Exemplary Damages. Those allowed as a punishment for torts committed with fraud, actual malice, or deliberate violence or oppression. In nearly all of the states, in such cases, the jury are not confined to a strict com- pensation for the plaintiff's loss, but may, in assessing damages, allow an additional sum by way of punishment for the wrong done. This allowance is termed "smart money," or "exemplary," " vindictive," or "punitive" damages. Some courts, however, have declined to recognize the doctrine; 4 Pick. 143; 21 id. 378 (and see 114 Mass. 518); 7 Col. 541; 11 Neb. 261; 64 Mich. 133; 56 Ν. Η. 456, (overruling earlier cases). Some other courts refuse punitive dam- ages; but allow exemplary damage as com- pensatory or "indeterminate damages;" 81 W. Va. 220; 1 Wyo. 27; 11 Nev. 350; 2 L. C. J. 96; 20 id. 141; 4 R. I. 371. In some of these jurisdictions they are really al- lowed under the guise of compensation for mental suffering and the like. "Whenever the injury complained of is the result of the fraud, malice or wilful or wanton act of the defendant, and the circumstances of the case are such as call for such damages, vindictive damages may be given. The general rule is that, when the injury has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not restricted to actual damages, but may give such damages in addition thereto as the circumstances of the case seem to warrant, to de- ter others from like offences." Wood's Mayne, Dam. 58; Webb, Poll. Torts 219. "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., in summing up before the jury; 1 Dill. 71. It has been said that the distinction between ex- emplary damages, and damages given as special or extraordinary compensation, is one of words merely; 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 loss; Hill. Torts 440; Fie 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 44 Wis. 239, the court said: "The argument and considera- tion 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 modify the rule at so late a day against the general current of authority elsewhere a change should now be made, it lies with the legis lature, etc." See, also, 7 So. L. Rev. N. s. 675: 7 Jones, L. 64; 20 Am. Law. Reg. N. 8. 573; 11 Nev. 850; 6 Cent. L. J. 74. if See note to Wood's Mayne, Dam. 17; Sedgw.; Field, Damages; Greenl. Evidence. Actual malice need not be shown if the act complained of was wantonly or reck- lessly done; 51 Ill. 467; 66 Hun 626; 1 Misc. Rep. 148; 51 Mo. App. 320; see 161 Pa. 553; or conceived in a spirit of mis- chief, or in evident disregard of the rights of others, or of civil or social obligations; 26 Conn. 416; 42 Miss. 607; Wood's Mayne, Dam. 59, note. In an action for slander, however, exemplary damages cannot be recovered without proof of express malice; 48 Mo. App. 193. Where motive may be ground of aggravation of damages, evi- dence on this score, as of proof of provoca- tion, or of good faith, is admissible in miti- gation of damages; Poll. Torts 184. So exemplary damages cannot be recovered where the defendant acted on advice of counsel: 33 Mich. 511; 81 Ga. 468; 73 Ala. 183; 44 Vt. 441; or in good faith: 76 Me. 216; 35 N. Y. 297; 60 Md. 358; 42 Conn. 318; or with a fixed belief that he was acting in the right; 70 Ill. 28; 35 Ia. 306; 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 com- pensated at the same time and persons are deterred from like offences; 6 Tex. 266; 2 Hill 40. Mere negligence on the part of the defend- ant is not enough; 35 Penn. 60; 27 Mô. 28; 5 Bush 206; but see 2 C. C. App. 354; 5 id. 91:6 Misc. Rep. 162. Malicious motives alone can never constitute a cause of action but, where the allegations are sufficient to sustain the action, malice may be alleged and proved to enhance the damages: 78 Me. 445; 77 Ill. 562; 69 Mich. 380; 115 Mass. 217; 27 Fla. 157; 75 Pa. 467; 75 Ga. 198. See MALICE; MOTIVE. Exemplary damages as a rule are re coverable only in tort, except that they are allowed for breach of promise of mar- riage; L. R. 1 C. P. 331; 125 N. Y. 214; 59 Mich. 33; see PROMISE OF MARRIAGE; and where there was a breach