
    Yates v. Mullins.
    (Decided March 18, 1930.)
    
      C. R. LUKER for appellant.
    W. E. BEGLEY and FINLEY HAMILTON for appellee.
   Opinion of the Court by

Judge Willis

Affirming.

Joe Mullins, an infant suing by bis next friend, instituted an action against W. F. Yates to recover damages for alleged slander. Plaintiff recovered a judgment for five hundred dollars and the defendant bas appealed. Tbe grounds for reversal urged upon tbe appeal will be considered in tbe course of tbe opinion.

1. Tbe firsUpoint presented is that tbe evidence was not sufficient to sustain tbe verdict. One witness testified to tbe effect that defendant spoke tbe slanderous words as alleged. Tbe defendant denied speaking tbe words, wbicb presented a conflict in tbe evidence, but did not render tbe verdict against tbe evidence. _ When there is evidence to sustain a verdict, a new trial may not be granted because of a conflict in tbe testimony. It is tbe function' of tbe jury to determine tbe credibility of witnesses and to deduce tbe truth from tbe conflictng tendencies of tbe proof. Security Finance Co. v. Cook, 223 Ky. 124, 3 S. W. (2d) 187; Westfall v. Com., 228 Ky. 587, 15 S. W. (2d) 467.

2. It is next argued that tbe words spoken of and concerning tbe plaintiff were not actionable per se. Tbe petition alleged that on tbe night of April 6, 1929, tbe store bouse of one Hoskins bad been broken into and robbed. It then charged that on the following day, tbe defendant spoke of the plaintiff and another that they were tbe ones that bad-broken into tbe store bouse of Hoskins. Language must be understood in tbe light of tbe circumstances under which it was spoken. It is plain tbe petition charged tbe speaking of words which were calculated to be understood as cbargng tbe plaintiff with tbe commission of a felony. Ray v. Shemwell, 186 Ky. 442, 217 S. W. 351. It is undisputed that words, which impute tbe commission, of a . crime involving moral turpitude, for which tbe defendant might be indicted and punished, are slanderous per se. Hickerson v. Masters, 190 Ky. 168, 226 S. W. 1072; Walker v. Tucker, 220 Ky. 363, 295 S. W. 138, 53 A. L. R. 547; Spears v. McCoy, 155 Ky. 1, 159 S. W. 610, 49 L. R. A. (N. S.) 1033; Abbott v. Vinson, 230 Ky. 786, 20 S. W. (2d) 995.

,3. It is next insisted that tbe court erred in instructing tbe jury. The defendant offered a series of instructions which thé court refused to give, but four of tbe instructions given by tbe conrt were not materially different from tbe ones offered by tbe appellant. The court gave an instruction on punitive damages of which complaint is made. When tbe slanderous words are actionable per se there is a presumption of malice, and it is proper to instruct tbe jury that they may, in their discretion, allow punitive damages. Courier-Journal Printing Co. v. Sallee, 104 Ky. 335, 47 S. W. 226, 20 Ky. Law Rep. 634; Penna. Iron Works Co. v. Voght Machinery Co., 139 Ky. 497, 96 S. W. 551, 29 Ky. Law Rep. 861, 8 L. R. A. (N. S) 1023, 139 Am. St. Rep. 504. Tbe defendant did not introduce evidence in mitigation, but denied speaking tbe words, and, if tbe slander was uttered by him, as shown by the testimony, tbe court was justified in instructing the jury as it did on tbe qircumstances under which punitive, damages could be allowed. Hob-son, Blaine & Caldwell on Instructions, sec. 323. Appellant relies upon the case of Commercial Tribune Pub. Co. v. Haines, 228 Ky. 483, 15 S. W. (2d) 306, but it was held in that case that an instruction on punitive damages was proper when the publication was both malicious and false. We find no merit in the criticism of the instructions.

4. Complaint is made that incompetent and irrelevant evidence was admitted. The complaint is addressed to some evidence respecting the arrest and incarceration of the plaintiff subsequent to the speaking of the alleged slander. The evidence was incompetent. The court, however, upon further consideration, excluded the evidence from the consideration of the jury and admonished that tribunal, as emphatically as could well be done, not to consider that particular testimony. No request was made fo discharge the jury, or any claim asserted that the jury was prejudiced by the evidence beyond the power of correction by the admonition of the court. Appellant took his chances in going on with the trial. Epling v. Com., 233 Ky. 407, 25 S. W. (2d) —. The court-having told the jury that the evidence was wholly immaterial and must be disregarded, did all that was exacted by the exigencies of the occasion.

5. It is finally insisted that a new trial should have been granted upon appellant’s motion based upon newly discovered evidence. A witness for the plaintiff testified at the trial to the effect that the slanderous words were spoken on the porch of appellant’s store on the day after the store of Hoskins was robbed. Defendant had no witnesses present to corroborate his own denial of that testimony. After the trial, he filed an affidavit to the effect that he had discovered that the conversation between him and plaintiff’s witness on the occasion mentioned was overheard by his two children and another, and the affidavits of the three persons were filed supporting the testimony of defendant. Counter affidavits were filed tending to show that the witnesses could not have overheard the conversation. The circuit court ruled that the evidence was not sufficient to authorize a new trial. Considering the fact that two of the witnesses^ were defendant’s own children and ought to have been discovered sooner, and the further fact that the new evidence, if introduced, would be cumulative and contradicted, we do not think the court abused a sound discretion in refusing to grant a new trial. Isgrig v. Jacoby, 199 Ky. 744, 251 S. W. 945; Johnston v. Williams, 187 Ky. 764, 220 S. W. 1057. It is argued that the amount of the verdict was unwarranted by the evidence, ut it is á serious thing wrongfully to accuse a young man of the commission of a felony, and we cannot say that the amount of the verdict indicated any passion or prejudice on the part of the jury. The amount of damages in such cases is largely in the discretion of the jury (Compton v. Wilkins, 164 Ky. 634, 176 S. W. 36; Pitman v. Drown, 176 Ky. 263, 195 S. W. 815), and a verdict will be set aside on that ground only when it appears to have resulted from passion or prejudice on the part of the jury.

The judgment is affirmed.  