ON MOTION FOR REHEARING. (Filed December 3, 1940.) In the petition for rehearing upon the part of the respondent,[14] strenuous objection is made to the action of this court in sending the matter back for a new trial, rather than finally disposing of it by reducing the award. In its answer to the petition for rehearing and in its objections, the appellant joins with the respondent in praying that this court make the reduction so as to end this litigation.
The sole testimony as to damage sustained by the respondent is as follows:
"Q. And what effect did this statement [Cobb's] have upon you? A. Well, it made me sick; I was sick over it. I went that night over to McMahon's and got my clothes and told her about it and told her I didn't know what it was all about, and I was real scared to go any place. *Page 45
"Q. And how did it make you feel when you met your friends? A. Well, I just was ashamed to visit anybody, with them thinking I passed a check, a no good check; they all look at you in accusing me of things."
As stated in the original opinion, the slander was not repeated to anyone except the respondent's mother by appellant through its employee.
In the opinion in chief we indicated our unwillingness to attempt to indicate what the proper award should have been, or to state the dividing point at which we would consider an award would enter the realm where its allowance would have shocked the conscience of the court, and this for the reason that such action on our part would constitute a usurpation of the province of the jury and of the trial court.
The meagerness of the testimony in this case greatly increases the force and effect, in the determination of the amount of the award, of the appearance of the witnesses — particularly the plaintiff — on the witness stand. This court did not have the opportunity of observing the witnesses personally, and since the amount of the award in a slander case depends so greatly upon the effect of the slander on the plaintiff, the record before us affords no reasonable basis on which this court may assume to state the damage.
We appreciate the desirability of ending this litigation, and it should not be necessary to point out to counsel that since they are both willing to have us here fix the amount of the award, they should have no difficulty in effecting a just compromise and end the litigation by their own action.
Each party will pay his own costs on this appeal.
The petition for rehearing is denied.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES MORRIS and ARNOLD concur.