DISSENTING OPINION.
WOODSON, J.This is a suit brought by thé plaintiff against the defendant to recover $25,000 damages, sustained by him in consequence of the publication, by the latter, of the alleged libelous article set out in the petition.
A demurrer to the petition was filed and sustained, and by leave of court an amended petition was filed by plaintiff. The defendant filed a motion to strike this petition from the files, for the reason that the amended petition was but a replica of the original, which had been held bad on the first demurrer filed. Said motion also contained a general demurrer. This motion and demurrer were by the court sustained; and the plaintiff declining to plead further, judgment was duly rendered against him and in favor of the defendant. Prom that judgment the plaintiff' duly appealed to. this court.
The amended petition, which the court adjudged bad, reads as follows:
*435“Now comes Joseph Diener, plaintiff in the above entitled canse, and files this his second petition, and for canse of action states that the defendant, Star-Chronicle Publishing Company, was and is at all times hereinafter mentioned a corporation duly organized and existing under the laws of the State of Missouri. That at the time hereinafter mentioned said defendant was the publisher, proprietor and printer of a certain daily newspaper of large circulation in and about the city of St. Louis, which said newspaper is published in the city of St. Louis, State of Missouri, and is known as the ‘St Louis Star-Chronicle
“That on, to-wit,. the 5th day of May, 1906, there was printed and published in said newspaper the following false, defamatory and libelous article or language of and concerning the plaintiff, to-wit:
AND THE CHILD SAID NOTHING. The Coroner’s investigation into the death of little Gertrude. Copeland, who was TORN TO PIECES by Health Commissioner Bond’s automobile, held the dead child guilty of contributory negligence, and in this way released the chauffeur from legal responsibility, as far as a Coroner’s quest can., What chance on earth was there that it should have done anything else?
Coroner Baron had already decided that Chauffeur Diener WAS IN NO WAY RESPONSIBLE for the killing by ordering the police to turn him out free on the night of the arrest, without a charge or a bond to hold him.
The Coroner took this action on the pledge of the Health Commissioner that he was sure the chauffeur was in no way to blame for the awful death.
The police acted on the written order of the Coroner.
To hold Chauffeur Diener directly responsible for the killing now would be to hold the police department, the Health Commissioner and the Coroner responsible for the atrocious act of setting at liberty a man who had WANTONLY TAKEN THE LIFE OF AN INNOCENT CHILD, in direct violation of the law.
Further, such a finding would make the chauffeur responsible for a criminal offense for which he might be sent to the penitentiary for life, and from the consequences of which he could easily have fled while he was at liberty.
*436If the Coroner had brought about such a finish to the investigation, he would have been a rare man, indeed.
Investigation of the high-handed handling of the case reveals that on the night of the tragedy the police released the chauffeur from all responsibility on the authority of Coroner Baron; that the Coroner acted on the information of Health Commissioner Bond, and that Health Commissioner Bond got all his information entirely from the chauffeur, who rushed home to tell his boss that he had run over a child, but was riot to blame.
Thus, on the single and unsupported statement of Chauffeur Diener, who did the killing, the killer was released.
To “SAVE THE PACES” of the officials involved, the child had to be guilty of “CONTRIBUTORY NEGLIGENCE.”
The chauffeur told the Health Commissioner and the Health Commissioner told the Coroner, and the Coroner told the police— but the pretty little innocent child told nobody, because she “DIED ALMOST INSTANTLY.”
‘ ‘ [Thereby meaning to charge this plaintiff with having committed a crime involving moral turpitude, and with having willfully and wantonly taken the life of a human being.
“That at all times referred to in said publication the plaintiff was the chauffeur of Health Commissioner Bond, which fact the defendant well knew, and that this plaintiff was the chauffeur and the person to whom the defendant referred in said publication.]
“Plaintiff further states that said publication was willful and malicious, and that he has been damaged thereby in the sum of twenty-five thousand dollars.
“Wherefore, plaintiff prays judgment in the sum of twenty-five thousand dollars and his costs.”
The only difference between the original and amended petition is, the former contained no innuendo or colloquium, while the latter does, which is embraced in brackets, as above appears.
The errors assigned by counsel for appellant are as follows:
“1. The court erred in sustaining the demurrer to the original petition.
*437“2. The court erred in striking the second amended petition from the files.
“3. The court erred in entering judgment for the defendant.
“4. The court erred in overruling plaintiff’s motion for a new trial.”
I. The first proposition presented for determination by counsel for appellant arraigns the action of the circuit court in striking out his amended petition.
If the amended petition was in fact but a replica of the original, then the trial court properly struck it from the files, as was held by this court in the case of Scott v. Taylor, 231 Mo. 654. To the same effect are the following cases: Savings Association v. Clause, 13 Wyo. 166; McKee v. Railroad, 121 Iowa 550; Enright v. Midland Sampling & Ore Co., 33 Colo. 341; Hoyt v. Beach, 104 Iowa 257.
In this connection counsel for respondent contend that after the court sustained the motion to strike the amended petition from the files, and granted appellant leave to file a second amended petition, and he having declined to do so, the court properly entered judgment for the respondent.
This contention is predicated upon the further contention that, the original petition having been adjudged bad, the only thing remaining for appellant to do was to stand on the demurrer or file an amended petition, and not a duplicate of the original; but instead of doing that, he filed a replica, which, when stricken out, left nothing for the court to do except to enter final judgment against him; and that he has no right of appeal, because the petition was adjudged bad under the first demurrer, which was unappealed from, and which could not be appealed from at the subsequent term, the term at which the motion to strike out was sustained; consequently, the only thing *438the court could properly do was to enter final judgment for the defendant, which was done.
Some of the cases before cited support that contention of counsel, but that is not the practice in this State. Plere, when the demurrer to the original petition was sustained, the appellant could either have stood upon the demurrer and let judgment go against him and appealed therefrom, or he could have availed himself of the right (as he did here) to file an amended petition; and, having chosen the latter course, there was no final judgment rendered upon the demurrer to the original petition from which an appeal could have been taken; and the mere fact that he may have filed a duplicate of the original instead of an amended petition could not have changed the character of the order actually entered on the demurrer to the original petition into such a judgment as would prevent the circuit court from passing upon the so-called amended petition, whether it was á duplicate of the original.or not. The only purpose of filing a motion to strike out the amended petition where it is in fact a duplicate of the original which has been held insufficient, is to take a short cut on the plaintiff, and thereby prevent dilatory practice and pleas by having the duplicate stricken out and final judgment entered thereon, without waiting for the plaintiff to file and the court to pass upon the same petition two or three times, which would have to be done if a demurrer should be filed to each. “Where the motion to strike out is sustained because the amended petition is simply a duplicate of the original, no necessity exists for the court to make an order allowing plaintiff to file a second amended petition, for the reason he has thereby abandoned his right to file a second under sections 621, 622 and 623, Revised Statutes 1899. [Scott v. Taylor,- supra.]
Since taking that view of the case, which we think is the correct one, it becomes unnecessary for us to *439pass upon the question as to whether the amended petition is a replica of the original or not.
II. This brings us to the consideration o'f the main proposition presented by this record, namely: does the amended petition filed in the cause state facts sufficient to constitute a cause of action, or, in other words, does the language charged in the petition to have been published of and concerning the appellant constitute a libelous charge? Counsel for appellant contend that it does, while those for respondent deny it.
Both the demurrer to the petition and the motion to strike the amended petition from the files not only admit the publication of the article complained of but also all legitimate inferences which may be reasonably drawn therefrom. Upon that state of the case the only thing the court has to do is to determine whether or not the construction placed upon the article by counsel for appellant can be reasonably drawn therefrom.
In order to determine that question we should bear in mind the definition of a libel as stated in section 2259, Revised Statutes 1899: “A libel is the malicious defamation of a person made public by any printing, writing, sign, picture, representation or effigy tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse or any malicious defamation made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives and friends.”
Since it is admitted that the article complained of was published of and concerning the appellant, we will, in the light of the foregoing definition of libel, try and determine whether or not said article “tended to provoke appellant to wrath or expose him to public *440hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse.”
Counsel for appellant point us to the following language contained in said article which they contend tends to expose the appellant to public hatred and contempt, and to deprive him of the benefits of public confidence and social intercourse, to-wit, that the appellant is “a man who had wantonly taken the life of an innocent child in direct violation of the law.”
We can conceive of no language which could be published of and concerning a man which would more-strongly expose him to public hatred and contempt, or to deprive him of the benefits of public confidence and social intercourse than those here published, namely, that he had wantonly, recklessly, heedlessly or maliciously taken the life of an innocent little girl, in direct violation of law. This is the plain and ordinary meaning to be given those words; and in order to determine whether or not they would tend to expose appellant to public hatred and contempt, or to deprive him of the benefits of public confidence and social intercourse, one need but ask himself the question, what he and all right thinking people would think of a man who would wantonly or maliciously take the life of a little innocent girl? Inevitably the anwer must be that he not only richly deserved public hatred and contempt and should be deprived of the benefits of public confidence and social intercourse, but also that he should be severely punished therefor by imprisonment in the penitentiary, if not hung on the gallows. No self-respecting person could have any confidence or respect for such a man.
Counsel for respondent endeavor to place a different or modified construction from what we háve upon the language before quoted from said article by contending that the entire paragraph should be read and construed together.
*441Let us see about that — the entire paragraph reads as follows: “To hold Chauffeur Diener directly responsible for the killing now would be to hold the Police Department, the Health Commissioner and the Coroner responsible for the atrocious act of setting at liberty a man who had wantonly taken the life of an innocent child, in direct violation of law.”
By reading this entire paragraph, it will be seen that it makes two charges: one against the Police Department, the Health Commissioner and the Coroner, and the other against the appellant. It also appears therefrom that the charge made against the former is conditional, while that published against the latter is unconditional: and that the basic fact upon which the said conditional criticism is made, namely, to now hold Diener responsible for the killing, would be to hold the Police Department, Health Commissioner and Coroner' responsible for the atrocious act of setting at liberty the appellant, is the unconditional charge made in the publication that the appellant “had wantonly taken the life of an innocent child, in direct violation of the law.” Or,, in other words, the charge made against the Police Department, Health Commissioner and Coroner is conditional in character, but that published of and concerning the appellant is unconditional, in that it charges him with “wantonly taking the life of an innocent child, in direct violation of the law. ”
There would be no sense or meaning in the charge made against the Police Department, Health Commissioner and Coroner if Diener, the appellant who was discharged by them, was an innocent man; but in order to make the'charge lodged against those officers effective, the respondent had to assume and charge that appellant was a criminal and should be severely punished therefor.
*442The.construction we have placed upon the paragraph before mentioned is strengthened’ and made clearer by another paragraph contained in the same article, which is as follows: “Thus on the single and unsupported statement of Chauffeur Diener, who did the killing, the killer was released.” By reading this language in connection with the previous paragraph, we can see no escape from the conclusion that the writer of the article in question intended thereby to charge Diener with a criminal offense, namely, that of wantonly or maliciously killing an innocent child, “for which [in the language of the article] he might be sent to the penitentiary for life.”
There are scores of authorities which hold that such language published of and concerning a person is libelous per se. [R. S. 1899, secs. 1815, 1816, 1817, 1835, 2375; Julian v. Star Publishing Co., 209 Mo. 35; Minter v. Bradstreet, 174 Mo. 485; Noeninger v. Vogt, 88 Mo. 589; Ferguson v. Chronicle Pub. Co., 72 Mo. App. 462; Hermann v. Bradstreet, 19 Mo. App. 227; Commercial Pub. Co. v. Smith, 149 Fed. 704; O’Shaughnessy v. Record Co., 58 Fed. 653; Meriwether v. Knapp, 224 Mo. 617.]
Not only does the entire article, when read as a whole, constitute a libel against appellant, as previously defined, but there are two or more paragraphs contained in the article which separately constitute libelous charges against the appellant, if they are not true in point of fact. For instance, the charge that appellant “had wantonly taken the life of an innocent child, in direct violation of the law,” is libelous, for the reason that the word “wanton” means reckless; heedless; malicious. [Webster’s New International Dictionary.]
And malice means, in a legal sense (the sense in which the article in question used it), a wrongful act intentionally done without just cause or excuse. *443[State v. Schoenwald, 31 Mo. 147; State v. Weeden, 133 Mo. 70; North Carolina v. Vanderford, 35 Fed. 282; State v. Massey, 97 N. C. 465; Branch v. State, 41 Tex. 622; Trauerman v. Lippincott, 39 Mo. App. 478.]
According to these authorities, the language last quoted accused the appellant of wantonly or maliciously killing Gertrude Copeland; and if that accusation is true, then he is guilty of a crime for which he is punishable by imprisonment in the penitentiary. [See statutes before cited.] This was also true at common law. But if that charge is not true, it is libelous per se. [Noeninger v. Vogt, 88 Mo. 589'. Also see cases before cited.]
The following paragraph contained in said article is also libelous per se, viz.: ‘‘ Thus on the single and unsupported statement of Chauffeur Diener, who did the killing, the killer was released.”
The authorities are uniform in holding that language to be libelous. [Button v. Heyward, 8 Mod. 24; Jones v. Murray, 167 Mo. 25, l. c. 30; Noeninger v. Vogt, supra; Cooper v. Smith, 1 Rolle’s Abridgment; Doan v. Kelley, 121 Ind. 413; Thomas v. Blasdale, 147 Mass. 438; McLaughlin v. Cowley, 131 Mass. 70; Publishing Co. v. Jones, 83 Tex. 302; Carroll v. White, 33 Barb. 615; Hays v. Hays, 1 Humph. 402; Cady v. Times Co., 58 Minn. 329.]
Evidently, the respondent placed the same construction upon the article that we have. That fact is manifested by the statement that appellant’s act of killing might make him responsible for a criminal offense for which he might be sent to the penitentiary for life. Under the laws of this State a person cannot be sent to the penitentiary for killing a human being without the act was either murder or manslaughter. So, evidently, as before stated, the writer of the article thought and intended thereby to charge *444appellant with some criminal offense punishable by imprisonment in the penitentiary.
So it is seen that whether we consider this publication as an entirety or by paragraphs, it is libelous.
I am, therefore, of the opinion that the trial court erred in holding that it was not libelous in character; and for that reason the judgment should be reversed and the cause remanded for another trial.
Kennish, J., concurs.