BRADLEY, J.
This is an action for libel. The cause was tried before the court and a jury, and judgment went for plaintiff for $800 actual damages, and defendant appealed.
The cause was filed against defendant Zorn and N. F. McCallon, but at the close of the case a demurrer was sustained as to McCallon and he went out of the case.
Defendant is editor and publisher of the Howell County Gazette, a Democratic weekly newspaper printed and published at West Plains in Howell county. September 4, 1924, there appeared in defendant's paper the article complained of. At the time plaintiff was sheriff and his son-in-law, Fred W. Juern, was a candidate for sheriff on the Republican ticket. The article upon which the alleged libel is founded is as follows:
"Booze at Religious Revival Arouses Citizens Who Make Protest in Vain.
"The protracted meeting held by Rev. Laramore in the Christian church at Moody continues. A few nights after the meeting began some of the boys in attendance showed signs of intoxication and acted rather queerly. After the close of services two empty fruit jars that had contained moonshine liquor were found outside the church. This is the report brought to West Plains Wednesday by N. F. McCallon, one of the elders of the church.
"`I wrote a letter to the prosecuting attorney about this matter,' said Mr. McCallon. `I wrote another letter to the sheriff, but neither one of them answered me or paid the least bit of attention to the matter. There is somebody selling booze in our neighborhood, and we want the authorities to investigate it, and if they don't do it we will have it done after the first of next January, when there will be a change in affairs in this county,' said Mr. McCallon.
"From Pottersville comes the same kind of reports. At the Odd Fellows' picnic at Pottersville recently there were several drunks on the grounds. An officer from West Plains was present, but made no effort to see if he could find out where the liquor came from.
"The people of Howell county want a change and will get it in November."
Defendant filed a demurrer to the petition, which demurrer alleged that the petition did not state facts sufficient to constitute a cause of action, and that the article published was not libelous. The demurrer was overruled, and defendant answered by a general denial and as follows:
"Defendant, further answering, admits that plaintiff was at the time alleged in the petition sheriff of Howell county, and that the defendant Will H. Zorn was editor and publisher of the Gazette, as alleged; that the said defendant published the article of September 4, 1924, as set out in the petition, but defendant says that the same was only fair and proper comment on a matter of public interest; that by reason of the fact that plaintiff was a public official having to do with enforcement of the law in Howell county, and the defendant being an editor of a newspaper, renders said publication of fair, just and legitimate comment on the matters therein stated; that said publication did not impute to the plaintiff any willful malfeasance, dishonesty or corruption in office that would bring upon him infamy as a public official; that under the law, the plaintiff was not in duty bound or required to answer letters or communications of the kind mentioned in said article; that for the reason aforesaid said article was a qualified privilege and constitutes no, libel of the plaintiff.
"Defendant, further answering, says that said' publication was made by him in good faith and
with the understanding that he quoted the exact language of his informant N. F. McCallon; that the said article was published with the honest belief in the truth of the statements so made, and defendant charges the said statements were and are the truth.
"Defendant says that the course and conduct of the plaintiff with reference to the enforcement of the Prohibition Law and other laws in Howell county, as known to plaintiff and reported to him by others, contributed to his belief in the truth of the statements as he understood them to be detailed by N. F. McCallon; that he knew personally, and had often heard it stated by other citizens, that the said plaintiff failed to enforce the liquor laws in this county; that during said year and prior thereto, the plaintiff had permitted the county to become filled with illicit stills, and booze peddlers plied their trade on every hand; that the plaintiff demanded and exacted of the county court large sums of money in excess of his salary and fees as an inducement to do his duty in respect to the enforcement of the Prohibition Law; that the plaintiff demanded and exacted of said court the sum of $500 per year extra above his salary and legal fees for the performance of his duty in that respect; that said sum or sums of money were paid to the plaintiff illegally and without any right, warrant or authority of the county court to pay the same, and it was a violation of the law for plaintiff to demand or receive the same; that after the county court had ceased to pay the illegal demands of the plaintiff, conditions again grew worse in respect to the enforcement of the liquor laws, and the plaintiff had relaxed greatly in his efforts to enforce the law.
"Defendant further says that he had heard of numerous instances in which there was drunkenness and disturbances in various parts of Howell county of which no cognizance had been taken by the sheriff; that one of the said disturbances in which there was drunkenness occurred at Moody at a meeting held by Rev. A. W. Selby; another occurred at a meeting held by Rev. Selby at Amy; one occurred at Mt. Zion at a meeting held by Rev. Brazeal, in which eggs were thrown through the window and splashed on members of the choir; that one occurred at a meeting held by Mrs. Nora White at Davis Creek; that one occurred at Antioch at a meeting held by H. N. Baker and one at West Liberty near Willow Springs, at a Christmas exercise; and other failures had been talked of and reported to plaintiff.
"Defendant further says that by reason of the matters and things aforesaid he was not only warranted in believing the statements as he understood them to be made by N. F. McCallon, but also believed it to be his duty as an editor of a newspaper to publish the facts given in order to stir up action in such matters and to bring about a better enforcement of the antiliquor laws in this county; that an election was on, and a deputy under the said sheriff was a candidate for that office, and the public was entitled to know of such occurrences as they might be better able to judge of the fitness of the respective candidates."
It does not appear that any reply was filed, but no question is raised in that respect.
Error is assigned on (1) the overruling of the demurrer to the petition; (2) on the refusal of a demurrer at the close of the case; (3) on the admission of evidence; and (4) on the instructions.
McCallon. as a witness for defendant testified that on July 15th he wrote plaintiff "about some fellow being drunk at church"; that the main part of the letter was about appointing a deputy; that on August 20th he again wrote plaintiff "'bout some fellow making a proposition to sell some liquor," and "told him if he and Fred come down we could catch onto something: I didn't tell him who the party was; just wrote him what a fellow told me." McCallon also says that he again wrote plaintiff on the evening of September "the first and mailed it on the morning of the second." McCallon further testified that he was in West Plains on September 3d and talked to defendant, and that if plaintiff had replied to his letter of September 1st he would not have received it until after his return from West Plains on the 3d. McCallon also testified that neither the letter of July 15th or August 20th mentioned "fruit jars with whisky being in them, for that hadn't come up yet." Defendant testified that he met McCallon at the courthouse in West Plains and asked him—
"how the meeting was getting along; I wanted to know so I could write an article about it for the paper. He told me they were having quite a lot of disturbance, and they had found some empty fruit jars in which there had been whisky outside the church. He said he had written the officers about it and hadn't heard from them. * * *
"Q. What, if anything, was said in that conversation about you publishing these matters? A. I didn't say anything about it, only I wanted to get a news item about the meeting down there. * * * I published the article of my own initiative. I thought the people ought to know it, and I believed it to be the truth. Mr. McCallon has always been truthful with me. I have been connected with him in the bank down there, and he has always been truthful and reliable.
"Q. The other part of the article referring to the Pottersville picnic affair, did you have any information of that affair? A. Yes, I was down at the Hollingshad garage, and Ben (Hollingshad) said there were several drunks at the Pottersville picnic and said there was an officer there and nothing done about it. I had received this information before I wrote and published the article in question. At the time I published this article I had heard of other disturbances over the county and complaints about the liquor law; had heard of a number of them before and quite a few afterwards."
Defendant contends that the article was qualifiedly...
