Decided 9 April, 1900.
On Motion for Rehearing.
Mr. Justice Beandelivered the opinion.
It is said the court did not instruct the jury, as a rule of law, that payment of witness fees and mileage was a sufficient proof of damages to entitle plaintiff to recover. The only knowledge we have on the subject is the record, which shows that the defendant requested in writing an instruction that ‘ the payment to the defendant of her witness fees and mileage are not such damages as will *27entitle the plaintiff to a verdict, and, unless you find other damages to said plaintiff, the verdict must be for the defendant.” The court not only refused to instruct as requested, but in its charge called the attention of the jury to the contention of defendant in this regard, and instructed them that, “If you find that the plaintiff paid for the attendance of that witness $2.20, you have a right to consider that as damages sustained by the party in the absence of the witness.” The only reasonable interpretation we can give to these- rulings is, as stated in the opinion, that the court intended to and did instruct the jury that payment of the witness fees and mileage at the time of service of the subpoena was a sufficient showing of damages. The other points discussed in the petition were made in the original brief. The authorities referred to were examined before the case was decided, and we were then, and are now, unable to concur in plaintiff’s contention. The petition for rehearing is, therefore, denied. Rehearing Denied.