ON MOTION FOR REHEARING.
Defendant has filed a motion asking the court to modify its judgment remanding this cause for another trial and to order that it be merely reversed. The principal ground relied upon in support of the motion is that the slanderous words, under the evidence in plaintiff’s behalf, were privileged, or, at least, quasi privileged. The ground of privilege claimed is that the words were uttered in a necessary communication from one physician to another concerning a patient. We are cited to Tilles v. Publishing Co., 241 Mo. 609, but it is without application to this case. We think it is quite clear that no question of privilege arose under the testimony. The evidence supporting the charge against defendant in no way involved any question of privilege. It showed that defendant is a woman physician residing in Kansas City and that the family of her parents resided on a farm some distance in the country. That plaintiff, residing also in Kansas City, is the mother of a young man who was visiting, or staying, with the family on that farm and that he had injured his leg so severely that it was afterwards amputated. When hurt he was brought to Kansas City for surgical treatment. At the time of his arrival there, perhaps before he had been taken to his mothers (plaintiff’s) home, defendant called on witness Pearce, a surgeon in that city. It seems that a custom or courtesy, exists between physicians that they will render services gratuitously to the families of those in the profession. So, as Pearce testified, when defendant called on him, she said to him, “that she had a boy *336whom she thought a great deal of, who was badly injured, and was not being very well taken care of; and I expressed some surprise about her having a child, and she told me that it was not her own natural child, but that it was an adopted child. ’ ’ It was at this point the slanderous words were uttered by defendant and •she continued to say that she had taken care of him until he was old enough to work when he was hired out to a family, where he got his foot caught in the belt of a circular saw, drawing his leg in and they were bringing him to Kansas City. “She wanted to know what it would cost to take the case and perform any operation that might be necessary, and I told her it would cost nothing at all if the boy was her boy. I told her that there would not be any charge for physicians did not render bills for services in one another’s families—but I did not have to tell her that, for she knew the rule as well as I did. ’ ’
As was stated by the trial court, we cannot understand where there is any room to excuse a slander by the guise of privileged communication under this evidence. If we look to defendant’s own testimony of course no excuse of privilege is found, for she denies saying what she is charged with, or anything at all like it. And manifestly there was no information in the words of the slander which, under the testimony of Pearce, would enable him to understand anything of the nature of the treatment it would be necessary to render the young man. Equally is it manifest that the information conveyed in the slanderous words could have nothing'to do with the gratuitous services of Pearce. TIis offer of service without charge was called out by the statement to him by defendant that the patient was her son and when he expressed surprise that she had a son, she covered every possible necessity of explanation by the statement that he was her adopted and not her natural child. Where was the necessity for the words of slander? Her reason for adopting *337him years' before, had no connection with the matter in hand and could serve no purpose. It was voluntary and uncalled for defamatory matter.
In Sullivan v. Com. Co., 152 Mo. 268, 277-279, the Supreme Court quotes this from Odgers on Libel and Slander: “In making a communication which is only privileged by reason of its being-made to a person interested in the subject-matter thereof, the defendant must be careful not to branch out into extraneous matters with which such person is unconcerned.”
In Robnett v. Ruby, 13 Md. 95, a husband asked the defendant if he' suspected his wife and daughter of stealing his money. Defendant answered that he had, “but that he did not suspect them now, because circumstances had lately occurred which took away those suspicions;” and added these slanderous words, “the girl that hired with us has got it.” In an action by the girl it was held that these words were not privileged, the court stating that “It could not be necessary to charge the plaintiff with the theft in order to satisfy Purlow (the husband) that his wife and daughter were relieved from the accusation. ’ ’ And added that “None of the authorities cited by the appellee, authorize us in saying that the defendant was privileged in making the charge. ‘Even where the communication is in it’s nature privileged, the scope of the defamatory matter must not exceed the exigency of the occasion.’ [Cooke on Defamation, 35, 36].”
In York v. Johnson, 116 Mass. 482, the plaintiff was a female singer in a church choir and the defendant was a male member of the board of stewards in the church. There was to be a Christmas festival for the Sunday School and a committee was chosen, plaintiff and defendant and one Walton being members. Defendant declined to serve and a Mrs. Newton, also one of the committee, asked him why. He refused to answer, and the next day she asked him again and *338he still refused to answer; but on the following day she again urged him to tell his reasons, saying “that she knew that the fact that Walton and the plaintiff were on the committee was the reason and with a good deal of feeling wanted to know what he knew with reference to them why they were not suitable persons to be on the commitee.” Defendant then said to her “Walton has got the clap;” and Mrs. Newton’s curiosity getting the better of her modesty, asked him, “Where he, Walton, got it;” and he answered, “My informant said he did not know, but that he, Walton, had been with Mrs. York,” the plaintiff. In an action for slander by Mrs. York, it was ruled by the trial judge and the Supreme Court on appeal, that the information thus given by defendant was not privileged. The latter court saying, “There was no duty which he owed to Mrs. Newton that authorized him to inform her of defamatory charges against the plaintiff, and no interest of his own which required protection that justified it. He had declined to serve upon the same committee with Mrs. York but he was under no obligation to give any reason therefor, . . . .”
The propriety of instructions can be gathered from what we have written. While instructions as to there being a presumption of malice should be omitted, and that matter be left as a question of proof, yet the evidence on that head, as in other cases, may consist of circumstances and reasonable inferences to be' drawn from the facts proven.
We are not inclined to heed defendant’s suggestion that the judgment should be reversed without remanding, on the ground that the jury must have found that there was no malice. Defendant denies speaking the words, but if we concede that plaintiff shows she did speak them and that proof is made of the extrinsic facts alleged it is not seen how the inference of malice could be resisted.
The motion for rehearing is overruled.