Opinion by
Mr. Chief Justice McBride.
1. In the absence of any allegation of special damages for loss of the wife’s services by reason of her sickness, the plaintiff cannot recover. For this sickness and inconvenience, if the wrongful act of defendant caused it, she has her own action against him; and it was error to admit the testimony.
2. The evidence as to the willful and malicious nature of the taking is conflicting, and the jury may have been justified in finding that it was malicious, and in giving punitive damages; but it was error for the court to instruct them as it did, in substance, that in ease the taking was malicious it was their duty to give such damages. While the court instructed the jury that the amount of such damages was in their discretion, the purport of the whole instruction was to the effect that in ease they found the act to be malicious they must award some amount by way of punishment. This is not the law. .The authorities will be found so thoroughly collated in Fink v. Thomas, 66 W. Va. 487" court="W. Va." date_filed="1909-12-14" href="https://app.midpage.ai/document/fink-v-thomas-8176526?utm_source=webapp" opinion_id="8176526">66 W. Va. 487 (66 S. E. 650), as reported in 19 Ann. Cas. 571, and in the notes appended in the latter publication, that further citation of authorities is unnecessary.
3. The court in the case at bar correctly defined punitive damages, and otherwise than in the matters noted the trial was without error. The amount involved is small, and, the whole evidence being before us, we are satisfied therefrom that the judgment *418against defendant for $167 was very moderate and that this case ought not to he sent hack for retrial.
4, 5. Section 3 of Article YII of the Constitution, as amended November 8, 1910, is as follows:
“In actions at law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict. Until otherwise provided by law, upon appeal of any case to the Supreme Court, either party may have attached to the bill of exceptions the whole testimony, the instructions of the court to the jury, and any other matter material to the decision of the appeal. If the Supreme Court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial; or if, in any respect, the judgment appealed from should lie changed, and the Supreme Court shall be of opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal to the Supreme Court; provided, that nothing in this section shall be construed to authorize the Supreme Court to find the defendant in a criminal case guilty of an offense for which a greater penalty'is provided than that of which the accused was convicted in the lower court”: Laws 1911, p. 7.
It seems appropriate here to define the limits and extent of the jurisdiction of this court under this section, which was evidently adopted with a view to prevent a multiplicity of retrials in the Circuit Court. The plain intent seems to be that no error shall be cause for a reversal if the court with all the testimony before it can determine what judgment ought to be *419given. The first question before the appellate court, therefore, is: Was any error of law committed by the lower court? The second, Has this court, with the record and testimony before it, sufficient data upon which to retry the case and determine what judgment ought to be rendered upon the law and the facts? It has frequently been contended that such a course renders nugatory that part.of the section which provides that the right of trial by jury shall be preserved; but it should be remembered that appeal to this court is not a constitutional right, being* merely a statutory privilege. State v. Security Savings Co., 28 Or. 410" court="Or." date_filed="1896-01-13" href="https://app.midpage.ai/document/state-v-security-savings-co-6896993?utm_source=webapp" opinion_id="6896993">28 Or. 410, (43 Pac. 162); Catterlin v. Bush, 39 Or. 496" court="Or." date_filed="1901-08-15" href="https://app.midpage.ai/document/catterlin-v-bush-6898674?utm_source=webapp" opinion_id="6898674">39 Or. 496 (59 Pac. 706, 65 Pac. 1064); Sears v. Dunbar, 50 Or. 36 (91 Pac. 145). An appeal being then a statutory privilege, and not a constitutional right, an appellant who would otherwise be without remedy must exercise such privilege subject to such conditions as may be imposed by the Constitution or statutes. The provision of the Constitution above quoted says, in effect, to a dissatisfied litigant: “You may appeal, but you take this privilege subject to the power of the appellate court to retry your case and render any judgment it sees fit.” It will be observed that this right is given in the broadest terms and with only one limitation, namely, that the appellate court may not find the defendant in a criminal case guilty of an offense for which a greater penalty is prescribed than that of which the accused was convicted in the lower court. This exception proves the rule and indicates the intent of the law-making power, in this instance the people, to invest this court with power, if in its judgment such course seems proper, to retry cases erroneously tried in the court below.
*4206. Many instances have occurred and others, doubtless, will occur, when a trial by a jury may seem more likely to promote justice than a trial upon the record presented to this court; but this, in our judgment, is not such a case. This statement of our views must be taken with the explanation that we cannot undertake to retry any fact found by a jury properly impaneled and instructed when there is any evidence to support its verdict.
Being satisfied from the testimony that the amount of damages found by the jury was not excessive, and was such as fairly seems to have followed defendant’s unlawful conversion of plaintiff’s property, the judgment is affirmed. Affirmed.
Me. Justice Moore, Mr. Justice Burnett and Mr. Justice Ramsey concur.