correct. Therefore, with a correct definition of libel before them and the words complained of before them and the circumstances under which they were used being in evidence before them, why did not the jury have the authority to say whether it was a libel or no libel? What does, the Constitution mean if it does not mean that the jury have that authority? And if they have, how could it be error for the court to tell them so? The defendant itself ashed two instructions on this point which the court gave, which in effect told the jury that though the court might instruct as it pleased, yet they were not bound by the instructions, that they alone had the right to say whether the words constituted a libel or not, and if they thought the words were not libelous they should find for the defendant.
The plaintiff’s instruction is but the converse of the defendant’s two instructions and tells the jury that if they come to the conclusion that the words were libelous they should find for the plaintiff. The defendant’s two instructions are as follows:
2. “The court instructs the jury that in a case of this hind the court can give such instructions as it deems proper, but the jury are not only the sole judges of the weight to be given to the testimony, but under the Constitution and laws of Missouri, the jury are themselves the sole judges of the law of libel and as to whether the alleged publication was libelous, and, if the jury find that the language complained of in this action was not libelous, then the jury should find for the defendant.”
6. ‘ ‘ The jury are instructed that upon the question of libel or no libel the jury in respect thereof are the judges of both the law and the fact, and, so far as this [94]*94question is concerned, they are not bound .by the instructions of the court; and if the jury find and believe from the evidence that the article received in evidence and claimed by the plaintiff to be a libel is not a libel, then the verdict should be for the defendant.”
XIII. In defendant’s assignment of errors there are' 102 errors assigned. We have considered each one of them, but we have in this opinion discussed only those that the learned counsel for defendant seem to consider as most serious. We do not feel justified in carrying this opinion to greater length, and will therefore say that we find nothing in any of the other points that would justify a reversal of the judgment.
The printed record contains nearly 700 pages of extra large size and of brevier type; we have gone with care through it all. The cause was tried with eminent ability by court and counsel on both sides, and although it has given us great labor to review, yet the labor has been lightened by the briefs of the learned counsel.
The judgment is affirmed.
Gantt, G. J., Burgess, Fox and Woodson, JJ., concur; Lannm and Graves, JJ., dissent.