storm, she may recover exemplary damages. (*) So where a passenger was wrongfully ejected from a railroad train with rudeness and violence, he may recover exemplary damages; (') but mere indecorous conduct in expelling a passenger is held not to be sufficient cause for their infliction.(c)

§ 366. For wantonness of injury.—If the injury was wantonly inflicted, exemplary damages may be recovered. (4) By wantonness is meant reckless disregard of the rights of others, or of the consequences of the act. Thus in Baltimore & Yorktown Turnpike Road v. Boone,(*) where the company exacted illegal fare and the plaintiff, on his refusal to pay, was forcibly ejected, it was held that he could recover exemplary damages on the ground that the company had been guilty of a criminal indifference to the obligations of public duty, which amounted to malice.

§ 367. For fraud.-If the injury was inflicted through fraud, there are intimations that this alone would afford ground for exemplary damages; (') it is difficult to see how a fraudulent tort can be accomplished without a malicious intent.

$368. For gross negligence.-In Wilson v. Brett, (*) Rolfe, B., said that he could see no difference between

(*) Redfield v. Redfield, 75 Ia. 435.

() P. W. & B. R.R. Co. v. Larkin, 47 Md. 155; Knowles v. N. S. R.R. Co., 102 N. C. 59.

(c) L. & N. R.R. Co. v. Ballard, 85 Ky. 307.

(4) Dibble v. Morris, 26 Conn. 416; Kilbourn v. Thompson, 1 McA. & M. 401; Sherman v. Dutch, 16 Ill. 283; Louisville & N. R.R. Co. v. Ballard, 85 Ky. 307; Webb v. Gilman, 80 Me. 177; Sapp v. North C. Ry. Co., 51 Md. 115; Goetz v. Ambs, 27 Mo. 28; Green v. Craig, 47 Mo. 90; Phila. Traction Co. v. Orbann, 119 Pa. 37; Hoadley v. Watson, 45 Vt. 289; Borland v. Barrett, 76 Va. 128.

(*) 45 Md. 344.

(f) L. & N. R.R. Co. v. Ballard, 85 Ky. 307; but see coutra, Singleton v. Kennedy, 9 B. Mon. 222.

(5) 11 M. & W. 113.

§ 368.

FOR GROSS NEGLIGENCE.

529

negligence and gross negligence; that it was the same thing with the addition of a vituperative epithet, and this observation has been quoted with approval in later cases. (*) In Railroad Co. v. Lockwood,() Mr. Justice Bradley, after stating the distinctions commonly drawn between slight, ordinary and gross negligence, said: "In each case the negligence, whatever epithet we give it, is failure to bestow the care and skill which the situation demands; and hence it is more strictly accurate perhaps to call it simply negligence.' And this seems to be the tendency of modern authorities." In these cases, however, the question was not considered with reference to exemplary damages, but to the amount of care due from the defendants in their respective situations. Whether little or great care is due, a dereliction from that amount is, in each case, negligence, and creates a liability; but one upon whom a duty is imposed may fall a little or far below the line dividing liability from impunity, and it is not improper, when the latter is the case, to apply the term "gross" to the defendant's dereliction, having reference, however, merely to the character of his acts and not to his liability. The allowance of exemplary damages depends upon the bad motive of the wrong-doer as exhibited by his acts. Where, therefore, the acts fall short of wilful misconduct, or that entire want of care which would raise the presumption of a conscious indifference to consequences, exemplary damages should not be given. Gross negligence, so far as right of action is concerned, is, as Rolfe, B., said, only negligence with a vituperative epithet; as a malicious wrong, so far as right of action goes, does not differ from

(^) Grill v. General I. S. C. Co., 12 Jur. N. S. 727; McPheeters v. Hannibal & St. J. R.R. Co., 45 Mo. 22; Milwaukee & St. Paul Ry. v. Arms, 91 U. S. 489; and see Steamboat New World v. King, 16 How. 469.

(1) 17 Wall. 357, 383.

VOL. I.-34

any other wrong. But as malice, though not making the act legally more wrongful, may be a ground for exemplary damages, so may grossness of negligence in the sense explained above; and the term so explained is open to no objection, and accords with its use in common speech.

Gross negligence, then, in the sense of culpable indifference to consequences, is usually held to be a good ground for the allowance of exemplary damages;(*) in this sense it is therefore such negligence as evinces a conscious indifference to consequences;() as, for instance, where the owner of a furious dog knowingly allowed it to run at large. (©)

369. Circumstances preventing the allowance of exemplary damages.-As the ground of allowing exemplary damages is the evil motive of the defendant, all circumstances showing that he had no such motive may be

(*) Emblen v. Myers, 6 H. & N. 54; U. S. v. Taylor, 35 Fed. Rep. 484; Mobile & M. R.R. Co. v. Ashcraft, 48 Ala. 15; Lienkauf v. Morris, 66 Ala. 406; C. S. Ry. Co. v. Steen, 42 Ark. 321; W. U. Tel. Co. v. Eyser, 2 Col. 141; Linsley v. Bushnell, 15 Conn. 225; Kilbourn v. Thompson, 1 McA. & M. 401; Frink v. Coe, 4 Greene (Ia.) 555; Cochran v. Miller, 13 Ia. 128; Bowler v. Lane, 3 Metc. (Ky.) 311; Fleet v. Hollenkemp, 13 B. Mon. 219; Kountz v. Brown, 16 B. Mon. 577; Wilkinson v. Drew, 75 Me. 360; Vicksburg & J. R.R. Co. v. Patton, 31 Miss. 156; Memphis & C. R.R. Co. v. Whitfield, 44 Miss. 466; Hopkins v. A. & St. L. R.R. Co., 36 N. H. 9; Taylor v. G. T. Ry. Co., 48 N. H. 304; Caldwell v. N. J. S. B. Co., 47 N. Y. 282; Pittsburgh C. & S. L. Ry. Co. v. Lyon, 123 Pa. 140; Byram v. McGuire, 3 Head 530; Kolb v. Bankhead, 18 Tex. 228. Contra, under the California code: Yerian v. Linkletter, 80 Cal. 135.

() M. & St. P. Ry. Co. v. Arms, 91 U. S. 489; Lienkauf v. Morris, 66 Ala. 406; Moody v. McDonald, 4 Cal. 297; Kolb v. O'Brien, 86 Ill. 210; Louisville N. A. & C. Ry. Co. v. Shanks, 94 Ind. 598; Kansas P. Ry. Co. v. Little, 19 Kas. 267; Kentucky C. R.R. Co. v. Dills, 4 Bush 593; Jacobs v. L. & N. R.R. Co., 10 Bush 263; Bannon v. B. & O. R.R. Co., 24 Md. 108; Chicago, St. L. & N. O. R.R. Co. v Scurr, 59 Miss. 456; Fisher v. Met. El. Ry. Co., 34 Hun 433; Cotton Press Co. v. Bradley, 52 Tex. 587; Pickett v. Crook, 20 Wis. 358.

() Von Fragstein v. Windler, 2 Mo. App. 598; Meibus v. Dodge, 38 Wis.

§§ 370–372. IN ACTIONS FOR PERSONAL INJURY.

531

proved, to prevent the allowance of such damages: if they show that the defendant's malice was slight, they may be proved to mitigate exemplary damages. Proof of such circumstances for either purpose will be more fully dis

cussed later. (*)

$370. In what actions exemplary damages may be recovered.—Ordinarily exemplary damages are allowed only in actions of tort. In actions of contract, exemplary damages cannot be recovered.() An exception is the action for breach of promise of marriage. In that action it is held that if the engagement to marry was broken with circumstances of abruptness and humiliation, exemplary damages may be recovered. () It has been held in some cases that if the condition of a bond given in pursuance of a statute is broken by the commission of a tort, such as would be a proper cause for exemplary damages; such damages may be recovered in an action on the bond. (4) This is contrary, however, to the current of authority, which is to the effect that only compensatory damages can be recovered in an action on a statutory bond.(*)

§ 371. Not recoverable in equity.-Where a court of equity has power to award damages, it cannot go beyond compensation; by applying to such a court, the complainant waives all claim to exemplary damages. (')

$372. In actions for personal injury.-Exemplary damages may be recovered, in the proper case, in an action. (*) §§ 383-386.

(*) Guildford v. Anglo-French S.S. Co., 9 Can. 303.

(c) McPherson v. Ryan, 59 Mich. 33; Johnson v. Jenkins, 24 N. Y. 252; Thorn v. Knapp, 42 N. Y. 474.

(4) Floyd v. Hamilton, 33 Ala. 235; Richmond v. Shickler, 57 Ia. 486; Renkert v. Elliott, 11 Lea 235.

(*) Cobb v. People, 84 Ill. 511; McClendon v. Wells, 20 S. C. 514. () Bird v. W. & M. R R. Co., 8 Rich. Eq. 46.

of assault and battery, (*) false imprisonment, (") malicious prosecution, () or other injury to the person, as where the plaintiff was wrongfully and wantonly ejected from a railroad train.(4) In Mississippi it has been held that where a passenger is wilfully carried beyond his station he may recover exemplary damages. (*)

$373. For injury to property.—Exemplary damages may in a proper case be recovered for a wilful injury to land, as for a malicious trespass () or flowing of

(*) Bundy v. Maginness, 76 Cal. 532; Smith v. Bagwell, 19 Fla. 117; McNamara v. King, 7 Ill. 432; Reeder v. Purdy, 48 Ill. 261; Drohn v. Brewer, 77 Ill. 280; Harreson v. Ely, 120 Ill. 83; Root v. Sturdivant, 70 Ia. 55; Titus v. Corkins, 21 Kas. 722; Slater v. Sherman, 5 Bush 206; Pike v. Dilling, 48 Me. 539; Webb v. Gilman, 80 Me. 177; Baltimore & Yorktown Turnpike v. Boone, 45 Md. 344; Elliott v. Van Buren, 33 Mich. 49; Green v. Craig, 47 Mo. 90; Cook v. Ellis, 6 Hill 466; Louder v. Hinson, 4 Jones L. 369; Porter v. Seiler, 23 Pa. 424; Newell v. Whitcher, 53 Vt. 589; Borland v. Barrett, 76 Va. 128; Shay v. Thompson, 59 Wis. 540.

() Huckle v. Money, 2 Wils. 205; Bradley v. Morris, Busbee 395; McCarthy v. De Armit, 99 Pa. 63; Gingras v. Desilets, Cass. Can. Dig. 116; Clissold v. Machell, 26 Up. Can. Q. B. 422.

() Donnell v. Jones, 13 Ala. 490; Coleman v. Allen, 79 Ga. 637 (by code); Parkhurst v. Masteller, 57 Ia. 474; McWilliams v. Hoban, 42 Md. 56; Peck v. Small, 35 Minn. 465; Winn v. Peckham, 42 Wis. 493; Spear v. Hiles, 67 Wis. 350.

(4) Dalton v. Beers, 38 Conn. 529; Georgia R.R. Co. v. Olds, 77 Ga. 673 (by code); Jeffersonville R.R. Co. v. Rogers, 38 Ind. 116; P. W. & B. R.R. Co. v. Larkin, 47 Md. 155; Knowles v. N. S. R.R. Co., 102 N. C. 59. (*) Higgins v. L. N. O. & T. R.R. Co., 64 Miss. 80; Dorrah v. I. C. R.R. Co., 65 Miss. 14.

(1) Brewer v. Dew, 11 M. & W. 625 ; U. S. v. Taylor, 35 Fed. Rep. 484; Devaughn v. Heath, 37 Ala. 595; Clark v. Bales, 15 Ark. 452; Waters v. Dumas, 75 Cal. 563 (by code); Curtiss v. Hoyt, 19 Conn. 154: Shores v. Brooks, 81 Ga. 468; Cutler v. Smith, 57 Ill. 252; Chicago & I. R.R. Co. v. Baker, 73 Ill. 316; Keirnan v. Heaton, 69 Ia. 136; Hefley v. Baker, 19 Kas. 9; Jennings v. Maddox, 8 B. Mon. 430; Ames v. Hilton, 70 Me. 36; Briggs v. Milburn, 40 Mich. 512; Craig v. Cook, 28 Minn. 232; Parker v. Shackelford, 61 Mo. 68; Newman v. St. L. & I. M. R.R. Co., 2 Mo. App. 402; Perkins v. Towle, 43 N. H. 220; Winter v. Peterson, 24 N. J. L. 524; Allaback v. Utt, 51 N. Y. 651; Day v. Holland, 15 Ore. 464 (semble); Windham v. Rhame, 11 Rich. L. 283; Jefcoat v. Knotts, 11 Rich. L. 649; Greenville &