In this action of libel, instituted by J. Paul England, in the Circuit Court of Wyoming County, against The Daily Gazette Company, a verdict in favor of plaintiff for Five Thousand DoEars was returned, and a judgment was entered thereon against defendant. The publication containing the words aEeged to be libelous was admittedly published by defendant in ‘an editorial appearing in The Charleston Gazette, a newspaper of general circulation throughout West Virginia, on the fifth day of August, 1955. An opinion of this Court in the case of J. Paul Bower against The DaEy Gazette Company, involving aEeged libelous language contained in the same editorial is reported in
“MORALITY in government was a major issue of the 52nd Legislature, and it had the salutary effect of outlawing liquor accounts as political plums for officeholders.
“Now it’s time the Legislature gives state insurance a long, searching study in view of the growing trend toward paying off political debts with fire insurance premiums.
* * *
“THE RECIPIENTS of this lush piece of state business deny that they are parties to iany wrongdoing. They argue, either out of stupidity or calloused disregard for their public trust, that their dealings with the state are right, proper and aboveboard.
“Perhaps, as they say, their dealings are outwardly legitimate. They get a premium as insurance agents, and the state gets insurance coverage from a rеputable company. AE would be well if the deal ended there, but by unfortunate circumstance it doesn’t end in so innocent and blithe a manner.
*703 “There is a third factor to consider that weighs heavily against these agents. They, as members of the Legislature, hold an allegiance to their constituents which precludes their doing business of any kind with the state while they are in office.
“IF THEY COULD SERVE their own cause and that of the electorate with equal fervor while holding state insurance contracts, all well and good. But they can’t! Their past actions in the Legislature reveal them as peons of the politicians and lackeys of the administration.
“We’ve watched them at work, and they follow the administration line with dutiful submission. They are the Governor’s marionettes on the Senate and House floors, and they jump when ordered to — like Kuk-la and Ollie of television fame.
“It’s easy to see that they’ve sold their votes — sold out their constituents — for a price. They’re more dedicated to their own creature comforts than to the comforts and welfare of the folks back home.
“So that you’ll know these legislators better, we’ll name them. They, and the amounts of fire insurance premiums awarded them, follow:
“Sen. Jack A. Nuckols, Beckley, $14,500.42; Sen.-Don K. Marehand, Morgantown, $6,092.25; Del. Joe Lilly, Oak Hill, $4,307.50; Del. J. Paul England, Pineville, $2,513.92, and Del. Paul Bower, Pineville, $892.50.
“THIS BUSINESS of rewarding the faithful with public funds doesn’t end in the Legislature. Kаnawha County Political Boss Homer Hanna, Ed Stumpp, Northern Panhandle politician, Wilbur F. Lewis, Huntington politician-insurance agent, and others are paid off for past favors.
“A legislative interim committee investigated the state’s insurance policies last year, but took no positive corrective action. We urge that a new look be given the practice, possibly with the view of demanding competitive bids on insurance (contrary to popular opinion, all fire *704 insurance rates are not the same) or passing legislation compelling self-insurance of state property.
“It’s quite obvious that the citizens of West Virginia axe being exploited by this amoral practice of doling out insurance to the politically faithful. The public’s right of legislative representation is being invaded. The public’s insurance protection is perhaps more costly than necessary.
“A change in policy relative to1 the awarding of insurance is vitally needed, and if the executive department refuses to effect (changes voluntarily, the Legislature should step in and make them by statute.”
The words contained in the editorial declared on are: “It’s easy to see that they’ve sold their votes — sold out their constituents — for a price. They’re more dedicated to their own creature comforts than to the comforts and welfare of the folks back home.
“So that you’ll know these legislators better, we’ll name them. They, and the amounts of Fire insurance premiums awarded them, follow: Sen. Jack A. Nuckols, Beckley, $14,500.42; Sen. Don K. Marcband, Morgantown, $6,092.25; Del. Joe Lilly, Oak Hill, $4,307.50; Del. J. Paul England, PineviUe, $2,513.92, and Del. Paul Bower, Pine-vi'lle, $892.50”.
The defendant entered its plea of not guilty, and filed its special plea and amended special plea, wherein it alleged, in effect, that the publication declared on was published on an occasion privileged, that the matters stated in the publication were true, and that the comment thereon was fair and reasonable, contending that it was the “duty, right and privilege of defendant to publish and сomment upon through the news, editorial and political columns of The Charleston Gazette, the acts and conduct of public office holders, and in particular it was and is the duty, right and privilege of defendant to publish and comment upon, through the news, editorial and political columns of The Charleston Gazette, the acts *705 and conduct of members of the State Legislature, which affect the welfare, interest and rights of the subscribers to and readers of said newspaper and of the citizens and taxpayers of said State”. Defendant further alleges, in its pleas, that before the publication of the editorial sued on it “carefully investigated the facts aforesaid and made an honest and diligent effort to ascertain the truth in respect thereto and to truthfully report such facts”. Defendant especially denies that the matters complained of were published “falsely or wickedly or maliciously” and further denies that the matters complained of “contained any false, scandalous, libelous, defamatory or malicious words of and concerning the plaintiff”. The full editorial is set out in the pleas.
On the day before the publication of the editorial sued on there was published in The Charleston Gazette a news story relating to the allotting of insurance covering State of West Virginia property, against loss by fire, wherein it was said thаt the insurance “pie was cut in 91 assorted shapes and sizes”, naming a large number of individuals and firms to whom insurance was allotted. In the newspaper story it was stated that “J. Paul England, Wyoming County, member of the House of Delegates * * * received insurance worth $2,513.92 in premiums” and that “Del. Paul Bower of Wyoming County, operator of the Bower Insurance Agency, got $892.50 in premiums on $150,000 worth of coverage”.
This action was instituted on the eighth day of August, 1955. On the day following the defendant published in The Charleston Gazette an editorial wherein the institution of the action was mentioned and the voting record of plaintiff, as a member of the Legislature, was discussed, and the oath of office required of a membеr of the Legislature was set out. The editorial stated: “* * * England’s complaint, as reported by the Associated Press, was that a Gazette editorial of last Friday said England ‘sold out’ to the state administration for $2,500 worth of state insurance.
*706 “England said the editorial statement was ‘an unprovoked lie’.
“The Gazette, however, is not hacking down from any of the statements that appeared in last Friday’s lead editorial.
“We said then, and we repeat now ... a member of the Legislature who accepts profitable patronage from the administration, insurance or otherwise, is joining in an arrangement that is morally wrong.
“A LEGISLATOR cannot be free to vote only in the interest of his constituents when he knows that upon his favor with the administration depends some profits in his private business ... in England’s case $2,500 worth of insurance premiums.”
Evidence before the jury established that plaintiff was a member of the House of Delegates of the State Legislature at the 1953 and 1955 Sessions. He was first nominated as a candidate for. the office in the 1952 Primary and was elected thereto at the general election of that year. After he was nominated, but before his election, he was licensed to sell insurance in the State. He was employed, as a part time employee, by the Welch Insurance Agency, at a fixed salary, receiving no compensation for his services other than his salary. The Welch Insurance Agency maintained branch offices, known as the Pineville Insurance Agency, located at Pineville, in Wyoming County. That agency had no separate legal entity. Plaintiff’s services to the Welch Insurance Agency, at least in large part, were in connection with the operation of the Pineville offices. Certain insurance policies were issued, through the Department of Purchases of the State of West Virginia, and were allotted to the Welch Insurance Agency, apparently through the Pineville offices, during the time plaintiff was a member of the Legislature. The amounts of the premiums and descriptions of such policies appear not to be materially disputed. They fairly appear in the publications quoted.
*707 The insurance, for the most part, at least, allotted by the State, through the Department of Purchases, related to such losses as might result from fire, and was allotted pursuant to general laws in effect before the commencement of the 1953 Regular Session of the Legislature. The Director of the Department of Purchases is appointed by, and responsible to, the Governor of the State. There appears to be no question that the rates and amounts of premiums on such insurance are so regulated that they are precisely the same regardless of the agency or insurance company to whom the insurance is allotted. The proportion of the premiums allowable to the agencies by the insurance companies seems to be uniformly twenty per cent of the amount of the premiums.
The editorial complained of was written by an employee of defendant, Thomas F. Stafford, “a statehouse, legislative and political writer”, but was published with the knowledge and approval of the managing editor and the assistant managing editor “in charge of the editorial page and also political editor” of The Charleston Gazette. Though Stafford was not employed by defendant until December, 1954, the managing editor testified to the effect that he, the managing editor, did not “make any check” of the distribution of insurance as to plaintiff, and as managing editor he “accepted the story prepared by” Stafford, and the assistant managing editor started that “Stafford did the real leg work on it”. While the evidence shows that Stafford had much previous experience in newspaper reporting and that those in charge of the publication of editorials had long considered the so called evil practice, whether such a careful and diligent investigation of plaintiff’s connection with the practice before the publication of the charges and imputations was made, would appear to be a question of fact for jury determination.
It is the position of defendant that a long time practice of the executive branch of the State Government existed whereby the votes and influence of members of the State Legislature were obtained in its efforts to *708 have enacted legislation especially desired by the executive branch of the State Government, by having allotted to such members insurance, or other favors, through the Department of Purchases; that such evil practice was not in the interest of the people, and that it was the duty of defendant to expose such evil practice. For the most part, аt least, the conclusions of defendant as to the existence of the evil practice were grounded on an examination of the records in the Department of Purchases made by Stafford. Such records reflect nothing more than the names of the persons to whom insurance was allotted, and the amounts of such insurance. Stafford testified to the effect that he observed the actions of plaintiff at the 1953 and 1955 Sessions of the Legislature, but testified to no action of plaintiff which indicated any such action was the result of improper influence. He also examined certain legislative committee reports, but, admittedly, such reports made no mention of plaintiff or his legislative voting. He also had available the legislative journals, but the only material matter reflected by the journals was the actual voting by plaintiff as to matters before the House. He made no inquiry of plaintiff, or, in so far as the record indicates, of any other member of the House, or of any other person not employed by defendant, as to any improper action of plaintiff.
Defendant states the issues involved on this writ of error to be whether the editorial complained of is a privileged publication; whether malice in a libel action may be inferred from the language of the editorial complained of; whether truth constitutes а complete defense to such an action; whether, in such an action, an editorial published subsequent to the publication of the editorial sued on is admissible in evidence for the purpose of establishing malice; and whether the exclusion of certain evidence was prejudicial error.
Sections 7 and 8 of Article III of our State Constitution provide: “§7. No law abridging the freedom of speech, or of the press, shall be passed; but the Legislature may *709 by suitable penalties, restrain the publication or sale of obscene books, papers, or pictures, and provide for the punishment of libel, and defamation of character, and for the reсovery, in civil actions, by the aggrieved party, of suitable damages for such libel, or defamation. §8. In prosecutions and civil suits for libel, the truth may be given in evidence; and if it shall appear to the jury, that the matter charged as libelous, is true, and was published with good motives, and for justifiable ends, the verdict shall be for the defendant.”
Code, 55-7-2, reads: “All words which, from their usual construction and common acceptation, are construed as insults and tend to violence and breach of the peace, shall be actionable. No demurrer shall preclude a jury from passing thereon.”
The litigants apparently agree, and the trial court held, we think correctly, that the editoriаl complained of was a conditionally or qualifiedly privileged publication. In 53 C. J. S., Libel and Slander, Section 90, it is stated: “In the case of communications qualifiedly privileged, there must be both an occasion of privilege and the use of that occasion in good faith; and whether the privilege is available as a defense may depend on all the circumstances of the particular case.” See 12 M. J., Libel and Slander, Section 20.
It appears to be generally agreed by the authorities that a defendant in such an action loses any protection afforded .by a qualified privilege if the privilege is abused or exceeded. “The protection of a qualified privilege may be lost by the manner of its exercise, although belief in the truth of the charge exists. The privilege does not protect any unnecessary defamation. In order for a communication to be privileged, the person making it must be careful to go no further than his interests or his duties require. Where the person exceeds his privilege and the communication complained of goes beyond what the occasion demands that he should publish, and is unnecessarily defamatory of plaintiff, he will not be
*710
protected, and the fact that a duty, a common interest, or a confidential relation existed to a limited degree is not a defense, even thоugh he acted in good faith.” 53 C. J. S., Libel and Slander, Section 97. In
Rigney
v.
Keesee,
In
Swearingen
v.
Parkersburg Sentinel Co., supra,
after having appraised the facts, and after having found that the defendant “did not abuse or exceed the privilege of such occasion”, the Court used this language: “Having determined that the occasion was one of qualified privilege and that defendant did not abuse оr exceed the privilege, either by vehemence of the published words or extravagant statement, the implication of malice is no longer present and the burden devolves upon plaintiff to prove
malice in fact. Ward
v.
Ward, supra; Rigney
v.
Keesee & Co., supra; Stewart
v.
Riley, supra;
also consult
Chafin
v.
Lynch,
Usually, though a publication be qualifiedly privileged, where the publisher exceeds or abuses the privilege by false imputation of a crime, the protective characteristics of the privilege are lost. In
Colcord
v.
The Gazette Publishing Co.,
The trial court, by reading plaintiff’s Instruction No. 1, told the jury, over vigorous objections of defendant, that a “newspaper has a qualified privilege to publish and *712 comment upon public affairs and public officials, but that in this case the privilege has been abused and exceeded”; that the burden was on “plaintiff to show malice, which implies that the act complained of was conceived in the spirit of mischief, or of criminal indifference to civil obligations”; and that in determining whether malice existed the jury “are entitled to take into consideration whether the language used in the editorial of August 5, 1955 and the editorial of August 9, 1955, threw humiliation at the plaintiff or was arrogant in its charges against him * * The questions raised by defendant’s objections to the instruction are also raised as to admission of certain evidence, and as to other actions of the trial court. They need not be considered separately.
As above pointed out, the litigants are in agreement as to the publication complained of being qualifiedly privileged. But was the trial court justified in telling the jury that such privilege had been abused? The headlines of the editorial sued on, when read in connection with the naming of plaintiff, fallaciously impute to him improper influence and action in the performance of his duties. A reading of the language of the editorial clearly and unquestionably discloses a charge or imputation, to the effect that, plaintiff “sold” his vote as a member of the Legislature, in effect, a charge that plaintiff accepted a bribe, a crime of audacious and enhanced magnitude, and that in accepting a bribe, plaintiff violated his official oath, also a crime of audacious and enhanced magnitude; that plaintiff betrayed his constituents “for a price”; that he was a “peon of the politicians”; that he was “a lackey” of the administration; that “We’ve watched” him at work and he was a “marionette” of the Governоr; that he “jumped when ordered to — like Kukla and Ollie of television fame”; that he followed “the administration line with dutiful submission”; that “It’s quite obvious” that plaintiff has “exploited by this amoral practice of doling out insurance to the politically faithful” taxpayers of the State, and that plaintiff argues out of “stupidity or calloused disregard for” the public trust. The editorial in
*713
correctly states that “contrary to popular opinion, all fire insurance rates are not the same”, a false statement tending to lead directly to the conclusion that taxpayers were being defrauded by the practice alluded to by the payment of excessive insurance premiums. Perhaps аny one of such charges or imputations is actionable per se, especially in view of the statute quoted above. See
Stewart
v.
Riley,
In
Swearingen
v.
Parkersburg Sentinel Co.,
Defendant further contends that plaintiff’s Instruction No. 1 constituted prejudicial error in submitting
*714
the question of malice to the jury and. in telling them that in considering whether malice existed they could consider the language of the editorials of August 5 and August 9. It argues that no evidence exists to support a finding of malice, and that malice can not be inferred from the language of the editorials. We are not unaware of considerable authority to the effect that where a qualified privilege as to a defamatоry publication has been exceeded or abused, a plaintiff is relieved as to proof of malice. See
Rigney
v.
Keesee,
It should also be observed that the publisher of a newspaper has no greater privilege to publish defamatory matter than any other person. The law of defamation applies alike to all.
Swearingen
v.
Parkersburg Sentinel Co.,
In
Michaelson
v.
Turk,
Defendant relies strongly on
Bailey
v.
Charleston Mail Association,
Though the privileged occasion be admitted, malice be established, and the words sued on be actionable
per se,
plaintiff can not recover if the defendant fairly prove the truth of the defamatory language of the publication, that it was published with good motives, and for justifiable ends. Constitution of West Virginia, Article III, Section 8, quoted above. See
Barger
v.
Hood,
Defendant further contends that the language used in the editorial complained of amounted to no more than fair comment as to matters which it had investigated, believed to be true, and in which it and the public were interested. While it is very generally held that fair *718 comment as to matters of public affairs is not actionable, where sufficient facts exist on which to ground such comment, it appears to be definitely settled that if such comment is unfair or unreasonably violent or vehement, immunity from liability is denied. “Matters of public interest must be discussed temperately. Wicked and corrupt motives should never be wantonly assigned. And it will be no defense that the writer, at the time he wrote, honestly believed in the truth of the charges he was making, if such charges be made recklessly, unreasonably and without any foundation in fact. Some people are very credulous, especially in politics, and can readily believe any evil of their opponents. There must, therefore, be some foundation in fact for the charges made; the writer must bring to his task some degree of moderation and judgment.” Newell, Slander and Libel, Fourth Edition, Section 485.
As above pointed out, however, the charges and imputations contained in the editorial complained of are something very different from mere comment. See
Bailey
v.
Charleston Mail Association, supra; Stewart
v.
Riley, supra; Rigney
v.
Keesee, supra; Kulesza
v.
Chicago Daily News,
Defendant further complains as to the action of the trial court in refusing its offer of certain evidence to the *719 jury, tending to support its pleas of justification and fair comment. Apparently, the evidence was rejected for the reason that it related tо matters not known to defendant at the time of publication of the libelous language. A careful examination of such evidence discloses that the only fact it tended to establish which would support any material allegation of such pleas was the existence of the practice of allotting insurance to members of the Legislature. Such evidence does not, in any manner, connect plaintiff with such practice. Since the existence of such practice was considered as established, and not disputed, defendant, in any event, could not have been prejudiced by the exclusion of such evidence. See 1 M. J., Appeal and Error, Section 305.
Finding no prejudicial error, the judgment of the Circuit Court of Wyoming County must be affirmed.
Affirmed.