On Motion for Rehearing.
[10,11] It is urged by appellant that it was error to refuse a special charge that if the jury found “from the evidence that defendant called plaintiff a thief and accused her of having stolen a ring as charged in the petition, and‘that by reason thereof she has suffered any of the actual damages alleged in her petition,” exemplary damages could also be awarded by the jury. It was alleged in the petition that the charge was made “in the presence and hearing of divers persons, among the number the daughter of appellant, and the court in the charge instructed a verdict for appellee only on his proof that he “did not in the presence and hearing of divers other persons use the language complained of in the plaintiff’s petition.” That was the only condition presented to the jury upon which they could find for appellee, and a verdict for him was necessarily a finding that he did not use the language imputed to him, and therefore under that finding there could be no actual damages, nominal or otherwise, and consequently there was nothing upon which to base a finding for exemplary damages. Appellant recognized that principle in the special charge requested.. Exemplary damages in slander cases depend upon proof of the utterance of the defamatory words, and that they were published maliciously or wantonly. If, as the jury must have found, no defamatory words were uttered, there were no damages of any kind, and appellant could not have been injured by a refusal to give the charge which imperfectly sought to present the question of exemplary damages.
The motion is overruled.