Emerson v. Miller

McClain, J. 1 While there is some conflict in the evidence as to whether the language imputed to defendant was substantially used by him, there is ample evidence to sustain the verdict of the jury, and it is not our province to determine the weight of the evidence one way or another. It is well settled that proof of the use of words substantially the same in meaning as those charged is admissible in actions for slander, and that it is not necessary to prove the exact words used as alleged. 18 Am. & Eng. Enc. Law (2 Ed.) 1078. 2 Evidence was introduced on the part of defendant tending to show that, prior to the use of whatever language he did use toward plaintiff on the occasion referred to, the plaintiff applied opprobrious epithets to, and made insulting remarks about, defendant’s children. The court, in its charge, told the jury that if the words complained of were spoken in the heat of passion, occasioned by plaintiff’s abuse of defendant’s children, that fact should be taken into consideration in behalf of defendant; and this was all that defendant could ask. The alleged conduct of plaintiff would not be a justification for defendant’s wrong. The fact that defendant would not be liable if the words [317] spoken were not used or understood as imputing want of chastity, but only for the purpose of returning the insult thrown out against defendant’s family, was covered by a paragraph of the court’s charge in which it was stated that if the words were not intended by/defendant, nor understood by the hearers, to impute want of chastity, then defendant was not liable. These parties may both have been in the wrong, but the jury has passed on the question in the light of the evidence. 3 Appellant also complains of an instruction to the effect that the words should be presumed to have been used in their ordinary meaning, and that it was for defendant, by proof, to overcome such presumption by showing that the words spoken were not so intended and understood by the speaker and those who heard him. It seems to us, however, that this instruction was correct. The-burden was not in the first instance on the plaintiff to show not only the use of slanderous language, but also the intention of defendant to use the words in their ordinary meaning, and that the words so used were understood by those hearing them as conveying that meaning. 4 Appellant’s principal contention is* however, that the damages were excessive. But the amount of damages to be allowed in an action where the words used are slanderous per se, and where punitive damages may properly be allowed, is peculiarly within the discretion of the jury. 5 Erom the record as set out in the abstract, it appears-that after judgment was rendered it was assigned by appellee to her attorneys of record; and appellant asks, in a motion submitted with the case, that said assignees-be substituted as the real parties in interest, instead of plaintiff, in this court. We know of no authority-for any.such proceeding. By Codq, section 3476, it is provided that no action shall abate by the transfer of any in [318] tere'st therein during its pendency, and new parties may be brought in as may be necessary. It has been repeatedly held that the transfer of an interest in an action pending does not necessitate the substitution of a new party for the one in whose name the action has been commenced. See notes to the section of the Code above referred to. Moreover, the mere fact of an assignment does not show that plaintiff is not still the real party in interest. The assignment may have been for the purpose of collection, or to secure an indebtedness, or for various other purposes. There is no statutory provision whatever, so far as we know, for the substitution in this court of any other person than the appellee in order that the appeal may be prosecuted against him.— Affirmed.