No. 6253 | Neb. | Mar 3, 1896
Tbe assignments of error in this case demand no protracted discussion. The first one urged in the-brief is that “tbe court erred in giving instructions-of tbe plaintiff as requested, instructions not being numbered, more than one instruction being given upon tbe same sheet without number, and further giving tbe instructions as requested by tbe plaintiff citing authorities in tbe instructions.” From tbe argument' it would seem that: tbe assignment is merely directed to tbe formal matters referred to; that is, to tbe failure to separately number tbe instructions and to tbe citation, of authorities. No request to have tbe instructions numbered was made on the trial, and no exception was taken to tbe failure to number them. It is well settled that while tbe provisions of the-statute requiring instructions to be separately numbered and marked “given” or “refused,” as tbe case may be, are mandatory, still tbe failure t© observe those requirements presents nothing for review, unless exception was specially taken on that ground. (Tagg v. Miller, 10 Neb., 442" court="Neb." date_filed="1880-07-15" href="https://app.midpage.ai/document/tagg-v-miller-6643098?utm_source=webapp" opinion_id="6643098">10 Neb., 442; Fry v. Tilton, 11 Neb., 456" court="Neb." date_filed="1881-07-15" href="https://app.midpage.ai/document/fry-v-tilton-6643273?utm_source=webapp" opinion_id="6643273">11 Neb., 456; Gibson v. Sullivan, 18 Neb., 558" court="Neb." date_filed="1886-01-15" href="https://app.midpage.ai/document/gibson-v-sullivan-6644641?utm_source=webapp" opinion_id="6644641">18 Neb., 558; Omaha & Florence Land & Trust Co. v. Hansen,
At the end of one of the instructions appears in parentheses the following: “28 Neb., 330.” This is, we presume, the citation referred to in the assignment. In Sioux City & P. R. Co. v. Finlayson, 16 Neb., 578" court="Neb." date_filed="1884-07-15" href="https://app.midpage.ai/document/sioux-city--pacific-railroad-v-finlayson-6644304?utm_source=webapp" opinion_id="6644304">16 Neb., 578, there was a similar complaint. The court disapproved the practice and intimated that when instructions are requested, accompanied by ,such notations, the court, before giving them, ishould erase the notations; but held that in the absence of special circumstances the error was without prejudice, and that a judgment should not be reversed for such a reason, unless prejudice be made affirmatively to appear. This case is precisely like the one cited.
The other assignments argued reduce themselves to two grounds — that the verdict was not sustained by the evidence and that the damages were excessive. The action was for slander by the defendant in error, a girl of sixteen, against the plaintiff in error, a farmer, and presumably a man who should have reached the age of discretion. The words charged imputed that the plaintiff was pregnant by reason of incestuous ‘ intercourse with her father. The answer was a general denial. Witness after witness testified to the publication of the slanderous words in substance .as laid in the petition. The defendant did not ■directly contradict the testimony of a single witness. As to some of the witnesses he said that a portion of their testimony was true and a portion not, without saying what was true and what untrue. As to another, the question and answer were as follows: “Did you make the statement concerning Jennie Campbell as related by George
The verdict was for $1,000, which defendant calmly argues is excessive; His counsel seem to be under the impression that proof of special damage was necessary. It is elementary that words imputing an indictable offense are actionable per se, and that no special damage need be proved.
Judgment affirmed.