period of time and taxed to him, under the doctrine of equitable estoppel such city cannot subsequently deny the right of such occupant thereto.

In Getchell v. Benedict, 57 Iowa, 121, a distinction is made between cases where the lands taxed are adversely occupied and where not. We do not go so far as to approve the doctrine of Simplot v. Dubuque, 49 Iowa, 630, that the mere circumstances of adverse possession for a considerable length of time and taxation to the adverse occupant and payment of such taxes by him are sufficient to create an estoppel against the municipality. They are evidently important circumstances to be considered with the other facts in the case. The adoption of the second plat by the act incorporating the city of Kaukauna in 1885, the requirement made by such city of Lawe 307 to build a sidewalk along the side of the park, the construction of such sidewalk, the payment of taxes assessed annually on the property for a long period of years, and the improvement of the property at considerable expense, relying upon the long-continued recognition of private ownership by the municipality, in which all persons interested, so far as appears, acquiesced, with all the other facts and circumstances, show satisfactorily that, if a change of position on the part of the public be now allowed, such injustice and wrong will result as to warrant the application of the doctrine of equitable estoppel in pais to prevent such injustice. That, we assume, is the view the trial court took of the case, which answered the alleged breach of the covenants of title in the deed from Lawe to appellant, and sustains the findings and judgment appealed from.

By the Court. Judgment affirmed.

HIGHWAYS-DEDICATION BY MARKING OUT A VILLAGE PLAT-WHEN IRREVOCABLE.-The marking out of a village plat does not necessarily make the space a public way unless the authorities accept it as such. The mere making of sales of lots with reference to a map designating certain streets does not, therefore, constitute an irrevocable dedication to the public: Monographic note to Whitesides v. Green, 57 Am. St. Rep. 753. The evidence of acts and declarations tending to show a dedication must be of such a deliberate and decisive character as to leave no doubt of the owner's intention: Monographic note to Whitesides v. Green, 57 Am. St. Rep. 756. But after dedication is accepted, either formally or by user, even the levy of taxes against the owner and their collection is not conclusive against the claim of a highway by user: Monographie note to Whitesides v. Green, 57 Am. St. Rep. 765.

ROBINSON V. SUPERIOR RAPID TRANSIT RAILWAY CO.

[94 WISCONSIN, 345.]

RES GESTAE in a sult for ejecting plaintiff from a railway car under the claim that he had not paid his fare include all the conversation between himself and the conductor about the fare at the time of, and immediately after, the ejecting, and also what the conductor said immediately after allowing the plaintiff to return and resume his seat in the car.

DAMAGES. EXEMPLARY, DISCRETION OF JURY.Though, in an action for tort, the jury may, in their discretion, award exemplary damages, it is not proper to instruct them that the plaintiff is entitled to such damages. The court cannot determine this question, and can only instruct the jury to give such damages as they think proper.

DAMAGES, EXEMPLARY, FOR WRONG OF AGENT.-A principal is answerable in exemplary damages for the wrongful and malicious act of his agent where he neither authorizes nor ratifies it.

PRINCIPAL AND AGENT, RATIFICATION OF MALICIOUS ACT.-If a railway corporation retains a conductor in its employ after knowledge of a willful and malicious tort on his part. this is evidence of its ratification of such tort, but whether it was ratified or not is a question for the jury.

Ross, Dwyer & Hanitch, for the appellant.

Yate H. V. Gard, for the respondent.

346 CASSODAY, C. J. This is an action to recover damages by reason of the defendant having, without cause, unlawfully, willfully, maliciously, and with force and violence, ejected and expelled the plaintiff from one of its railway passenger cars, upon which he was rightfully riding after having paid his fare. The defendant answered, by way of admissions, denials, and allegations, to the effect that, if the plaintiff had paid his fare, the conductor of the car had forgotten the fact, and so ejected the plaintiff only after he had refused to inform the conductor whether he had paid his fare or not. At the close of the trial the jury returned a verdict to the effect that they found for the plaintiff, and assessed his damages at two hundred and fifty dollars, of which sum two hundred dollars was so 847 awarded as exemplary damages. From the judgment in favor of the plaintiff for the full amount stated and costs, the defendant brings this appeal.

1. We perceive no error in allowing the plaintiff to testify as to the conversation between himself and the conductor in respect to paying his fare while riding on the car, and at the time and immediately after he was ejected, and just after he got on the car again. The controversy was as to whether the plaintiff had or had not paid his fare. He was put off because the conductor claimed he had not paid his fare. He was allowed to get on the ear again because the conductor became convinced that he had

AM. ST. REP, VOL. LIX.-57

paid his fare. The res gestae commenced when he paid his fare, and did not terminate until he returned to the car, and was allowed, by the conductor, to ride peaceably. Within the authorities, it included what the conductor said just after the plaintiff stepped back into the car: Hooker v. Chicago etc. Ry. Co., 76 Wis. 542; Hermes v. Chicago etc. Ry. Co., 80 Wis. 592; 27 Am. St. Rep. 69; Reed v. Madison, 85 Wis. 674. The case is clearly distinguishable from Grisim v. Milwaukee City Ry. Co., 84 Wis. 22; Ehrlinger v. Douglas, 81 Wis. 59; 29 Am. St. Rep. 863.

2. Error is assigned because the trial court, after charging the jury to the effect that the plaintiff was entitled to a verdict for compensatory damages for all injuries, including injuries to his feelings, further charged them to the effect that if the conductor maliciously put the plaintiff off the car, then he was "also entitled" to what are called exemplary or punitory damages; that is, something different from, and over and above, the compensatory damages which the law allowed them to impose in such a case, in the way of warning and punishment, and as a public example. There is no claim that at the time in question the conductor was not acting within the scope of his employment, nor that the plaintiff had not paid his fare. The plaintiff was therefore entitled to compensatory damages. Whatever may be the 348 rule in other states, it is settled in this state that, in actions for personal torts, such compensatory damages include not merely the plaintiff's pecuniary loss, but also compensation for mental suffering; and that, in awarding such damages in such a case. no distinction is to be made between other forms of mental suffering and that which consists in a sense of wrong or insult: Craker v. Chicago etc. Ry. Co., 36 Wis. 657; 17 Am. Rep. 504; Fenelon v. Butts, 53 Wis. 344; Grace v. Dempsey, 75 Wis. 323; Reinke v. Bentley, 90 Wis. 459. The question here presented is, whether the plaintiff was "also entitled," as a matter of law, to "exemplary or punitory" damages, in case the jury found that the conductor maliciously ejected the plaintiff. In Day v. Woodworth, 13 How. 371, Mr. Justice Grier, speaking for the court, said that, "in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offense, rather than the measure of compensation to the plaintiff. . . . . This has been always left to the discretion of the jury, as the degree of punishment to be thus inflicted must depend on the peculiar circumstances of each case." This is quoted approvingly by Mr. Sutherland (1 Sutherland on Damages, sec. 392). The same was followed in Pike v. Dilling,

48 Me. 539, where numerous adjudications are referred to, and an instruction to the jury to the effect that in such case they "were authorized, if they thought proper, in addition to the actual damages the plaintiff has sustained, to give him a further sum, as exemplary or vindictive damages, both as a protection to the plaintiff and as a salutary example to others, to deter them from offending in like cases," was held to be in accordance with the weight of judicial authority in this country. In Webb v. Gilman, 80 Me. 188, it was said by the court that "exemplary or punitive damages cannot be demanded as a matter of right; actual damages may be." To the same effect: Foote v. Nichols, 28 Ill. 486; New Orleans etc. 349 R. R. Co. v. Burke, 53 Miss. 200; 24 Am. Rep. 689; Wabash etc. Ry. Co. v. Rector, 104 Ill. 296; Boardman v. Goldsmith, 48 Vt. 403; Snow v. Carpenter, 49 Vt. 426; Kentucky etc. R. R. Co. v. Gastineau, 83 Ky. 119; Louisville etc. R. R. Co. v. Brooks, 83 Ky. 129; 4 Am. St. Rep. 135; Stilson v. Gibbs, 53 Mich. 280; Wilson v. Bowen, 64 Mich. 133. In the last Illinois case cited, an instruction substantially like the one in the case at bar was held bad. In one of the Kentucky cases cited, an instruction that the jury "should" give punitive damages if they found the neglect willful was held error; and, in the other Kentucky case cited, it was held error to instruct in such a case that the jury "ought" to award punitive damages. It is true that an instruction to the effect that the jury "ought" to give exemplary damages in such a case was sustained by this court in Hooker v. Newton, 24 Wis. 292; but the case is not in harmony with the best-considered cases nor with the weight of authority. Mr. Thompson, in his excellent work, after stating that "the jury may, if they think proper, give damages by way of punishment," says: "It may he stated that, in cases in which such damages may be given, whether they will be given or not is a question within the discretion of the jury. Many judg ments have been reversed because the jury were allowed to give such damages, but no case is recollected where a judgment was reversed because such damages were not given, though, possibly, such cases may be met with in the recent books of reports": 2 Thompson on Trials, sec. 2065. The reason for the rule, as indicated in some of the cases cited, is that the primary object of such action is to fairly compensate the plaintiff for the wrong he has suffered and the injury he has sustained, and that he is not entitled, as a matter of legal right, to anything more.

ingly, some courts of high standing refuse to allow punitory damages in cases similar to this.

3. There is another matter calling for consideration. The charge left the question of exemplary damages to turn 350 whoily upon the question whether the conduct of the conductor was malicious, the same as though the action had been directly against him. This court has repeatedly held, in effect, that such exemplary damages can only be recovered against the principal for the wrongful and malicious act of the agent, when such act is either authorized or ratified by the principal: Craker v. Chicago etc. Ry. Co., 36 Wis. 657; 17 Am. Rep. 504; Bass v. Chicago etc. Ry. Co., 36 Wis. 450; 17 Am. Rep. 495; 39 Wis. 636; 42 Wis. 654; 24 Am. Rep. 437; Eviston v. Cramer, 57 Wis. 570; Patry v. Chicago etc. Ry. Co., 77 Wis. 218; Mace v. Reed, 89 Wis. 440; Hagan v. Providence etc. R. R. Co., 3 R. I. 88; 62 Am. Dec. 377. On the same day that the plaintiff was so ejected from the car, September 12, 1894, the conductor reported his version of the transaction to the defendant; but that report, while it was not expressly excluded on the objection of the plaintiff, was allowed in evidence simply as showing that the defendant had no knowledge of wrong on the part of the conductor. The only evidence of notice to the defendant that the conduct of the conductor was malicious is the allegations contained in the complaint served September 25, 1894. There is nothing to indicate that the complaint was read to the jury, nor that they knew its contents, and the trial court stated, at the time the evidence was excluded, that there was not any evidence in the case of ratification. It does appear that the conductor was in the employ of the defendant from July 28, 1894, to December 18, 1894, and then left of his own accord. Such retention of the conductor in the employment of the defendant, with knowledge that such conduct of the conductor was willful and malicious, would have been evidence tending to prove ratification. The decisions of this court cited are to that effect: See, also, cases cited in the notes to Hagan v. Providence etc. R. R. Co., 62 Am. Dec. 387; Cleghorn v. New York etc. R. R. Co., 56 N. Y. 47; 15 Am. Rep. 375. In taking the question of such ratification from the jury, the court necessarily held that, if the jury found that 351 the conduct of the conductor was malicious, then the defendant was conclusively bound to know the same, because it was so alleged in the complaint. This, we think, was error.

By the Court. The judgment of the superior court of Douglas county is reversed, and the cause is remanded for a new trial, or, at the option of the plaintiff, for judgment in his favor on that part of the verdict assessing compensatory damages.