Appeal from circuit court, Jackson county; R. H. Field, Judge.
MACFARLANE, J.
Action for slander. The petition charged that on the 4th of November, 1889, plaintiff was appointed superintendent of streets of Kansas City, which was an office of honor and trust, under the charter and ordinances of said city; that on said date, at a meeting of the common council of said city, in the presence of divers persons (naming other members of said council, and the clerk thereof, and other persons), then present, defendant "falsely and maliciously spoke and published of and concerning the plaintiff the false and malicious words following, to wit: `Now, I want to say something, and I want the reporters to get it. The superintendent of streets — this Callahan — is a downright thief, and I can prove it.'" The petition further charged that at the time the words were spoken there was not then pending before said council any ordinance, motion, resolution, or report referring to plaintiff, or the office so held by him; "that defendant meant and intended, by the use of said words so spoken and published by defendant as aforesaid, to charge plaintiff with being guilty of willful, corrupt, and malicious oppression, partiality, misconduct, or abuse of authority in his official capacity, as such superintendent of streets, or under color of his said office. Plaintiff further states that at the time said words were so spoken by defendant the defendant well knew the same to be false, and said words were so spoken by defendant wantonly and maliciously, and with the intention of injuring plaintiff; that the words spoken were false, and plaintiff was greatly injured in said office, and in his feelings, good name, and reputation." The answer was a general denial, and a special plea as follows: "For a second and further answer to plaintiff's amended petition, defendant says that, at the time the supposed defamatory words were spoken by defendant, the lower house of the common council of Kansas City, being regularly in session, were discussing the office of superintendent of streets, and the actions and methods of Superintendent Callahan, the plaintiff. It had been stated by different members of the council that he was an inefficient and incompetent officer, and had been guilty of misconduct, oppression, partiality, and abuse of authority, in his official capacity. During this discussion the defendant, in the discharge of his duty as a member of said common council, in discussing the official conduct of plaintiff, stated that the resolution previously introduced by him to investigate the city officials was aimed at Superintendent Callahan; that said Callahan, in his official position, as inspector of curbing, had condemned curbing that was being put in by one party, and permitted another man, a favorite of said superintendent, to put in the same stone, entailing loss on the first man, and bestowing official favors on the second; that he had also given acceptances for curbing put In by one man to another, knowing at the time he gave the acceptances that the person to whom he gave them had not done the work, and was not entitled to them, thus enabling the second man to collect pay for work done by the first, and defrauding one man to put money into the pocket of a favorite of said Callahan. Defendant, in stigmatizing such conduct as dishonorable and dishonest, applied the term `downright thief,' to said superintendent. Defendant says that this statement was made in the discharge of his official duty, as above set forth, and without malice or ill will to plaintiff, and that he had good reason to believe, and did believe, that the statements he made were true, and that the opprobrious epithet he used was a just and fair characterization of such official misconduct. Defendant further states that the circumstances above referred to are as follows: In June, 1887, John Henry had a private contract to put in about 82 feet of curbing for F. J. Baird on Twentieth street, between Southwest boulevard and Broadway; that said Henry did said work, and put in said curbing, and said Callahan, though knowing that said Henry had done said work, issued acceptances to one Bashford; that, in the fall of 1887, Johnson and Tompkins were putting in curbing on Sixteenth street, between Penn and Broadway, and that they got the curbing of Richard Cummins; that said Callahan condemned some of said stone, and said Cummins sold it to one Bashford, and Callahan allowed him to use it for curbing on another street." The reply was a general denial.
The evidence showed that plaintiff was on the 4th day of November, 1889, superintendent of streets, and defendant was a member of the city council; that defendant had previously held the office of inspector of curbing and sidewalk construction; that, some time previously, defendant had introduced in the lower house of the council, of which he was a member, a resolution bearing on plaintiff's official conduct, which had passed that house, and gone to the upper house, where it then remained undisposed of. On this occasion a member raised a question of privilege, and a general discussion and criticism of plaintiff's official conduct followed, in which defendant spoke the words attributed to him, making special reference in what he said to the alleged misconduct set up in his special plea. At the time no resolution, ordinance, motion, or report was before that house, respecting plaintiff, or his official conduct. On the trial, defendant offered to prove that those present, who heard defendant's language, understood it to refer to official misconduct of plaintiff in the matters referred to. He also offered to prove the reasons and motives which induced him to speak of plaintiff as he did. These offers were refused by the court. Defendant, in support of his special plea, undertook to prove that, while plaintiff was inspector
of curbing, he issued to one party a certificate for curbing put in by another. Under the ordinances, the engineer was required, after completion of work by the owner of the property charged therewith, to grant a certificate of the fact, which, when filed, exonerated the owner from liability to pay for the improvement. Defendant offered in evidence a certificate of that character, which showed that the measurement had been made by plaintiff as inspector, but without designating who had done the work. The court refused to permit this certificate to be read in evidence.
At request of plaintiff, the court gave the jury the following instructions: "(1) The jury are instructed that if they believe from the evidence that on November 4, 1889, the plaintiff was acting as superintendent of streets of Kansas City, and that defendant, Ingram, was a member of the common council of Kansas City, and at a meeting of the lower house of the common council, and in the presence of various people, the defendant maliciously used the following language of and concerning the plaintiff in his character of superintendent of streets, namely: `Now, I want to say something, and I want the reporters to get it. This superintendent of streets — this Callahan — is a downright thief, and I can prove it,' — and if the jury further believes that said language was false and untrue, then the said jury should find for the plaintiff. (2) Malice does not consist alone in personal spite or ill will, but it exists, in law, wherever a wrongful act is intentionally done without just cause or excuse. (3) The court instructs the jury that the defendant is not protected in this action from liability for the words used by him against plaintiff by reason of having uttered them in the chamber of the lower house of the common council of Kansas City. (4) The jury are instructed that, in making their verdict, they may take into consideration all the facts and circumstances as detailed by the witnesses; and if the jury find for plaintiff, in estimating the damages which they may think plaintiff has sustained, the jury may take into consideration, and allow the plaintiff for, the mortification to his feelings, suffered from the act of defendant complained of, and may add thereto, as punitive damages, such amount as will...
