WHITING, J.
This case was first before us upon an appeal from an order overruling a demurrer to the answer. Our opinion will’be found reported in Gamble v. Keyes, 35 S. D. 644, 153 N. W. 888. The case was afterwards tried, and plaintiff awarded a large verdict and judgment. 'Upon appeal, we reversed the judgment and awarded a new trial. Our opinion on such appeal will be found reported in Gamble v. Keyes, 39 S. D. 592, 166 N. W. 134. Reference to such opinions is made for a full understanding of the nature of the action, the issues joined therein, and the matters determined upon the two appeals. Upon a second trial, plaintiff obtained another, though smaller, verdict, and from the judgment entered thereon defendant again appeals.
Upon the first appeal, we held that the complaint alleged facts sufficient to sustain a judgment both for compensatory and for punitive damages. To plead facts is one thing, to prove them is another — upon the second appeal, in reviewing-the evidence, we said :
"Under no view of the evidence could the trial court or the jury rightfully find compensatory damages to any material amount for the injuries pleaded in paragraph 3, there being absolutely no evidence to show that appellant ‘was injured in her good name among her friends and associates,’ or that she was ‘humiliated and disgraced in the opinion of her friends and associates’; for all the evidence shows that she still stands as she formerly did in the estimation of such friends and associates.. Appellant did not allege that she herself suffered any shame or felt any disgrace. It is urged that the invasion of the home was the most serious element of damages. Conceding that to -be so, no one would claim that the whole $20,000 was awarded for that wrong. Furthermore, there is no claim of damages based-upon the invasion of the home other than that for injury to the property, for physical injury to appellant, and for the injuries set forth in the above quotations.”
[1] Plaintiff offered no further evidence on the second trial than on the first. Ain examination of the record herein shows that alrr/ost every word quoted above is applicable to the record now [249]*249before us. It will be-noted in the above-quotation that we specifically called plaintiff’s attention to the fact that, in paragraph 3 as it then read, she was seeking nothing .fon her own humiliation, shame, disgrace or mental suffering. Paragraph 3 has been amended so that it now pleads damages because of plaintiff’s humiliation, shame, disgrace, and mental suffering. This amendment makes certain evidence material that was irrelevant to the issues as made before; but now, as on the first trial, there is not one particle of evidence that establishes any injury to plaintiff’s good name among her friends and associates, or that tends to prove that she was disgraced in the opinion of her friends and associates. It follows that the trial court should, as requested by the appellant, have taken from the jury the question of damages resulting from injury to plaintiff’s reputation.
[2] There were no facts proven that would establish actual damages in any large sum. It follows that the judgment should be reversed unless the trial court rightfully submitted to the jury the question of punitive damages. That the trial court erred in so doing is clear. The record before us contains no evidence sufficient to sustain a finding that defendant acted maliciously. The trial court should have taken the question of punitive damages from the jury; but when he refused to, he should have given the instructions requested by appellant. This court, years ago, laid down the rule as to what malice was necessary as a basis for punitive damages in an action of this kind; moreover we again announced such rule upon the second appeal in this very case, thus furnishing a guide that should have been followed by the trial court when it saw fit to submit the question of punitive damages to the jury. Upon such former appeal, we quoted with approval the following from Baxter v. Campbell, 17 S. D. 475, 97 N. W. 386:
“In order to justify the imputation of malice, within the rule of punitive damages, the injury must have been conceived in a spirit of mischief, and partake of a criminal or wanton nature. City of Chicago v. Martin [49 Ill. 241] 95 Am. Dec. 590; and cases cited in the notes. As applied to torts, an act, in order to be malicious, must be wrongful, and intentionally done, with an evil mind, and a wish to injure another. Bouvier’s Law Dict. Pickett and Wife v. Creek, 20 Wis. 358. * * * Our state provides [250]*250for exemplary damages only as a means of punishment ‘when the defendant has been guilty of oppression, fraud or malice, actual or presumed.’ Rev. Civ. Code, § 2292 [section 1965, Rev. Code 1919]. iMalice is defined to be a ‘wicked intention to do an injury.’ ‘In trespass, when the injury has been wanton or gross and outrageous. Not merely the doing of an unlawful or injurious act, but an act conceived in a spirit of mischief or of criminal indifference to civil obligation.’ Anderson’s Law Diet.”
[3, 4] Appellant requested an instruction conforming exactly to the law announced in the above quotation. The trial court, in instructing as to what constitutes malice, quoted verbatim section 3628, Revised Code of 1919; but it added another sentence as follows:
“Malice which is presumed, or malice in law, ás distinguished from malice in fact, is not personal hate or ill will of one person towards another; it refers to that state of mind which is regardless of the legal rights of a citizen in a person’s conduct towards that citizen.”
Such statement, if not mteaningless, at least destroyed fhe effect of the quotation of the statute; it gave to the jury if they understood it at all a very different idea of what they must find in order to find defendant to have acted maliciously than the ideas they would have gathered if the trial court had given to it as its instruction the law as announced by this court and as requested by appellant. Under section 31628, Rev. Code 1919, the jury, in order to find malice whether resting such finding on proof or on “presumption of law,” must find that there was “a wish to vex, annoy, or injure.” There cannot be malice unless there was a wrong motive. 18 R. C. L. 4. Under the evidence, no jury could rightfully find that the defendant’s acts partook of either “a criminal or wanton nature”; or that they were done with “an evil mind or a wish to injure” the plaintiff. There certainly was no “wicked intention to do an injury.” .
[5] Appellant’s acts resulting in the alleged damages were acts done while acting with one Ring, a deputy sheriff. There would have been no cause of action provided Ring or his principal, the sheriff, held a warrant authorizing breaking into respondent’s home. No one would claim that, if appellant supposed such authority to exist, he would be liable for punitive damages. It [251]*251follows that the trial court, if it submitted the question of punitive damages, should have carefully instructed the jury upon the necessity of its finding whether or not appellant believed that” the necessary authority did exist. This most important matter w'as ignored by the court. The only question submitted was whether appellant and Ring had a search warrant, and the jury were not instructed as to the effect of defendant’s honestly believing that they had full authority for doing what they did.
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WHITING, J.
This case was first before us upon an appeal from an order overruling a demurrer to the answer. Our opinion will’be found reported in Gamble v. Keyes, 35 S. D. 644, 153 N. W. 888. The case was afterwards tried, and plaintiff awarded a large verdict and judgment. 'Upon appeal, we reversed the judgment and awarded a new trial. Our opinion on such appeal will be found reported in Gamble v. Keyes, 39 S. D. 592, 166 N. W. 134. Reference to such opinions is made for a full understanding of the nature of the action, the issues joined therein, and the matters determined upon the two appeals. Upon a second trial, plaintiff obtained another, though smaller, verdict, and from the judgment entered thereon defendant again appeals.
Upon the first appeal, we held that the complaint alleged facts sufficient to sustain a judgment both for compensatory and for punitive damages. To plead facts is one thing, to prove them is another — upon the second appeal, in reviewing-the evidence, we said :
"Under no view of the evidence could the trial court or the jury rightfully find compensatory damages to any material amount for the injuries pleaded in paragraph 3, there being absolutely no evidence to show that appellant ‘was injured in her good name among her friends and associates,’ or that she was ‘humiliated and disgraced in the opinion of her friends and associates’; for all the evidence shows that she still stands as she formerly did in the estimation of such friends and associates.. Appellant did not allege that she herself suffered any shame or felt any disgrace. It is urged that the invasion of the home was the most serious element of damages. Conceding that to -be so, no one would claim that the whole $20,000 was awarded for that wrong. Furthermore, there is no claim of damages based-upon the invasion of the home other than that for injury to the property, for physical injury to appellant, and for the injuries set forth in the above quotations.”
[1] Plaintiff offered no further evidence on the second trial than on the first. Ain examination of the record herein shows that alrr/ost every word quoted above is applicable to the record now [249]*249before us. It will be-noted in the above-quotation that we specifically called plaintiff’s attention to the fact that, in paragraph 3 as it then read, she was seeking nothing .fon her own humiliation, shame, disgrace or mental suffering. Paragraph 3 has been amended so that it now pleads damages because of plaintiff’s humiliation, shame, disgrace, and mental suffering. This amendment makes certain evidence material that was irrelevant to the issues as made before; but now, as on the first trial, there is not one particle of evidence that establishes any injury to plaintiff’s good name among her friends and associates, or that tends to prove that she was disgraced in the opinion of her friends and associates. It follows that the trial court should, as requested by the appellant, have taken from the jury the question of damages resulting from injury to plaintiff’s reputation.
[2] There were no facts proven that would establish actual damages in any large sum. It follows that the judgment should be reversed unless the trial court rightfully submitted to the jury the question of punitive damages. That the trial court erred in so doing is clear. The record before us contains no evidence sufficient to sustain a finding that defendant acted maliciously. The trial court should have taken the question of punitive damages from the jury; but when he refused to, he should have given the instructions requested by appellant. This court, years ago, laid down the rule as to what malice was necessary as a basis for punitive damages in an action of this kind; moreover we again announced such rule upon the second appeal in this very case, thus furnishing a guide that should have been followed by the trial court when it saw fit to submit the question of punitive damages to the jury. Upon such former appeal, we quoted with approval the following from Baxter v. Campbell, 17 S. D. 475, 97 N. W. 386:
“In order to justify the imputation of malice, within the rule of punitive damages, the injury must have been conceived in a spirit of mischief, and partake of a criminal or wanton nature. City of Chicago v. Martin [49 Ill. 241] 95 Am. Dec. 590; and cases cited in the notes. As applied to torts, an act, in order to be malicious, must be wrongful, and intentionally done, with an evil mind, and a wish to injure another. Bouvier’s Law Dict. Pickett and Wife v. Creek, 20 Wis. 358. * * * Our state provides [250]*250for exemplary damages only as a means of punishment ‘when the defendant has been guilty of oppression, fraud or malice, actual or presumed.’ Rev. Civ. Code, § 2292 [section 1965, Rev. Code 1919]. iMalice is defined to be a ‘wicked intention to do an injury.’ ‘In trespass, when the injury has been wanton or gross and outrageous. Not merely the doing of an unlawful or injurious act, but an act conceived in a spirit of mischief or of criminal indifference to civil obligation.’ Anderson’s Law Diet.”
[3, 4] Appellant requested an instruction conforming exactly to the law announced in the above quotation. The trial court, in instructing as to what constitutes malice, quoted verbatim section 3628, Revised Code of 1919; but it added another sentence as follows:
“Malice which is presumed, or malice in law, ás distinguished from malice in fact, is not personal hate or ill will of one person towards another; it refers to that state of mind which is regardless of the legal rights of a citizen in a person’s conduct towards that citizen.”
Such statement, if not mteaningless, at least destroyed fhe effect of the quotation of the statute; it gave to the jury if they understood it at all a very different idea of what they must find in order to find defendant to have acted maliciously than the ideas they would have gathered if the trial court had given to it as its instruction the law as announced by this court and as requested by appellant. Under section 31628, Rev. Code 1919, the jury, in order to find malice whether resting such finding on proof or on “presumption of law,” must find that there was “a wish to vex, annoy, or injure.” There cannot be malice unless there was a wrong motive. 18 R. C. L. 4. Under the evidence, no jury could rightfully find that the defendant’s acts partook of either “a criminal or wanton nature”; or that they were done with “an evil mind or a wish to injure” the plaintiff. There certainly was no “wicked intention to do an injury.” .
[5] Appellant’s acts resulting in the alleged damages were acts done while acting with one Ring, a deputy sheriff. There would have been no cause of action provided Ring or his principal, the sheriff, held a warrant authorizing breaking into respondent’s home. No one would claim that, if appellant supposed such authority to exist, he would be liable for punitive damages. It [251]*251follows that the trial court, if it submitted the question of punitive damages, should have carefully instructed the jury upon the necessity of its finding whether or not appellant believed that” the necessary authority did exist. This most important matter w'as ignored by the court. The only question submitted was whether appellant and Ring had a search warrant, and the jury were not instructed as to the effect of defendant’s honestly believing that they had full authority for doing what they did. It is often said that the verdict of a jury is conclusive on all the facts essential as a basis for the verdict reached; and that a verdict is decisive of every issue of fact raised by the pleadings. These statements are not accurate. The verdict, under the instructions, often rests on only a part of the facts at issue and, on the other hand, often rests upon facts not covered by the pleadings but which have been established without objection. As a matter of exact law the jury is supposed to pass only upon those issues of fact submitted to it under the instructions of the court. The jury has no right to consider any other issue; and it is these issues, submitted to the jury under the instructions, upon which the verdict becomes conclusive as against the defeated party. Whether appellant was advised that neither Ring nor the sheriff had a search warrant was a disputed fact. It was a most material fact on the question of punitive damages, and yet one will search the instructions in vain to find one word giving to the jury the right to consider this important matter.
[6,7] The trial court gave an instruction that was in effect a direction of verdict for damages to respondent’s reputation. This was prejudicial error because: (a) There was absolutely no evidence that she suffered any damage to her reputation, and this claimed element of damages should have been taken from- the jury under the former opinion of this court, (b) The trial court told the jury that “there has been no evidence given as to the general reputation of the plaintiff.” The general reputation of her home as a blind pig and public resort was testified to by numerous witnesses. The reputation of the home affects the general reputation of every adult person therein, and evidence that this place was a “blind pig” and public resort, together with evidence that respondent lived therein, tended to prove her to be an inmate of a “blind pig” and public resort and therefore bore on the issue of her general reputation.
[252]*252[8] When the jury are allowed to consider certain compensatory damages not sustained by any evidence, and are allowed to give punitive damages where there is absolutely no proof of malice under the law as established by the holdings of this court, and when the jury are deprived of the right of determining whether the defendant believed he was acting under full authority, and of considering such matter in reaching their verdict, the duty of this court is clear, and we must continue to send this case back until it is tried in accordance with the laws and the evidence.
The judgment and order appealed from are reversed.