The opinion
SEPARATE CONCURRING OPINION.
GRAVES, J.
Understanding of witness. I concur with the reasoning of this opinion' throughout, except in so far as reference is made to one doctrine ruled in Julian v. Kansas City Star, 209 Mo. 35 . In the Julian case, by maiority opinion, we did rule that witnesses could be put upon the stand to testify how they understood a printed article. To that broad rule I did not assent then, nor do I assent now. I take it that my brother in indorsing the doctrine of the Julian case in this case is referring to the ideas expressed in the majority opinion thereof, and I therefore dissent to that portion of this opinion, whilst I concur in other portions of the opinion and in the result. I further agree that the conclusion reached in paragraph two of my brother’s opinion is correct, but for the reason which I expressed in a dissenting opinion in the Julian case. This is an action for slander and not libel. In Julian’s case the dissenting opinion, 209 Mo. 1 . c. 113, discusses this question thus:
*439 “But grant it that the words ‘did well in a legislative way,’ are ambiguous and susceptible of a double meaning, in the connection, and under the circumstances and surroundings in which they are used, yet it cannot be held, under the great weight of authority, that plaintiff in a libel suit can put on readers of the article, to testify as to how they understood the words when they read them. To our minds there is and should be a clearly marked line of distinction between libel and slander cases in this regard. "We can see reason for the rule in the case of slander or spoken words. Accompanying accent, intonation, facial expression, tone, manner, gesture, etc., are seen and heard by the witness. These things are difficult of description before a jury, so that it is practically impossible to place the jury in the place of the hearer. Ex necessitate, the understanding of the hearer becomes essential in the administration of justice, and his bald conclusion of the meaning of the language used is admitted. But how different when the language is put in cold print. There -we have no intonation of voice, no expression of face, no shrug of shoulder or other gesture, no accent. In fact nothing to give the words other than their ordinary meaning, save and except the conditions and circumstances surrounding their publication. These. conditions, circumstances and surroundings are matters of easy and direct proof, and the rule ex necessitate finds no place in the case. When the jury have read or heard read the language, and when they, by other evidence, have been given the facts as to the conditions, circumstances and surroundings of the publication, then the jury are in as good or better position than a reader of the article and are just as competent to draw the conclusion as to what was meant by the language, as are the readers of the article. The jury has before it everything that the reader could have had. To permit a reader-as a wit *440 ness, to give Ms concMsions as to the meaMng of the words under these circumstances, is to permit the witness to draw the very concMsion of fact, for which the jury has been selected to find and determine. Such a course permits the witness to usurp the place and province of the jury. One of the ultimate facts to be found by the jury in this case was, in what sense was the language used1? It was the.sole province of the jury to determine from the article itself, when taken with the other evidence, and under proper innuendoes, this question of fact. Even experts are not permitted to give their conclusions and thus trespass upon this peculiar right of the jury. [Roscoe v. Railroad, 202 Mo. 576 , and other cases therein cited.]
“In reviewing the authorities, both cases and textbooks, we find, to our mind, an indiscriminate intermingling of doctrines which properly apply to certain slander cases, and which should not be applied to libel cases. And we repeat that the great weight of authority in libel .cases is contrary to the view expressed by Judge Vauliant. We must bear in mind that there is a difference between the two classes of cases. In one, slander cases, where the words are spoken, intonation of voice, accent, gesture, and other things, difficult and practically impossible to accurately describe to the jury, the opinion of non-expert witnesses, who were hearers of said words; may be taken as to their meaning. But this rule should not apply to slander cases, where the words are unambiguous, and not accompanied by the things aforesaid which are difficult to describe or reproduce before the jury, nor to libel cases.”
I think the above outlines the true rule as to this class of evidence, and the authorities for such pronouncement will be found in the dissenting opinion in the Julian case, supra. I agree with my brother that there is sufficient ambiguity in the language used to *441 call into play this rale in slander cases,, but I do not agree that sncb rule applies to libel suits. For these reasons I desire to modify a full concurrence in the opinion, and concur in the manner here indicated and tbe result of tbe opinion filed by my brother.