Trimble v. Tantlinger

Given, J. [1] 2 I.- Appel!ant’© first complaints are as to certain, rulings in taking the testimony. There is evidence tending to show two conversations in which the defendant spoke concerning the plaintiff, — -one in Leonard’s store, and one in the street near the store. Plaintiff was asked, on cross-examination, how long he stayed in the store, and whether be went in to- inquire if the township trustees had been there. These question© were objected to and objection sustained, as not proper cross-examination. Conceding that the ruling was erroneous, yet there was no prejudice, as the witness proceeded to state that he did not go there to inquire about the township trustees.' Appellant complains that plaintiff’s objection to two questions asked the witness, Horace Page, was sustained, and that plaintiff’s motion to ©trike out all of his ' testimony was also sustained. Page testified to •a conversation between the parties to this suit in Leonard’s store, but failed to fix the time, and showed by his evidence that tire conversation ivas in relation to another matter than that involved in this suit. The testimony was properly idricken out, and, therefore, there was no prejudice in sustaining plaintiff’s objection to the question asked. [4] 5 II. Plaintiff does not allege any damages in his .petition, bnt, after setting out the speaking of the words, concludes, hi®, petition as follows: “Wherefore, plaintiff .asks judgment against defendant for1 two thousand dollars and costs.” Appellant contends, that, no. damages being alleged, the court erred in instructing the jury that, if they found for the plaintiff, they should allow him such damages as they believed he suffered by the use of such language. He -also contends that, from the amount returned by the jury, they must have found exemplary damage®, and that no such damages could be recovered under the pleadings. By the instructions', the jury were directed to inquire as to actual damages only. They were told to., “estimate as near as you can, the amount of actual injury that the plaintiff would naturally sustain by reason of the statement made by the defendant.” We may not presume1, under these instructions, from the amount returned, that the jury .allowed exemplary damages. The slanderous, words alleged to have been spoken being actionable per se, special damage®, need not be alleged nor proven. Parker v. Lewis, 2 G. Greene, 311; Hicks v. Walker, 2 G. Greene, 440. There was no error in the instructions in the respect complained of. 6 III. Appellant’s motion for a new trial was- based upon the grounds .already considered, and upon the further ground of newly-discovered evidence, as to which a number of affidavits were filed. We will not set out nor discuss these affidavits at length. It is sufficient to say that their general tenor is to show that witnesses- for plaintiff, particularly one J. L. Evans-, made statements out of court at variance with the testimony given on the tidal. While the purpose of such testimony is impeaching, it may not be within the rule that refuses a new trial upon the ground [669] of newly discovered evidence .as to the character or general reputation of a witness. We think, however, that this alleged newly-discovered evidence was so far cumulative that the court was warranted in refusing a new trial on that ground. We find no. err or in the record prejudicial to appellant, .and the judgment of the dis>trict court is therefore affirmed. Monday, February 7, 1898. Ranch & Bradley, Remley,-Ney & Remley, and Joe A. Edioards for appellant. Etoing & Hart and S. H. Fairall for appellee.