*1 lower court was 21 P. 180. The mer, (2d) Colo. right. therefore affirmed.
Judgment Moore and Mr. Justice Adams Mr. Justice Chief concur.
No. 13,118. Starkey et Dameron. al. 1112)
(21 [2d] May petition second Rehearing denied Dеcided March. 1933. May rehearing denied in error. plaintiffs Mr. Fancher Sarchet, in error. defendant Messrs. Connell, Rinn & En Banc. court, delivered the Burke
Mr. Justice and wife and are error are husband Plaintiffs *2 defendants, or Mr. and Mrs. hereinafter referred to as as Starkey. Dameron, is herein- Defendant in James error, plaintiff. after referred to as years аge, brought seventeen of
Plaintiff, this action against injuries by discharge defendants for received the spring gun gasoline pump of a in an concealed automatic filling alleged by operated at a station to have been de- prayer compensatory fendants. ages, His was $5,000 dam- body damages, $2,000 and for execution. against verdict The pensatory was both defendants, for com- $100 joint damages, $2,000 and and a Body judgment accordingly. and several was entered against Starkey, fixing execution was issued Mrs. her imprisonment thirty days, against term of at and Mr. Starkey, fixing his term at six months. To review that Starkey prosecute this writ. Mrs. defendants stay moved for a the final determina- execution “until ’’ Starkey motion; tion of said cause. Mr. made no such supersedeas. applied and nеither said motion for a On stay supersedeas of execution or- was, however, Starkey by dered to Mrs. of counsel. Mr. consent Starkey jail. presumably is filling quеstion operated by
That the station in was Starkey, gun, spring plain- Mr. that he the that set and injured, undisputed. Starkey tiff was are Mrs. contends that she was not interested in the station and was not a party to the installation and maintenance of the device. Starkey justified setting Mr. maintained that he was spring gun repeated gаsoline because thefts protection station; from the he that set it as a against plaintiff injured trying and that theft, while gasoline. position subject to steаl Plaintiff’s on this that automatic out of device was that order, he had deposited money steal; no intention he that his injured got gasoline; attempting no thаt he why, deposit. or to recover to ascertain his Starkey’s question of Mrs. interest in the On the gun, responsibility spring’ the most for' the station and conflicting; and the evidence was that can be said is that by judg we are bound under well rule established ment. given ‘You Instruction No. the court reads: Lewis defendant, that in this the damages instruсted case Starkey, respond is liable being any injuries consequence his sustained pump question, by spring gun shot in the automatic you questions the amount to determine are, or not whether to which entitled, Starkey, whether or not liable, E1. is also defendant, Rose against exemplary damages awarded either *3 plaintiff entitled or not whether defendants, both body ag’ainst the defend either or both of to a execution exception objected to, ants.” This instruсtion was assigned giving as error. saved, its judgment imperative 2 Said instruction No. made a plaintiff some evi- amount for and rendered immaterial, injured attempt рerpe- in an to dence that was gun spring insist that this trate a crime. Defendants dwelling protection a a lawful device the applies ag’ainst burglar; thаt the same rule to house filling applied place station, hence to this of business and p. p. upon relying J., and 45 C. 2 R. L., 555, §35, C. Accepting it there laid down would §149. rule аs this applicable necessary it to auto- to to make this extend it standing gasoline pump think matic of doors. out We ‘ ‘ apply principle to rule does not the better is this: The your purse personal secretly or other thief who steals the buildings your property not or within the fields * * * setting spring- privilege The оf the domicile. open guns, outhouses, fields or not within therefore, privilege notice, would not domicile, the without the might justify ensue, homicide which but the the or еxcuse
423 criminally party setting responsible them would he consequences the of his act.” v. Gilliam, United States p. 15205a, 1319; 25 Fed. Cas. No. Marfaudille, State 584. It Pac. Ann. Cas. should be Wash. spring gun of this observed that the intent while only protect against consequences dire theft, to might by incurred felon also be incurred one inno- mоney deposited cently attempting recover which gas no was delivered. plaintiff’s
It will be observed that demand was exemplary damages in the sum of two-fifths his de compensatory damages, jury mand for whereas found actually damaged him in the rather trivial sum of $100' exemplary damages twenty and awarded him times exemplary damages that amount. cannot True, be accu rately usually discretionary measured and are with the jury. they Ordinarily should relation to the bear some compensatory damages awarded and the evil intent particular person wantonness in toward exhibited jured. Since defendants not shown have set the any gun purpose with other mind, this or with protection property, in view than this their theory can on “a be sustained wanton and disregard” rights persons rеckless who for all any might tamper pump. p. reason with L. C. things §6307. into consider These be taken extraordinary reviewing award. Unreason ation in this exemplаry damages, will not awarded, able such as here *4 punishment “is not commen sustained, be because injury Page 28 v. Yool, with done.” Colo. surate 464, 65 Pac. exemplary
We under that think, circumstances, damages in should not this case exceed actual dam- ages.
It should be further noted that evidence that, at the injured, time he attempting was or was not gasoline paying any to secure without it, such 424 proper go jury bearing upon offered, to tbe exemplary damаges. question
tbe of judgment is Tbe reversed the cause remanded a new trial.
Mr. Justice Butler, concurring. permits
I concur tbe result. statute tbe Tbe award only damages. exemplary §6307. of reasonable C. L. In damages evidence, view of tbe of tbe amount jury at tbe that tbe arrived unreasonable and indicates through passion prejudice. amount or majority opinion ex that tbe With tbe statement damages emplary ac exceed tbe should not this case agree. damages, of kinds unаble Tbe two tual damages I am wholly upon considerations. different are based damages compensate tbe Actual tbe are to damagеs, injury Exemplary called sometimes sustained.' money, damages, punitive, or smart vindictive, or punishment a being and as of in tbe nature considered as warning cоmmit from deter tbe defendant others p. ting 581. And may L., in the future. 8 R. C. like offenses damages, jury fixing amount tbe condi financial defendant’s take into consideration tbe givеn may less sum be a tbe of a since allowance tion, punishment Id.; to another. McAllister to one man than v. 788; Courvoisier McAllister, Pac. v. 72 Colo. Raymond, 284. In cаses tbe 47 Pac. some 23 Colo. may justify recovery small tbe amount facts degree may damages, of fraud, such a but show actual disregard or a wanton оr such reckless insult, malice rights feelings plaintiff’s as to call exem tbe plary damages very amount. In substantial McCon athy 83 Pac. there Deck, v. where Colo. damages, none found evidence but were some for exem we sustained court, tbe trial plary In we sum of tbe $500'. tbe App. approval Cottrill, Mo. citеd with Favorite *5 damages compensatory which a $1 sustained. $2,499 present dam- as awarded In the ease amount principal ages, as “rather in the referred to yardstick with be used as not sum,” trivial recoverable the amount which measure may majority opinion damages. in the The statement it intimation that an trial court as understood If what is at the next this used trial. should be so my agree with idea hy not does statement, it intended language, it intention, not the if that is law; unfortunate. me, seems to ex- herein in the views concurs Bouck
Mr. Justice pressed.
No. 12,755. County et al. v. Board Miller Commissioners City County et al. of Denver (21 714) [2d] 8,May 1933. denied Rehearing April Decided