On Petition for a Rehearing.
Niblack, J.— It was made to appear at the trial that the appellant's first wife died in February, 1877, and that at that time the appellee was a young woman, apparently just grown.
The appellant testified that after his wife's death the appellee came to his house more frequently than before, and under circumstances sometimes disagreeable to him, and often calculated to provoke criticism as to the propriety of her visits..
Mrs. Amanda Lee, the mother of the appellee, and introduced as a rebutting witness on her behalf, testified that she was acquainted with the first wife of the appellant, and was present at the time of her death. Counsel for the appellee then asked the witness if she had a conversation with the said first wife of the appellant just before her-death? The witness answered in the affirmative. She was then, also, asked by appellee's counsel, to state that conversation. Counsel on the other side inquired if the appellant was present when the conversation occurred. To this the witness answered that she did not remember whether he was or not. Thereupon the appellant’s counsel objected to the witness answering the question, but the objection was overruled, and the witness answered that Mrs. Knight requested the appellee to iron and fix her underclothes, and dress her after her death. Counsel for the appellant argued in their original brief, that the court erred in permitting Mrs. Lee to answer as above, and they now complain that the question thus made by them was not ruled upon in the original opinion filed in this cause.
Upon the evidence set out as above, the appellant assigned as a cause for a new trial, that the court erred in admitting in evidence the testimony of Mrs. Lee, such testimony consisting of a conversation between her and the appellant’s deceased wife, and now contends that the testimony of Mrs. Lee was *207erroneously admitted, because it was not shown that he, the appellant, was present at, or in any way a party to, the conversation referred to.
In the first place, the answer of Mrs. Lee did not disclose anything amounting to a conversation between her and the deceased wife of the appellant. It purported only to state that the witness had heard Mrs. Knight make a request of the appellee. The recitals, contained in the bill of exceptions concerning the testimony of Mrs. Lee, do not, therefore, sustain the allegations made in the cause for a new trial assigned upon it. In the next place, we are unable to say that the appellant had any reason to complain of the testimony of Mrs. Lee.
‘Her testimony tended to show the existence of former pleasant, and even friendly, relations between the families of the parties, and to afford some reason at least for a belief on the part of the appellee that her visits to the house of the appellant would not be unfavorably regarded by him.
The appellant, also, assigned as a cause for a new trial, that the damages were excessive, and he now also complains that we did not rule on that question in the original opinion. But the question reserved by this cause for a new trial was neither discussed nor insisted upon in the appellant’s original brief. The appellant’s argument went upon the theory that the appellee was not upon the whole case entitled to recover anything, and the amount of the damages was only incidentally mentioned in his original brief. The claim that the damages were excessive was, therefore, impliedly waived by the appellant in his argument here.
Besides, this court will not reverse a judgment rendered in an action for slander on the ground, of excessive damages, unless the damages assessed by the jury are so outrageously excessive as to induce the belief that the jury acted from prejudice, partiality or corruption. Alexander v. Thomas, 25 Ind. 268.
If the appellee was entitled to recover anything in this action, we can not say that the amount assessed was excessive.
*208As was intimated in the original opinion, this case is not .an entirely satisfactory one to us upon the evidence, but no such error has been shown as would authorize us to reverse the judgment.
The petition for a rehearing is consequently overruled.