18 Kan. 523 | Kan. | 1877
The opinion of the court was delivered by
“Now before you can allow this kind of damages at all, you must find that there was in this case on the part of the • defendant, mingling in the transaction complained of, either fraud, malice, gross negligence, oppression, or violence. And if you shall so find either of these, you can allow for it. Gross negligence means, the want of slight diligence; and slight diligence means, the lack of that care and prudence in and about a transaction which persons of less than common prudence would use and exercise.
“But again, our supreme court has said that you must find that this negligence is not only gross, but wanton also. And wanton means, a licentious act by one person toward another, without regard to his rights, or again, it is a reckless disregard of another’s rights.”
The subject of exemplary damages has several times been passed upon in this court. In Wiley v. Keohuk, 6 Kas. 91, it is said: “Whenever the elements of fraud, malice, gross negligence, or oppression, mingle in the controversy, the law allows the jury to give what is called exemplary or vindictive
Counsel for the plaintiff in error criticise the word “licentious,” as inapt, in this connection. Even if this be conceded, we do not think it at all misleading. In the instructions given, the courtf followed the law as heretofore laid down by this court. We' see no reason to change the views hitherto expressed by us, and must therefore sustain the instructions.
We do not see that plaintiff in error was prejudiced by the failure to submit to the jury the first six of the questions prepared by it. The questions that were submitted brought out all the facts material in the case. Neither do we think $800 an excessive allowance for exemplary damages. The purpose, of such damages being partially at least punishment to the wrongdoer, and to deter from similar wrongs, it must not be expected that they be merely commensurate with the damages actually done. Not that we would be understood as holding that even in a case properly calling for exemplary damages, the action of the jury is conclusive and beyond supervision. But simply this appears to us, that if in this case exemplary damages are proper, $800 therefor is not so large an allowance as to justify any interference with the verdict.