86 Minn. 74 | Minn. | 1902
The complaint herein, so far as here material, is in these words:
The separate answer of the defendant Charles J. Casmey denied the allegations of the complaint, except that it admitted that the defendant took and carried away, at the time alleged, from section thirty-four, five tons of hay, of the value of $5 per ton, and affirmatively alleged that he was then the owner, and entitled to the possession thereof. The defendant Jennie Casmey also interposed a separate answer; but, as the action was afterwards dismissed as to her, its allegations are not here material.
On the trial, the plaintiff offered evidence' tending to establish the fact that he was the owner of the hay, and that the defendant converted it to his own use. The defendant attempted to show that he was the owner of the hay in question by purchase from the agent of a certain land company; but his evidence was stricken from the record, for the reason that there was no evidence given or offered to show that the land company owned either the hay or the land upon which it grew. The record at the close of the evidence contains no suggestion that the plaintiff did or would claim exemplary damages. The trial court, however, instructed the jury that the plaintiff, in case he had established his ownership to the hay taken away by the defendant, was entitled to recover the value thereof, and added:
“And if you find that the talcing and. conversion by defendant waswilful and malicious on the part of the defendant, you may, in assessing damages, give, in addition, punitive damages for the purpose of preventing the defendant and others from doing such things.”
The defendant excepted to the portion of the charge which we-have italicized. The jury returned a verdict for the plaintiff for the sum of $230, and the defendant appealed from an order denying his motion for a new trial.
X-The mere fact that a party has committed a wrongful and unlawful act affecting the person or property of another does not justify the imposition of exemplary damages in an action to redress the wrong. To justify such damages the tort must have been committed wantonly or maliciously, or with such insult, cruelty, oppression, or gross negligence, or such other aggravating circumstances, .as to establish malice in fact. Seeman v. Feeney, 19 Minn. 54 (79); Carli v. Union Depot, St. Ry. & T. Co., supra; Hoffman v. Northern Pacific R. Co., 45 Minn. 53, 47 N. W. 312. This being the basis for the recovery of exemplary damages, it would seem that, in an action where the alleged wrongful act does not in itself imply malice, the plaintiff ought, in fairness, if he seeks to recover more than actual damages, to advise the defendant of his purpose, by alleging in his complaint a case justifying the punishment of the defendant by an award of exemplary damages. It is not necessary in such cases for the plaintiff in his complaint specifically to claim exemplary damages, nor to plead the evidence necessary to establish such a claim, but we do-hold that he must allege, as an ultimate fact, the intent or purpose of the defendant in doing the .alleged wrongful act; that is, that it was wantonly or maliciously done, or with the purpose of oppressing or insulting the plaintiff, •or that the defendant was wantonly negligent.
Tested by this rule, it is too obvious to admit of any extended -discussion that the complaint in this action does not make a case
Order reversed, and new trial granted.