*481ON REHEARING.
ELLISON, P. J.A reconsideration of this case has left ns convinced that onr disposal of it at the other hearing was correct. But as defendant insists that the opinion rendered at that time approves plaintiff’s instruction No.' 2, and that said instruction wrongly affirms that defendant by its answer* had admitted that the publication was of and concerning the plaintiff, when in fact the answer did not make such admission, we will add the following to. what has been said. Defendant’s answer in the respect here involved is not as clear as could be' wished. It, in terms, admits it published the article as set out in the petition, but denies that it was false- or defamatory, or that it was a libel on plaintiff; - “and denies each and every other allegation in plaintiff’s petition.” And “that said article so published by it is substantially true in so far as it refers to plaintiff; that is, it is true, as stated in said article that plaintiff did maintain .a baby farm” etc., setting out a small part of the publication which defendant insists was all which concerned the plaintiff. Instruction No. 2 does state, in effect, that defendant pleads, or admits, that all the statements in' the publication are true, and that they were made, of and concerning the plaintiff. So this last. clause, thus embodied in the instruction, is erroneous; for it, in effect, states that defendant admits that the whole article was of and- concerning the plaintiff.
But there is no rule oftener stated than that though an instruction contains error, the judgment will not, for that reason, be reversed if it be manifest that the error was harmless.
It is clear that notwithstanding the court erred in stating defendant admitted that the entire article referred to plaintiff, yet, if in point of fact, the entire article, in all material respects, without ambiguity, did refer to plaintiff and, upon its face, showed it was published “of and concerning” her, then no harm could result from stating that defendant admitted it.
*482We will therefore proceed to inquire whether other parts of the article than the part confessed by defendant, did undoubtedly and unequivocally refer to plaintiff. The entire article as published, is set out in Judge Johnson’s opinion and it seems to us need .only to be read to show, without ground for difference of opinion, that it referred to plaintiff. In the first place the article is headed in capital type that a baby farm had been “found” in an apartment. That plaintiff and a doctor were arrested and that the “woman was well known to the police’.’ and that she or they (no difference which) “Formerly ran a home for babies on west side.” That (partly in capital type): “BODIES OF SIX INFANTS FOUND IN KANSAS CITY SEWERS RECENTLY. UNABLE TO TELL THE POLICE HISTORY OF ANY CHILD IN HER CHARGE; WOMAN DENIES RESPONSIBILITY FOR DEATH OF CHILDREN; ONE BABY DEAD; ANOTHER DYING AT ST. ANTHONY’S HOME.
“Pursuing their investigations into the finding of six dead babies within the last few. months in sewers in the neighborhood of Thirteenth and Fourteenth and Harrison Streets, the police last night went into the apartments of Mrs. Mary Rail, alias Miss Chardis Lundin.”.
Then after stating that plaintiff and the doctor were arrested on a charge of violating a city ordinance governing the birth and death of infants, there is a subheading in capital type, viz., “DENIES KNOWLEDGE OF OTHERS FOUND DEAD,” followed by this: “When questioned about the bodies of the six babies taken -from the sewers in that neighborhood during the last few months, the woman said she knew nothing about them-. She refused to tell the officers of any persons with whom she had found homes for the little ones left in her care. She would not give the history of any particular baby — where she got it, what she did with it, who was its mother or who had adopted it. Nothing that she said served to clear up the mystery which the police have been working upon for *483many months.” Then after reciting matters tending to discredit her alleged story to the police, it is said that she “formerly operated a baby farm at 1735 Washington Street. The police knew about her then but she was never molested. More than a year ago the woman moved to the Tencrede Apartments, at 1515 Harrison Street, but it was not suspected until recently that she was again trafficking in babies.” Then after describing the apartment, it is stated in the article that persons in other apartments in the house never saw plaintiff “taking babies in or out, they said, and the police supposed she transported the babies at night by way of. the back stairs.”
In the light of these quotations, it is not seen how anyone can say, .and be in earnest about it, that the article did not refer to plaintiff. But the argument accompanying defendant’s motion for rehearing seems to imply that if a defendant denies anything, no matter if it is a denial that there are seven days in a week, plaintiff must prove it. A denial of anything which may be questioned does call for proof. But denial of a patent fact, appearing on the record does not. Here the face of defendant’s answer conceding that while containing a denial that any but a small part of the article concerning her arrest, referred to plaintiff, admits it published the article and asserts that it was true. So that, as above intimated, the only thing loft to consider outside this, is to ascertain if such article on its face, without ambiguity, referred to plaintiff. And having found that it did, the error in plaintiff’s instruction was harmless.
That part of the publication which defendant in its answer admitted had reference to plaintiff was a statement of the fact of her keeping a baby farm and her arrest for violating a city ordinance relating to the births and deaths of children. This we readily concede was privileged, relating, as it did, to a public court proceeding. There is thus left the question whether the remaining part is libelous per se. The statute (sec. 4818, R. S. 1909) defines a libel to he, “A malicious *484defamation <jf a person made public by any printing . . . tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or io deprive him of the benefits of public confidence and social intercourse, . . . It will be seen by reference to the article pleaded, as set out in Judge Johnson’s opinion, that innuendoes are set forth whereby it was alleged that defendant intended to be understood as charging plaintiff with crimes, including murder. But it appears that at the trial these were abandoned by the plaintiff and the case left to stand upon the words of the publication free from explanation. The law is that if the-words published' are -libelous without .the aid of an innuendo, then matter of innuendo pleaded may be treated as surplusage. [Callahan v. Ingram, 122 Mo. 355; Julian v. Kansas City Star, 209 Mo. 35, 91; Cook v. Globe Democrat Printing Co., 227 Mo. 471, 526.]
In considering whether the article, stripped of the innuendoes, was libelous per se, we should treat plaintiff as innocent of the statements published of and concerning her and then answer, not whether she was charged with a crime for that is not a necessary requisite to libel, but whether such statements would, in the language of the statute, tend to expose her to public hatred and contempt, or to deprive her of the benefits of public confidence, or social intercourse. If they do, they are actionable. [Cook v. Globe Printing Co., 227 Mo. l. c. 529; Starkie on Slander & Libel, 231, 232.] Manifestly, the article cast suspicion upon plaintiff as one who threw bodies of babies into sewers, if not herself murdering them, and that she was so suspected by the police. That she was known under an alias; that she was what was known as a police character and that she trafficked in motherless babies, carrying them in and out of her house ,by back stairs in the nighttime. If this was hot true, it would be difficult to state a more aggravated libel.
Plaintiff’s instructions are attacked by defendant, especially No. 2 and, as already stated, it was for some *485supposed fault with them that the trial court granted a new trial. We think that save in the respect we have ruled to he harmless, instruction No. 2 is correct. It required defendant to prove the truth, not of all the •statements complained of and published, whether material or not, but of all the statements “found from the evidence to be false and a libel upon plaintiff.” That is held to be a correct proposition of law. [Cook v. Globe Printing Co., 227 Mo. 471, 531; Meriwether v. Knapp Co., 120 Mo. App. 354, 385, 386.] In this respect the instruction is different from that condemned in Reynolds v. Knapp & Co., 155 Mo. App. 612, 618.
But here again appears defendant’s dominating idea that since it denied that the article referred to plaintiff except the small portion of it set out in the answer, and since it justified as to that small part, therefore the cases just cited were not applicable. But defendant’s denial in connection with it’s admission, we have already shown amounts to no more than if it should deny the alternation of the seasons. It admitted it published. the whole article and alleged the whole article was true, but denied that it referred to plaintiff, except in the part concerning the bahy farm and the arrest. We have already shown that its denial was in the face of the-patent fact that the balance of the article, in all material respects, did refer to plaintiff. Hence, so far as it concerns the result, defendant is in the exact position it would have been had it admitted that the whole article, in all material respects, referred to plaintiff and justified by alleging, as it has, that it was the truth.
Plaintiff’s first instruction is a. correct statement of the law and what we have said shows it was properly given in this case.
It follows that the judgment must be reversed and the cause remanded with directions to set aside the order granting a new trial and to enter judgment for plaintiff in accordance with the verdict.
Johnson and Trimble, JJ., concur in separate opinions.