Curl v. Chi., R. I. & P. Ry. Co.

• Decision Date: 25 April 1884
• Citation: 19 N.W. 308,63 Iowa 417
• Court: Iowa Supreme Court
• Parties: CURL v. CHICAGO, R. I. & P. RY. CO.

63 Iowa 417

19 N.W. 308

CURL

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

Filed April 25, 1884.

Appeal from Washington. Opinion upon rehearing. See S. C. 16 N. W. REP. 69.M. A. Low, for appellant.

Wilson & Kellogg, for appellee.

BECK, J.

A rehearing having been allowed in this case, it has been again argued. Upon a reconsideration of the whole case, and all arguments submitted therein, we remain satisfied with the conclusions announced in the foregoing opinion upon all questions discussed and decided therein. They are so fully and clearly presented that nothing more need be said in their support. However, one objection urged by counsel for defendant escaped our attention in our former consideration of the case. We are satisfied that it was well taken, and that thereon the judgment of the court below ought to be reversed. We will proceed to consider it. The petition alleges that the conductor “maliciously, unlawfully, brutally, forcibly, wrongfully, and violently” ejected plaintiff from the car. As applicable to the issue joined upon this allegation of the petition, the court gave an instruction in the following language: “(10) If you find for the plaintiff, and that the conductor had no right to eject him from the train, and the evidence satisfies you that the plaintiff suffered pain of body, or was put to trouble and inconvenience in traveling to a place of shelter, in consequence of the ejectment, you should allow him as damages such sum as in your sound discretion will fully and fairly compensate him therefor. And if you find that the conductor willfully used unneccessary force in ejecting the plaintiff from the train, you may allow reasonable punitive damages, such as in your sound discretion is commensurate with the wrong, and will tend to prevent the recurrence of those like it.” This instruction is erroneous in that it does not make the recovery of exemplary damages dependent upon malice of the wrong-doer. It holds that the willful use of unnecessary force is a ground for allowing exemplary damages. An act willfully done may not be accompanied by malice; that is, a spirit of enmity, malevolence, or ill-will, with a desire to harm, and a disposition to injure. One may willfully do an act with innocent purposes; that is, he may obstinately, stubbornly, and with design, act lawfully and with good intentions. The instruction fails to present the thought that the element of malice must accompany acts of the kind complained...