The facts are stated in the opinion: Mr. C. J. Gunderson, for appellant: Punitive damages are not allowed as a matter of right.

Brown v. Brown, 124 N. C. 19, 70 Am. St. Rep. 574, 32 S. E. 320; State v. Lightfoot, 107 Iowa, 344, 78 N. W. 41; North Carolina v. Vanderford, 35 Fed. 282; Benkert v. Benkert, 32 Cal. 468.

Messrs. Webster & Olson, for respond

"Wilfully" and "maliciously" are essentially the same.

Jaggard, Torts, §§ 512, 513; White v. Nicholls, 3 How. 266, 11 L. ed. 591; Rounds v. Delaware, L. & W. R. Co. 3 Hun, 329, 64 it is said: "A libel recklessly or carelessly published, as well as one induced by personal ill-will, will support an award of punitive damages;" Morning Journal Asso. v. Rutherford, 16 L.R.A. 803, 2 C. C. A. 354, 1 U. S. App. 296, 51 Fed. 513, holding that exemplary damages may be allowed for wantonly publishing a libel without inquiry or justifiable motive; Press Pub. Co. v. McDonald, 26 L.R.A. 531, 11 C. C. A. 155, 26

In Callahan v. Ingram, 122 Mo. 355, 43 Am. St. Rep. 583, 26 S. W. 1020, it is said: "There seems no just ground for distinguishing between malice in fact and malice in law, in respect to the right to exemplary damages in actions for libel and slander.'

That the recovery of exemplary damages is not dependent upon the existence of actu al or express malice, as distinguished from malice implied by law, is perhaps most clearly demonstrated in those cases in which such a recovery is allowed against a newspaper publisher for publishing libelous statements in relation to a person against whom he could have had no particular animus. See Coffin v. Brown, 94 Md. 190, 55 L.R.A. 732, 89 Am. St. Rep. 422, 50 Atl. 567, holding that punitive damages may be allowed, even in the absence of express malice, for publication of a libel which is not privileged and is without excuse; Buckley v. Knapp, 48 Mo. 152, holding exemplary damages may be awarded where there are circumstances of oppression, malice, or negligence, and that, though there was no attempt made to show express or actual malice, malice might be inferred or implied by law from the wrongful publication; Bergmann v. Jones, 94 N. Y. 51, holding the falsity of the libel sufficient proof of malice to justify the jury in awarding exemplary damages; Warner v. Press Pub. Co. 132 N. Y. 185, 30 N. E. 393, in which

that gross and reckless negligence, and wanton indifference to the rights of the persons libeled, may, without any direct intention to injure, constitute such malice as will justify exemplary damages; Times Pub. Co. v. Carlisle, 36 C. C. A. 475, 94 Fed. 762, which holds that exemplary damages may be allowed for a libel recklessly published, although there may be no proof of ill-will, or an intent on the part of the libeler to injure his victim.

An instruction submitting the question of punitive damages to the jury in an action for injuries inflicted by the bite of defendant's dog was sustained in Koestel v. Cunningham, 97 Ky. 421, 30 S. W. 970, and Dillehay v. Hickey, 24 Ky. L. Rep. 760, 69 S. W. 1095.

In Pickett v. Crook, 20 Wis. 358, it was held that exemplary damages may be awarded for the infliction of injuries by a vicious animal, upon proof of gross and criminal negligence evincing a wanton disregard of the safety of others, and in law equivalent to malice.

The doctrine that wanton and reckless indifference to the rights of others is equivalent to an intentional violation of them, affording an inference of malice which will constitute a ground for the award of exemplary damages, has also been applied under the following circumstances: Where there was an interference of the exercise of the right of burial,-Wright v. Hollywood Cemetery Corp. 112 Ga. 884, 52 L.R.A. 621, 38 S. E. 94; where defendant, in shooting at a fox, killed plaintiff's dog, which was pursuing_it,—Wright v. Clark, 50 Vt. 130, 28 Am. Rep. 496; and Press Pub. Co. v. Monroe, 51 L.R.A. 353, 19 C. C. A. 429, 38 U. S. App. 410, 73 Fed. 196, an action against a newspaper for the unauthorized publication of an ode written for the opening of an exhibition.

The intentional doing of an unlawful act with full knowledge of its character, and without cause or excuse, is malicious, so as to warrant an award of exemplary damages.

parently was assisting him. As Anderson passed out of the door, Van Slyck struck him a blow which occasioned the injuries complained of. Defendant's claim is that at the particular time when the blow was struck Van Slyck was not acting as the

Elliott, J., delivered the opinion of the

court:

In an action to recover damages alleged to have been occasioned by an assault committed by an agent of the defendant, the plaintiff recovered a verdict for $300. From an order denying a motion for judgment notwithstanding the verdict, or for a new trial, the defendant appealed to this court.

Of the 16 assignments of error, but 7 are discussed in the briefs, and the others are therefore waived. Peterson v. Red Wing, 101 Minn. 62, 111 N. W. 840.

The appellant contends that the complaint does not state facts sufficient to constitute a cause of action, and that the assault was not made while the employee was acting for the defendant. Errors are also assigned upon the refusal of the court to strike out the evidence of the witness Thompson, the reception of the evidence of the witness McLaughlin, and the instruction given the jury with reference to exemplary damages. We think the complaint, when fairly construed, states a cause of action.

The evidence was sufficient to justify the jury in finding that the assault was made by the agent, Van Slyck, while engaged in doing, and in furtherance of, the very act for which he was employed by the defendant. Van Slyck was the agent of the International Harvester Company, and was sent to the residence of the plaintiff, Anderson, for the purpose of foreclosing a chattel mortgage. It is not material whether the note and mortgage was owned by the International Harvester Company, or by what is referred to as the "McCormick Branch" of the company." It is conceded that Van Slyck was there as the agent of the International Harvester Company, and that he was acting as its agent in the collection of the note and the foreclosure of the mortgage. There was evidence tending to show that Van Slyck demanded the possession of the horses; that, upon being informed by Anderson that he could not have the horses, he went to the barn for the purpose of taking possession that Anderson reached the barn first, and refused to permit Van Slyck to enter. He resorted to force, and, after some scuffling, Anderson attempted to pass Van Slyck and go to the assistance of his wife, who it is claimed had been attacked by one McLaugh

that there had been a struggle between the parties before that particular blow was struck, and that it was immediately thereafter renewed in the stable, the evidence was sufficient to justify the jury in coming to the conclusion that the blow was struck by Van Slyck in aid of his purpose to obtain possession of the horses. It was all one transaction, and we cannot, as a matter of law, say that the particular blow was struck while Van Slyck was not acting as the defendant's agent. Upon all the facts, it was for the jury to determine.

There was nothing in the objections to the rulings of the court upon the reception or rejection of evidence which would justify a reversal.

As we read the instructions of the trial court with reference to exemplary damages, the rule was correctly stated. It is settled in this state that a corporation may be liable for exemplary damages. Peterson v. Western U. Teleg. Co. 75 Minn. 368, 43 L.R.A. 581, 74 Am. St. Rep. 502, 77 N. W. 985. The recovery of punitive damages is not a matter of legal right. If it appears from the evidence that the act complained of was wanton, malicious, fraudulent, or oppressive, and such as to show a reckless disregard of the rights of the plaintiff, the jury may, in its discretion, award exemplary damages. Berg v. St. Paul City R. Co. 96 Minn. 513, 105 N. W. 191; Vine v. Casmey, 86 Minn. 74, 90 N. W. 158. It is reversible error for the court to direct the jury to award exemplary damages. Sneve v. Lunder, 100 Minn. 5, 110 N. W. 99.

It is argued that the court violated this rule when it instructed the jury that “if, under the testimony of the case, you find and believe that such assault was committed wilfully and wrongfully, you may allow plaintiff such additional sum as, in your judgment, you think would be proper and right by way of punitive or exemplary damages, for the purpose of deterring others from the commission of similar acts in the future." The recovery of punitive damages is, by this instruction, left to the discretion of the jurors. They are informed that they may return such damages, not that they must do so, if the evidence shows that the assault was wilfully and unlawfully committed.

It is, however, contended that the instruction is erroneous because the trial court

NEW YORK COURT OF APPEALS.

WALTER R. MOLLOY, by Guardian ad Litem, Respt.,

1. A carrier is not liable for injuries inflicted by wild animals in its possession for transportation, upon one visiting its freight house with no business to transact, and who, impelled by curiosity, goes between the cages, where it had arranged them facing each other so that the public could make reasonable use of the premises without being entrapped to their injury. Same negligence.

2. A carrier having possession of a wild animal for transportation is not within the rule that the keeper of such animal is liable for injuries caused by it irrespective of negligence on his part.

(Cullen, Ch. J., dissents.)

(January 21, 1908.)

PPEAL by defendant from a judgment

A of the Appellate Division of the Su

preme Court, First Department, affirming a judgment of a Trial Term for New York County in plaintiff's favor in an action brought to recover damages for personal injuries alleged to have been caused by defendant's negligence. Reversed.

The facts are stated in the opinion.

Note. The cases discussing the liability for injury done by animals feræ naturæ are gathered in a case note to Hays v. Mill er, 11 L.R.A. (N.S.) 748. An examination of that note will reveal the fact that, at common law, at least, when an injury was done by a wild animal, the gravamen of the action was the keeping of the animal, | knowledge of its propensities being imputed to its keeper. And it appears that, even at this day, when the exhibiting of wild animals has become very common, and it is almost universally recognized that wild animals may be kept for purposes not censurable, the courts have been loath to lay aside the absolute-liability rule. Even the appellate division of the supreme court, when MOLLOY V. STARIN was there for decision and as reported in 113 App. Div. 852, 99 N. Y. Supp. 603, recognized the absolute liability of a keeper of wild animals, and said in that case that knowledge of the vicious character of a bear was, as a matter of law, imputed to the owner of a boat line who had received it for transportation. But the court then, in view of the absolute-liability rule, evidently seeing the necessity of getting away from the doctrine of contributory negligence as such, appar

Mr. Jonathan Deyo, for respondent: Wild beasts, among which is classed a bear, having a savage nature, are always

kept at the absolute risk and peril of those who keep them in their possession.

Muller v. McKesson, 73 N. Y. 195, 29 Am. Rep. 123; Lynch v. McNally, 73 N. Y. 349; Keenan v. Gutta Percha & Rubber Mfg. Co. 46 Hun, 547; Earl v. Van Alstine, 8 Barb. 630; May v. Burdett, 9 Q. B. 101; Kelly v. Tilton, 2 Abb. App. Dec. 495; Card v. Case, 5 C. B. 622.

Wild beasts are universally recognized as savage and ferocious, and are distinguished from domestic animals.

Addison, Torts, 22, 230; Shearm. & Redf. Neg. §§ 188, 227, 228; 1 Am. & Eng. Enc. Law, p. 582; Vredenburg v. Behan, 33 La. Ann. 627; Earl v. Van Alstine, supra; Van Leuven v. Lyke, 1 N. Y. 516, 49 Am. Dec. 346; 2 Am. & Eng. Enc. Law, 2d ed. p. 351; ently attempted to draw a distinction between an injury received where the party was guilty of contributory negligence, and one where the party voluntarily brought the injury upon himself; and finally held that where, as in this case, the boy brings the injury upon himself, the carrier is not liable. After a new trial, this case evidently came again before the appellate division of the supreme court, and in 119 App. Div. 884, 104 N. Y. Supp. 1133, without opinion, the original judgment in the trial court, for the plaintiff, was affirmed. It would seem, therefore, that the court of appeals, in reversing 119 App. Div. 884, 104 N. Y. Supp. 1133, and holding that a common carrier is not within the rule that the keeper of wild animals is liable for inju ries caused by them irrespective of negligence on his part, took a long step, and, without doubt, a justifiable one, toward the doctrine as favored by Judge Cooley on Torts, 3d ed. pp. 706, 707, that, when wild animals are kept for some purposes recognized as not censurable, all that can be demanded of the keeper is that he shall take that superior precaution to prevent their doing mischief which their propensities in that direction justly demand of him.