67 Ark. 386 | Ark. | 1900
(after stating the facts.) The evidence is somewhat voluminous, and no useful purpose will be served by setting it out. After a careful consideration of it, we are unable to agree with the attorney for appellee that “upon the facts a stronger ease for exemplary damages cannot be imagined.” On the contrary, we find no legally sufficient evidence to justify such damages, when the facts are measured by the rule announced by this court in Kelly v. McDonald, 39 Ark. 393: “Exemplai’y damages ought not to be given unless in case of intentional violation of another’s right, or when a proper act is done with an excess of force or violence, or with malicious intent to injure another in his person or property.”
The charge of the court, assuming there was evidence to justify a verdict for exemplary damages, was correct; but,, as we are of the opinion that there was no evidence to warrant a finding by the jury of exemplary damages, the court should have eliminated this branch of the case from their consideration. This is the only error we find in the record, and it can be cured by remittitur, if the appellee so elect. If, therefore, the appellee will remit in 30 days the amount recovered for exemplary damages, the judgment will be affirmed; otherwise, it will be reversed and remanded for new trial.
