made repairs on it, although the road overseer had cut the dam after he told the defendant that he was going to do so. That argument is not good.

was untrue, and that the publication caused her great mental anguish, humiliation, and injury. The defense was a general denial, and an averment that the language used in

(103 Kan. 513)

HATFIELD v. GAZETTE PRINTING CO. (No. 21710.) (Supreme Court of Kansas. Oct. 12, 1918.)

(Syllabus by the Court.)

2, 7(16)-ACTION

1. LIBEL AND SLANDER
ABLE WORDS-UNCHASTITY-EXCUSE.

A false charge in a publication that a woman, specifically named, is immoral and unchaste, constitutes a libel; and the fact that an honest mistake was made by the publisher in the use of plaintiff's name is not a legal excuse, as the law looks to the tendency and consequences of a publication, rather than to the intention of the publisher. 2. LIBEL AND SLANDER 112(1)-APPLICA

TION OF DEFAMATORY MATTER-STATUTE,

As the publication, containing the charge of unchastity and conceded to be false, specifically named the plaintiff as the wrongdoer, and as no one else of her name resided in the community, the provisions of section 126 of the Code of Civil Procedure (Gen. St. 1915, § 7018) did not apply, and formal proof that the defamatory matter was published of the plaintiff was not necessary.

3. LLBEL AND SLANDER 33-ACTIONABLE WORDS-GENERAL DAMAGES-PROOF. General damages from such a false publication arise by inference of law, and need not be proved.

4. LIBEL AND SLANDER 123(1)—QUESTION FOR JURY-DAMAGES.

As no valid defense of the libel was made herein, the only question left for submission to the jury was the amount of damages sustained by the plaintiff.

5. LIBEL AND SLANDER

71-SETTLEMENT. Certain facts relied on by the defendant are held not to constitute a settlement.

Appeal from District Court, Reno County. Action for libel by Minnie Hatfield against the Gazette Printing Company. Judgment for defendant, and plaintiff appeals. Reversed, and remanded for trial as to amount of damages.

F. Dumont Smith and Eustace Smith, both of Hutchinson, for appellant. C. M. Williams, of Hutchinson, for appellee.

JOHNSTON, C. J. This was an action for libel. Plaintiff alleged that the defendant, which owns a newspaper having a large circulation in and about the city of Hutchinson, had published in its Sunday morning issue the following of and concerning the plaintiff: "Raided Rooming House.-Sheriff Scott Sprout yesterday raided the rooming house on First Avenue West conducted by Ruth Newman. Two girls, Bess Stolen and Minnie Hatfield, were charged with being inmates of an immoral house, and the Newman woman with running an immoral place. They were released on $500 bail."

It was further alleged that the charge that plaintiff was an inmate of an immoral house

and was so understood by persons reading it, and that there were other persons living in that community where the paper was circulated named Minnie Hatfield. It was admitted that the circulation of the newspaper on the morning in question was between 7,000 and 8,000, and there is no claim that the

charge mentioned in the article as against plaintiff was true. It appears that one of the parties arrested was named Minnie Olson; that the defendant's reporter had a conversation with the sheriff who made the raid preparatory to the writing of the item for the paper; that he failed to ascertain the names of the parties involved, and through mistake wrote the name of Minnie Hatfield, instead of Minnie Olson. Plaintiff's attorney was informed by defendant's manager that

an apology would be printed, and the article

republished with the name corrected. The article was again published, with the change of names, but no explanation nor apology accompanied it. It does not appear that there was any other person in the community by the name of Minnie Hatfield, nor that the reporter made any effort to verify the names of the parties arrested by looking up the court record. Plaintiff asked for a peremptory instruction, and it was refused. Verdict and judgment were in favor of the defendant, and the plaintiff appeals.

[1] The publication in plain terms specifically charged the plaintiff, a single woman of unquestioned character and reputation, with unchastity and immorality. As the imputation was untrue, malice is inferred, and of it

self it constitutes a libel. Cooper v. Seaverns, 81 Kan. 267, 105 Pac. 509, 25 L. R. A. (N. S.) 517, 135 Am. St. Rep. 359. The only excuse is that a mistake was made in the use of plaintiff's name; the writer saying that he did not know the plaintiff, and had no intention to hurt her, and also that he did not know how he came to use her name. This is not a valid excuse. The imputation against the plaintiff was just as hurtful as if the writer had been acquainted with the plaintiff and had intentionally applied the charge to her. The law looks to the tendency and consequences of a publication, rather than to the intention of the publisher. It is generally said that malice is a necessary element in libel, but that element is present where the publication of a false charge is made without a legal excuse. When the falsity of the charge was conceded, malice was established. There is no excuse for a false charge of unchastity and immorality, which would be understood by reasonable people to refer to plaintiff, and especially where, as

here, there is a lack of care and diligence on the part of the publisher to ascertain the real facts before the publication is made. One who makes an untrue charge of the kind in question, whether it is done recklessly or with care, does so at his peril, and takes the risk of liability for resulting injury. It has been held that:

"It is not a legal excuse that defamatory matter was published accidentally or inadvertently, or with good motives and in an honest belief in its truth." Moore v. Francis et al.,

121 N. Y. 199, 207, 23 N. E. 1127, 1129 (8 L. R. A. 214, 18 Am. St. Rep. 810).

It has also been held that: "Publication of the portrait of one person, with statements thereunder as of another, by mistake, and without knowledge of whom the portrait really is, is not an excuse. A libel is harmful on its face, and one publishing manifestly hurtful statements concerning an individual does so at his peril; and if there is no justification, other than that it was news or advertising, he is liable if the statements are false, or are true only of some one else." Peck v. Tribune Co., 214 U. S. 185. 29 Sup. Ct. 554, 53 L. Ed. 960, 16 Ann. Cas. 1075 (Syl. par. 2.) It is generally held that an honest mistake in identity is no defense to an action for libel, although it may be admissible in mitigation of damages. Dunlevy v. Wolferman, 106 Mo. App. 46, 79 S. W. 1165; Jones v. Murray, 167 Mo. 25, 66 S. W. 981; Greer v. White, 90 Ark. 117, 118 S. W. 258, 17 Ann. Cas. 270. See, also, Farley v. Publishing Co., 113 Mo. App. 216, 87 S. W. 565; Wandt v. Hearst's Chicago American, 129 Wis. 419, 109 N. W. 70, 6 L. R. A. (N. S.) 919, 116 Am. St. Rep. 959, 9 Ann. Cas. 864; note, 47 L. R. A. (N. S.) 240.

[2] The defendant relies on section 126 of the Code of Civil Procedure (Gen. St. 1915, § 7018), which provides:

sion had been made as to the proof. Here there is no indefiniteness. The reference to the plaintiff by name was specific; plaintiff was the only Minnie Hatfield in the city; all who knew her would reasonably infer that she was the person against whom the charge was directed; the defamatory words are actionable per se; and no other proof was necessary as to the object of the libel, nor as to the injury to the plaintiff by reason of the publication.

[3, 4] So far as the damages are concerned, general damages from such a publication arise by inference of law and need not be proved. Odgers on Libel and Slander (5th Ed.) 372. In view of the fact that no valid defense was made, and that the proof showed without dispute that there was no legal excuse for the libel, only a question of law was presented, and the court should have instructed the jury that the only question for its determination was the amount of damages sustained by the plaintiff. Instead of that, the court appears to have submitted to the jury the question whether the publication referred to the plaintiff or to some other person, and instructed them that, unless it was shown that the publication was made of and concerning her and was false, a verdict must be returned for the defendant.

[5] There is a suggestion that a settlement was made, based on the fact that the attorney of the plaintiff asked the defendant for a retraction and an apology, which were promised to be made, and that subsequently the article was republished, substituting the name of Minnie Olson for that of the plaintiff in the article, but making no other change nor explanation. No retraction or

apology was published; but, even if it had been, the arrangement made would not have amounted to a settlement.

the Justices concurring.

(103 Kan. 517)

persons defamed. The legislative purpose manifestly was to avoid setting forth at length the extrinsic facts tending to show that plaintiff was the one referred to, and making sufficient a general averment that the defamatory words were spoken or published of the plaintiff. In such a case, if the gener al averment is denied, it devolves upon the plaintiff to prove it as fully as if the extrinsic facts and circumstances pointing to the plaintiff had been alleged, and probably this much would have been required, if no provi

(No. 21714.)

(Syllabus by the Court.)

1. INSURANCE 166

BY-LAW-LIVE STOCK.

FIRE INSURANCE

A by-law of a mutual fire insurance company is held to mean that, where a policy is written on live stock, and the risk on each head is not otherwise stated, each is to be regarded tional part of the entire amount named. as separately insured for a numerically propor2. EVIDENCE 439 CONTRACT CONTRADICTION BY PAROL-SUBSTANTIAL LAW. The rule which denies effect to an oral

agreement so far as it contradicts a written contract entered into at the same time or later is one not merely of evidence, but of substantive law.

Where the statute provides that the bylaws of a mutual insurance company shall be made a part of every policy issued, the fact that the agent who solicited the insurance made an incorrect statement concerning the force of a by-law, through a mistaken opinion as to its meaning, will not form a basis for a reformation of the contract to conform to such erroneous conception.

4. INSURANCE-152(2)—FIRE INSURANCE

LIVE STOCK-BY-LAW.

A change in such by-law by the elimination of a provision that in no event should the company's liability exceed the market value of the animal lost is held not to have had any effect upon the rights of the parties involved in this action.

The parties disagree in the interpretation of this language. We think it quite clear that the by-law means, as contended by the defendant, that where the amount of risk on each animal is not otherwise stated each is to be regarded as insured separately for the proportion of the entire amount named that one bears to the number of head covered

by the policy at the time of a loss, not to be more, however, than twice what this amount would have been had a loss occurred before any change took place in the size of the herd, nor more than the market value of the animal lost. So interpreted, the by-law means, as applied to the facts of this case, that each animal at the time the policy was written

45. When the number of animals was in

tions.

S. H. Allen, Otis S. Allen, and Geo. S. Allen, all of Topeka, for appellant. Robert Garvin, of St. John, for appellee.

BURCH, J. A. J. Brenn sued the Farmers' Alliance Insurance Company upon a policy covering a number of horses, one of which had been killed by lightning, one of the risks insured against. The controversy was as to the amount of recovery; the plaintiff claiming $130, and the defendant conceding but $27.77. The case was heard upon an agreed statement of facts, the trial court sustaining the plaintiff's claim and rendering judgment accordingly. The defendant appeals.

[1] The policy was for $500 and covered horses, mules, and colts owned by the plaintiff. No separate valuation was placed on any animal. The plaintiff had 11 head when the insurance was taken and 18 when the loss occurred. The defendant is a mutual company, organized under the Kansas statute (Gen. Stat. 1915, §§ 5300-5339), and one of its by-laws, reading as follows, was made a part of the contract:

"It is agreed and made a part of this contract of insurance that each head of live stock covered thereby is a separate and distinct risk and the company shall not be liable for a greater sum per head than placed thereon in the application and such sum is to be an average price of all stock owned of the class named. Provided that, if at any time the herd is increased this policy shall reach to and cover such increase, but the amount of insurance per head shall be diminished in proportion to the increase in number, and if the herd is diminished, the amount of insurance per head shall be proportionately increased; but such increase shall not create a liability upon the part of the company for a greater sum per head than double the price named in the application, and in no case shall the company be liable for more than the market value of the animal when and

ed to one-eighteenth of $500, or $27.77. If the number of horses had been reduced to 5, the recovery would not have been $100, but $90.90 (if the animal lost was worth that much) because it could not be more than twice the original risk of $45.45. If after the herd had been reduced to 5 an animal had been lost which was worth but $50, that would have been the limit of recovery.

[2] It was agreed, however (subject to objection as to competency and materiality), that the soliciting agent who induced the plaintiff to apply for the insurance orally represented to him before it was written that the company would pay the full value of any loss where no value was stated in the application, and that if he applied for $500 insurance and received it the company would pay the full value of any animal lost notwithstanding the herd might in the meantime have been increased. The plaintiff contends that by reason of these representations he was entitled to recover the full value of the animal lost, even conceding the correctness of the interpretation we have just placed upon the language of the by-law. If the representations referred to are regarded as a part of the negotiations leading up to the written contract entered into, they cannot have the effect of modifying its terms, under the familiar rule. The plaintiff, however, suggests that the objection made was one to the admission of evidence, and, having been overruled by the trial court, is now unavailing because of the absence of a motion for a new trial. The case was heard on an agreed statement of facts, and no such motion was necessary. The defendant did not merely consent that evidence should be introduced showing that the representations were made; it admitted that to be the fact, subject to its contention that the rights of the parties were not thereby affected. We concur in the modern view of the character of the so-called "parol evidence" rule, namely, that

the rule which denies effect to an oral agree ment, where it varies a written contract entered into at the same time or earlier, is not merely one of evidence, but of substantive law. The accepted theory is not merely that the writing is the best evidence of the agree ment, but that what is embodied in the writing is the actual final contract of the parties, unless affected by fraud or mutual mistake. Evidence concerning conversations preceding the reduction of an agreement to writing, when offered to contradict the terms of the written contract, is rejected, not because the testimony proffered is not of the right kind by which to show that certain things were said, but because the fact that they were said cannot itself affect the matter in controversy. The authorities bearing on the matter are collected in Thompson Co. v. Foster, 101 Kan. 14, 16, 165 Pac. 841.

The petition did not ask for a reformation of the written contract because of a

mutual mistake; but, inasmuch as the judgment was in favor of the plaintiff, the trial court may perhaps be regarded as having considered it as reformed, if the evidence was such as to warrant that action. By the weight of authority an insurance contract may be reformed, for a mistake of the applicant and the soliciting agent, although the latter had no authority to issue a policy or determine its contents. 14 R. C. L. 903, citing note, 11 L. R. A. (N. S.) 357. Here, how ever, the facts indicate, not that the company's agent represented that matter was to be inserted in the policy which was omitted, but that, knowing the actual contents of the policy, he undertook to tell its legal effect and stated it incorrectly through an error of judgment. Such a situation has been held not to authorize a reformation on the ground

of mutual mistake. Travelers' Ins. Co. v. Henderson, 69 Fed. 762, 16 C. C. A. 390.

[3] But a consideration which disposes of this feature of the case is the fact that the statute under which the defendant is organized includes this provision:

"Every policy issued shall have attached thereto a printed copy of the note and application, also a printed copy of the by-laws and regulations of the company, which shall be signed by the president and secretary of the company and the insured, and shall become a part of the contract between the insurer and the insured." Gen. Stat. 1915, § 5319.

The defendant is a purely mutual company. The persons insured form the membership of the corporation. Gen. Stat. 1915, § 5310. The legislative intent clearly was that the by-laws should be made binding on the members and should constitute a part of 175 P.-25

every contract of insurance made, and that they should affect the measure of liability where they related to that subject. This purpose is not to be defeated by the expression of a soliciting agent of a mistaken opinion as to the force of a by-law. It is the meaning of the by-law itself, and not the agent's conception of it, that is to control.

If the plaintiff before a loss occurred had brought an action for the rescission of the contract, asking to be released from further liability for the premium, a question of an entirely different character would be pre

sented.

The contention is made that the representations of the agent already stated, and the action of the plaintiff in reliance thereon, amounted to a practical construction of the doubtful language of a contract, which should control. We do not regard the by-law as ambiguous in such sense as to make that principle applicable, nor do we consider the opinion of the agent and the acceptance of the policy by the plaintiff in reliance thereon as amounting to a practical interpretation by the parties.

[4] After the issuance of the policy and before the loss, the by-law quoted was amended by striking out the words italicized in the following provision:

"Provided that, if at any time the herd is increased this policy shall reach to and cover such increase, but the amount of insurance per head shall be diminished in proportion to the increase in number, and, if the herd is diminished, the amount of insurance per head shall shall not create a liability upon the part of the be proportionately increased; but such increase company for a greater sum per head than double the price named in the application, and in no case shall the company be liable for more than the market value of the animal when and where killed, when no price is named in the applica tion."

The effect of this change seems to be to remove one of the restrictions placed upon an increase in the risk carried on each animal by a decrease in the number. For instance, in the case already supposed, if the plaintiff's herd had been reduced to five he might (unless some other provision prevented) have recovered $90.90 for the loss of one head, although it was worth on the market only $50. The clause eliminated obviously had special reference to the situation arising where the size of the original herd was reduced, but in any event its elimination does not affect the defendant's liability here.

The judgment is reversed, and the cause remanded, with directions to render judgment in accordance herewith. All the Justices concurring.