"All rules of damages are referred by the law to one of two heads, either compensation or punish ment. Compensation is to make the injured party whole. Exemplary damages are something beyond this, and inflicted with a view not to compensate the plaintiff, but to punish the defendant." Per Dillon, Circ. J., charging the jury ; Berry v. Fletch er, 1 Dill. 71', Fed. Cas. No. 1,357.
It has been said that the distinction between ex emplary damages, and damages given as special or extraordinary compensation is one of words mere ly ; and the effect of allowing the former is the same as that produced upon the theory of compen sation, when this is extended to cover injury be yond the pecuniary lose ; Hill. Torts 440; Field, Dam. 70.
The propriety of allowing damages to be given by way of punishment under any circumstances has been strenuously denied in many of the cases, and the question has given rise to extensive discussion ; but the weight of authority is decidedly that such allowance, in a suitable case, is proper. In Brown v. Swineford, 44 Wis. 289, 28 Am. Rep. 682, the court said : "The argument and consideration of this case have gone to confirm the present members of this court in their disapprobation of the rule of exemplary damages which they have inherited ; but they . . . do not feel at liberty to change or mod ify the rule at so late a day against the general cur rent of authority elsewhere . . . if a change should now be made, it lies with the legislature, etc." See, also, 7 So. L. Rev. N. S. 575; Smithwick v. Ward, 52 N. C. 64, 75 Am. Dec. 463 ; 20 Am. Law. Reg. N. S. 573 ; Quigley v. R. Co., 11 Nev. 350, 21 Am. Rep. 757.
Actual malice need not be shown if the act complained of was wantbnly or reckless ly done ; Farwell v. Warren, 51 Ill. 467; Paddock v. Somes, 51 Mo. App. 320; or con ceived in a spirit of mischief, or in evident disregard of the rights of others, or of civil or social obligations ; Dibble v. Morris, 26 Conn. 416; New Orleans, J. & G. N. R. Co. v. Statham, 42 Miss. 607, 97 Am. Dec. 478;
Wood's Mayne, Dam. 59, note. In an action for slander, however, exemplary damages cannot be recovered without proof of express malice; Nelson v. Wallace, 48 Mo. App. 193. Where motive may be ground of aggravation of damages, evidence on thii score, as of proof of provocation, or of good faith, is admissible in mitigation of damages; Pollock, Torts 184. So exemplary damages cannot be recovered where the defendant acted on advice of counsel; Livingston v. Burroughs, 33 Mich. 511; Shores v. Brooks, 81 Ga. 468, 8 S. E. 429, 12 Am. St. Rep. 332; City Nat. Bank v. Jeffries, 73 Ala. 183 ; Carpenter v. Barber, 44 Vt. 441; or in good faith; Pierce v. Getchell, 76 Me. 216; Millard v. Brown, 35 N. Y. 297; Oursler v. R. Co., 60 Md. 358; Pratt v. Pond, 42 Conn. 318; or with a fixed belief that he was acting in the right; Far well v. Warren, 70 Ill. 28 ; Brown v. Allen, 35 Ia. 306; Wilkinson v. Searcy, 76 Ala. 176.
The ground of the doctrine is said to be that society is protected by this species of punishment, while the party is also compen sated at the same time*and persons are de terred from like offences ; Cole v. Tucker, 6 Tex. 266.
Mere negligence on the part of the defend ant is not enough; Pennsylvania R. Co. v. Ogler, 35 Pa. 60, 78 Am. Dec. 322; Goetz v. Ambs, 27 Mo. 28; but see Morning Journal Ass'n v. Rutherford, 51 Fed. 513, 2 C. C. A. 354, 16 L. R. A. 803; Smith v. Matthews, 6 Misc. 162, 27 N. Y. Supp. 120. Malicious motives alone can never constitute a cause of action but, where the allegations are suffi cient to sustain the action, malice may be alleged and proved to enhance the damages; Stevens v. Kelley, 78 Me. 445, 6 Atl. 868, 57 Am. Rep. 813 ; Burke v. Smith, 69 Mich. 380, 37 N. W. 838; Glendon Iron Co. v. Uhler, 75 Pa. 467, 15 Am. Rep. 599; Smith v. Goodman, 75 Ga. 198. See MALIcE; MarrvE.
Exemplary damages as a rule are recov erable only in tort, except that they are al lowed for breach of promise of marriage; L. R. 1 C. P. 331; Chellis v. Chapman, 125