Hall, J.
Under the pleadings the speaking of the words by the defendant did not stand admitted.
Under our code the defendant in an action for slander may in his answer deny the speaking of the words and justify; the denial and the justification are not inconsistent. Proof of one does not disprove the other; proving the truth of the words spoken does not prove the speaking of the words :' and this is .the test of inconsistency. Bliss on Code Pleading, sect. 344, and notes ; Nelson v. Brodhack, 44 Mo. 596; McAdow v. Ross, 53 Mo. 199.
Applying the test to the answer in this case we do not find any inconsistency between the denial and the facts pleaded in mitigation ; proof of such facts would not necessarily prove the speaking of the words charged in the petition, the speaking of the words not having been admitted by the answer was in issue.
In the language of the first instruction given for plaintiff did it stand admitted under the evidence that “ the defendant spoke the words recited in the first count in plaintiff ’ s petition ? ’ ’
• The only words charged in the petition, which it can with any reason be contended that the defendant admitted in his testimony he spoke, are, “I will not keep him (meaning the plaintiff) all summer for I have to watch my pocketbook too close.” Conceding, for the purposes of this opinion only, that the defendant did admit that he spoke such words, what was the effect of such admission?
The petition charged the defendant with speaking of the plaintiff not only the words just referred to, but
[398]*398also the following words, “he stole fifteen dollars from me at one time and ten dollars at another.” The speaking of the words being at issue under the pleadings, it devolved upon the plaintiff to prove the speaking of the words charged, or of such of them as contained the precise charge of slander averred. Proof of other words of substantially the same meaning as the words charged was not sufficient. Christal v. Craig, 80 Mo. 374; Berry v. Dry den, 7 Mo. 324; Birch r. Benton, 26 Mo. 154; Lewis v. MacDaniel, 82 Mo. 582; Burlington v. Meeks, 46 Mo. 220.
It was necessary that an admission made by the defendant of the speaking of any of the words charged ■should have been as broad and comprehensive as the proof required of the plaintiff, in order for the admission to relieve the plaintiff of such proof. Unless the admission was of the speaking of such of the identical words charged in the petition as of themselves constituted the slanderous charge the admission was not an admission of the speaking of the words charged in the petition, and did not relieve the plaintiff of the burden ■of proving the speaking of such words.
The words which the defendant admitted he spoke were not actionable per se; they did not of themselves standing alone impute the crime of larceny to the plaintiff. Christal v. Craig, supra. If extrinsic facts caused those words to so impute such crime they were actionable per se; but in such case it was necessary by prefatory averments to set out in the petition the extrinsic facts. It was not sufficient to make those facts appear by the innuendo, “for it is not the office of the innuendo to make averments, but to apply the words or explain their meaning.” And had such extrinsic facts been averred in the petition it would have been necessary for the plaintiff to prove them. Id.; Legg v. Dunleavy, supra, and cases cited. The petition, had it alleged the speaking of only the words admitted by the defendant, would have been bad, because it contained no averments [399]*399■of the extrinsic facts necessary to make those words impute the crime of larceny to the plaintiff. The allegation in the petition that the defendant spoke such words was surplusage and amounted to nothing. The admission by the defendant that he spoke such words also amounted to nothing. Such admission did not relieve the plaintiff of the burden of proving the speaking of' the other words charged in the petition, the only words which were actionable per se.
Plaintiff’s right to recover rested upon the speaking by the defendant of him of the words, “he stole fifteen dollars from me at one time and ten dollars at another.”' Those words of themselves imputed the crime of larceny to the plaintiff. • It devolved upon the plaintiff to prove that the defendant spoke such of those identical words a^ constituted a charge of larceny against the plaintiff. The defendant did not admit the speaking of any of those words in the answer or in his testimony. It was error for the court to instruct the jury that the speaking of those words was admitted under the pleading and •evidence ; and this error was not harmless, for the reason that the defendant did admit that he spoke the other words charg vi in the first count of the petition, because those other words did not impute the crime of larceny to the plaintiff.
The words laid in the first count of the petition, -which we have said were actionable per se, were slanderous of themselves ; and, if they were spoken as charged, the law implied malice; it was not necessary for the plaintiff to prove malice. Hall v. Adkins, 59 Mo. 148 ; Pennington v. Meeks, 46 Mo. 220. The court properly so held, and properly refused to instruct the jury that unless they found from the evidence that the words were' spoken maliciously they should find for the defendant.
If the slanderous words were spoken by the defendant, the plaintiff was entitled to recover as damages a fair and reasonable compensation for the injury naturally and probably done to him thereby, whether the [400]*400defendant spoke the words with malice in fact or not. Pennington v. Meeks, supra; Lanius v. Druggist Ac. Co., 20 Mo. App. 12; Weaver v. Hendrick, 30 Mo. 502; Buckley v. Knapp, 48 Mo. 162; Birchard v. Booth, 4 Wis. 95; Klinck v. Colley, 46 N. Y. 438.
And, without proof of actual malice, the jury were at liberty to give the plaintiff such exemplary damages as they might have believed it proper for them under all the circumstances of the case to impose as a punishment upon the defendant. Id.
The first instruction given for the plaintiff seems open to the verbal criticism, that by it the jury were told that if they found for the plaintiff they must find exemplary damages. The instructions should, upon a new trial, make it clear to the jury that they may or may not find exemplary damages as they may think right under all the circumstances of the case.
The court gave the defendant more than the law, when it instructed the jury, that, unless they found that-the defendant spoke the words maliciously, they should find for the plaintiff only nominal damages.
The counsel for the defendant contend that, if the facts specially pleaded by the defendant are true, the plaintiff ought to recover nothing in this case. The contention is based upon the idea that those facts constitute not mere mitigation but justification. Hall v. Adkins (supra) and Pasley v. Remp (22 Mo. 407), are cited in support of such contention.
In each of those cases slanderous words were spoken by the defendant, of the plaintiff, charging the latter with.larceny, and the facts upon which such charge was made were stated at the time the words were spoken, and those facts showed that the charge was not true.
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Hall, J.
Under the pleadings the speaking of the words by the defendant did not stand admitted.
Under our code the defendant in an action for slander may in his answer deny the speaking of the words and justify; the denial and the justification are not inconsistent. Proof of one does not disprove the other; proving the truth of the words spoken does not prove the speaking of the words :' and this is .the test of inconsistency. Bliss on Code Pleading, sect. 344, and notes ; Nelson v. Brodhack, 44 Mo. 596; McAdow v. Ross, 53 Mo. 199.
Applying the test to the answer in this case we do not find any inconsistency between the denial and the facts pleaded in mitigation ; proof of such facts would not necessarily prove the speaking of the words charged in the petition, the speaking of the words not having been admitted by the answer was in issue.
In the language of the first instruction given for plaintiff did it stand admitted under the evidence that “ the defendant spoke the words recited in the first count in plaintiff ’ s petition ? ’ ’
• The only words charged in the petition, which it can with any reason be contended that the defendant admitted in his testimony he spoke, are, “I will not keep him (meaning the plaintiff) all summer for I have to watch my pocketbook too close.” Conceding, for the purposes of this opinion only, that the defendant did admit that he spoke such words, what was the effect of such admission?
The petition charged the defendant with speaking of the plaintiff not only the words just referred to, but
[398]*398also the following words, “he stole fifteen dollars from me at one time and ten dollars at another.” The speaking of the words being at issue under the pleadings, it devolved upon the plaintiff to prove the speaking of the words charged, or of such of them as contained the precise charge of slander averred. Proof of other words of substantially the same meaning as the words charged was not sufficient. Christal v. Craig, 80 Mo. 374; Berry v. Dry den, 7 Mo. 324; Birch r. Benton, 26 Mo. 154; Lewis v. MacDaniel, 82 Mo. 582; Burlington v. Meeks, 46 Mo. 220.
It was necessary that an admission made by the defendant of the speaking of any of the words charged ■should have been as broad and comprehensive as the proof required of the plaintiff, in order for the admission to relieve the plaintiff of such proof. Unless the admission was of the speaking of such of the identical words charged in the petition as of themselves constituted the slanderous charge the admission was not an admission of the speaking of the words charged in the petition, and did not relieve the plaintiff of the burden ■of proving the speaking of such words.
The words which the defendant admitted he spoke were not actionable per se; they did not of themselves standing alone impute the crime of larceny to the plaintiff. Christal v. Craig, supra. If extrinsic facts caused those words to so impute such crime they were actionable per se; but in such case it was necessary by prefatory averments to set out in the petition the extrinsic facts. It was not sufficient to make those facts appear by the innuendo, “for it is not the office of the innuendo to make averments, but to apply the words or explain their meaning.” And had such extrinsic facts been averred in the petition it would have been necessary for the plaintiff to prove them. Id.; Legg v. Dunleavy, supra, and cases cited. The petition, had it alleged the speaking of only the words admitted by the defendant, would have been bad, because it contained no averments [399]*399■of the extrinsic facts necessary to make those words impute the crime of larceny to the plaintiff. The allegation in the petition that the defendant spoke such words was surplusage and amounted to nothing. The admission by the defendant that he spoke such words also amounted to nothing. Such admission did not relieve the plaintiff of the burden of proving the speaking of' the other words charged in the petition, the only words which were actionable per se.
Plaintiff’s right to recover rested upon the speaking by the defendant of him of the words, “he stole fifteen dollars from me at one time and ten dollars at another.”' Those words of themselves imputed the crime of larceny to the plaintiff. • It devolved upon the plaintiff to prove that the defendant spoke such of those identical words a^ constituted a charge of larceny against the plaintiff. The defendant did not admit the speaking of any of those words in the answer or in his testimony. It was error for the court to instruct the jury that the speaking of those words was admitted under the pleading and •evidence ; and this error was not harmless, for the reason that the defendant did admit that he spoke the other words charg vi in the first count of the petition, because those other words did not impute the crime of larceny to the plaintiff.
The words laid in the first count of the petition, -which we have said were actionable per se, were slanderous of themselves ; and, if they were spoken as charged, the law implied malice; it was not necessary for the plaintiff to prove malice. Hall v. Adkins, 59 Mo. 148 ; Pennington v. Meeks, 46 Mo. 220. The court properly so held, and properly refused to instruct the jury that unless they found from the evidence that the words were' spoken maliciously they should find for the defendant.
If the slanderous words were spoken by the defendant, the plaintiff was entitled to recover as damages a fair and reasonable compensation for the injury naturally and probably done to him thereby, whether the [400]*400defendant spoke the words with malice in fact or not. Pennington v. Meeks, supra; Lanius v. Druggist Ac. Co., 20 Mo. App. 12; Weaver v. Hendrick, 30 Mo. 502; Buckley v. Knapp, 48 Mo. 162; Birchard v. Booth, 4 Wis. 95; Klinck v. Colley, 46 N. Y. 438.
And, without proof of actual malice, the jury were at liberty to give the plaintiff such exemplary damages as they might have believed it proper for them under all the circumstances of the case to impose as a punishment upon the defendant. Id.
The first instruction given for the plaintiff seems open to the verbal criticism, that by it the jury were told that if they found for the plaintiff they must find exemplary damages. The instructions should, upon a new trial, make it clear to the jury that they may or may not find exemplary damages as they may think right under all the circumstances of the case.
The court gave the defendant more than the law, when it instructed the jury, that, unless they found that-the defendant spoke the words maliciously, they should find for the plaintiff only nominal damages.
The counsel for the defendant contend that, if the facts specially pleaded by the defendant are true, the plaintiff ought to recover nothing in this case. The contention is based upon the idea that those facts constitute not mere mitigation but justification. Hall v. Adkins (supra) and Pasley v. Remp (22 Mo. 407), are cited in support of such contention.
In each of those cases slanderous words were spoken by the defendant, of the plaintiff, charging the latter with.larceny, and the facts upon which such charge was made were stated at the time the words were spoken, and those facts showed that the charge was not true. In those cases it was held, if the defendant honestly believed that the facts and circumstances attending the taking of the property constituted larceny, and so believing and without malice he spoke the words charged only to those to whom he communicated the facts con[401]*401stituting in his opinion the crime charged and upon which he based the same, that then the plaintiff could not recover, because the defendant had sent an antidote along with the poison and had shown a mistaken view of the law rather than a malicious purpose.
Those cases are based upon the facts narrated by the defendant at the time he spoke the slanderous words and in connection therewith showed that the plaintiff was not. guilty of the crime charged. Those cases do not support the contention made for the defendant here, because the facts pleaded by the defendant, if true, tended to-show that the plaintiff was guilty of the crime charged. For the very reason that the facts in the cases cited constituted justification, the facts pleaded by the defendant in this case do not constitute justification. The facts in those cases 'were ah antidote for the poison of the slander ; the facts in this case give an additional strength to the poison of the slander. The use of the word preponderance in an instruction has been criticised by the supreme court of this state, and has been held to be reversible error by this court in one case where the circumstances were peculiar. Carson v. Porter, 22 Mo. App. 185. It would be well upon a a new trial for the court not to use such word in its instructions.
Except for the use of the word “preponderance” in the fourth instruction given for the plaintiff we perceive no error in that instruction. Having pleaded the facts which he claimed mitigated his wrong, the defendant was bound by the facts thus pleaded. He was entitled to no benefit from any other mitigating facts. If the facts as pleaded were true, if the defendant lost his money under the circumstances stated, if he was induced thereby to beliéve and in good faith did believe that the plaintiff stole his money, and if he so stated without actual or express malice, he was entitled to have the jury consider all those facts in mitigation, in determining whether they ought to give any, and, if any, What exemplary damages. But [402]*402if the defendant did not lose his money at all, or if he :did lose his money, but not substantially in the manner ;and under the circumstances pleaded, he was not entitled to have the jury consider any facts in mitigation. .He was not entitled to have the jury consider the facts ' pleaded, because they were not true, and not other and i different facts because they were not the facts pleaded. .Besides, the least punishment that should be imposed mpon the defendant for pleading facts as true, that were not true, which, if true, had a tendency to establish the, plaintiff’s guilt of the crime imputed by the slanderous words, is that no facts should be considered in mitigation of his wrong.
The same may be said in relation to the third instruction given for the plaintiff. And as to that instruction we may add that although the facts pleaded might have been true, and although the defendant might have believed in good faith that the plaintiff stole his money, still, if the defendant spoke the words charged for the purpose of injuring the plaintiff, the defendant was not entitled to have those facts or his belief based thereon considered in mitigation.
The court instructed the juiy that the law presumed the plaintiff was innocent of the crime imputed to him by the words charged in the petition. Objection is made here to that instruction. Not only was the instruction prop.er, but under the pleadings the innocence of the plaintiff was not in issue. Bliss on Code Pleading, sect. 361.
In conclusion we may add this. It may be, and doubtless is true that the jury under the evidence would have found that the defendant spoke the words charged in the petition. But the speaking of the words was an issue of fact, and upon that issue the defendant was entitled to the opinion of the jury.
For the error indicated the judgment is reversed and the cause remanded.
Ellison, J., concurs; Philips, P. j., not sitting.