GRAY, Special Judge.
—This suit was instituted to recover damages for an assault made on the plaintiff by the defendant’s station agent at the town of Pomona, on the 11th. day of October, 1911. The pleadings and evidence authorized a verdict for both compensatory and exemplary damages, and the jury returned such a verdict, assessing the plaintiff’s compensatory damages at the sum of $750, and his exemplary damages at $2000.
While appellant assigns several reasons for a re-' versal of the judgment, the only one seriously urged relates to the instruction as to exemplary damages. The instruction reads: “The court instructs the jury that if you believe and find from the evidence that the assault and attack upon plaintiff by the agent of defendant, if you find there was such an assault, was wilfully and maliciously made, that is to say, if it was intentional and without just cause, you will assess a further sum by way of punitive or exemplary damages against defendant, ” etc.
The counsel agree that it lies within the discretion of the jury as to whether or not punitive damages will [251]*251be allowed in any ease, and, therefore, the issue is further limited to whether the instruction does leave the matter to the jury’s discretion.'
The rule seems to be that when an instruction is given as to punitive damages, the court should clearly tell the jury that the giving of such damages is a matter of discretion. [Hauser v. Steigers, 137 Mo. App. 560, 119 S. W. 52; State ex rel v. Fidelity & Deposit Co., 94 Mo. App. 184; Callahan v. Ingram, 122 Mo. l. c. 373, 26 S. W. 1020; Ill. C. R. R. Co. v. Houchins, 1 L. R. A. (N. S.) 375; Johnston v. Wells, 112 Mo. App. 557, 87 S. W. 70; Chesapeake & O. Ry. Co. v. Conway, 124 S. W. 861.]
In Callahan v. Ingram, supra, our court said: ‘•‘Exemplary damages are.given by way of punishment,- and the jury should be so instructed thereon as to leave no doubt on the subject. ”
In State ex rel. v. Fidelity & Deposit Co., supra, the question of the right to recover interest was for the jury, and the instruction read: “The court instructs the jury that if you find for the plaintiff you should return a verdict for the amount of the balance due on the note, not exceeding the value of. the stock of goods, furniture and fixtures levied upon by the sheriff under the execution, on the twenty-seventh day of August, 1900, to which you may add six per cent interest from that date to the present time.” While the court affirmed the judgment, yet, relating to this instruction, it said: “The instruction is not as definite and full as -it should have been in calling the attention of the jury to the fact that the allowance of interest was in their discretion.”
In Hauser v. Steigers, supra, the jury were told if they found a verdict for plaintiff in estimating his punitive damages, they might consider defendant’s wealth, etc. In speaking- of this instruction Judge Go odd said: “In itself and unless the meaning was sufficiently clarified by other instructions, this charge [252]*252was suggestive of the notion that punitive damages must accompany a verdict for plaintiff; which, of course, was not the law.”
In Illinois Central R. R. Co. v. Houchins, supra, the court said: “When an instruction is given as to punitive damages the court should clearly tell the jury that the giving of punitive damages is a matter of discretion.”
I believe the rule is correctly and very clearly stated by Judge Ellison in Johnston v. Wells, supra, as follows: “It is proper to inform the jury of their province to allow such damages if they see fit to do so, but there should not be a direction given them which, fairly interpreted, withdraws such discretion and makes the allowance mandatory. ”
Believing that this statement of Judge Ellison’s correctly declares the law, there only remains for consideration the one question: Does the instruction, when fairly interpreted,' withdraw such discretion from the jury? In determining this question, no unusual or technical meaning of the word “will” should be resorted to. • '
In State ex rel. v. Hope, 121 Mo. 34, 25 S. W. 873, the question of interest was in the discretion of the jury, and the court gave an instruction, which, on the measure of damages, read: “If you believe that afterwards, the defendant Hope, as sheriff pf Jackson county, under and by virtue of said writs of attachment against said Schneider, levied upon and took said property or any part thereof, then you will find in this action for the plaintiff, and assess his. damages at the value of the property so taken, together with interest at the rate of six per cent per annum, ” etc. 'The court held that the instruction, as framed, was erroneous, because it interfered with the discretion of the jury regarding interest.
In Carson v. Smith, 133 Mo. 606, 34 S. W. 855, the instruction read: “Then plaintiff is entitled to puni[253]*253tive damages in addition to the value of the property so taken from him and sold; and you will allow him in addition to the value of the goods and property so taken such further sum as not to exceed $1000, as you believe will justly punish the defendants for their wrongful act,” etc. In condemning this instruction the court said: “By it the jury are told that if they find from the evidence that the taking and sale of plaintiff’s property, under attachment against Logan, was malicious, and that the bringing of said attachment was without probable cause, then plaintiff is entitled to punitive damages which the jury will allow him, in addition to the value of the goods.” By putting the words “jury will” in italics, the court undoubtedly intended to emphasize the fact that the word “will” in the instruction was erroneous.
In Di Palma v. Weinman, 103 Pac. 782, 24 L. R. A. (N. S.) 423, an instruction was given as follows: “If you find the plaintiffs suffered any damage, you will allow interest at the rate of six per cent per annum on the amount of property injured or‘destroyed. ” It. was held that the instruction was erroneous because the question of interest was in the discretion of the jury, and that the instruction deprived the jury of that discretion.
In North Chicago R. R. Co. v. Zieger, 182 Ill. 9, 74 Am. St. Rep. 157, the court said: “To tell a jury that, if they find from the evidence the plaintiff has, by a preponderance of the evidence, proved the material allegations of his declaration, their verdict‘will’ (instead of ‘may’)be in bis favor, is to state the law, and cannot, by any fair understanding of words, be an invasion of the province of the jury. ‘May’ could not, in such connection, properly be understood in the alternative, as ‘may’ or ‘may not’, for, under the premise of the instruction, there was but one proper thing for the jury to do, and that was to find for the plaintiff. ”
[254]*254The other instructions given in behalf of plaintiff, plainly show the meaning the parties intended the word “will” should have in the instruction under consideration The first instruction reads: “The court instructs the jury that if the verdict is for the plaintiff, ■and you allow him both compensatory and exemplary damages, you will state in your verdict the amount allowed on account of each class of damages.” Our statute requires that the verdict of the jury state separately the compensatory and punitive damages allowed.
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GRAY, Special Judge.
—This suit was instituted to recover damages for an assault made on the plaintiff by the defendant’s station agent at the town of Pomona, on the 11th. day of October, 1911. The pleadings and evidence authorized a verdict for both compensatory and exemplary damages, and the jury returned such a verdict, assessing the plaintiff’s compensatory damages at the sum of $750, and his exemplary damages at $2000.
While appellant assigns several reasons for a re-' versal of the judgment, the only one seriously urged relates to the instruction as to exemplary damages. The instruction reads: “The court instructs the jury that if you believe and find from the evidence that the assault and attack upon plaintiff by the agent of defendant, if you find there was such an assault, was wilfully and maliciously made, that is to say, if it was intentional and without just cause, you will assess a further sum by way of punitive or exemplary damages against defendant, ” etc.
The counsel agree that it lies within the discretion of the jury as to whether or not punitive damages will [251]*251be allowed in any ease, and, therefore, the issue is further limited to whether the instruction does leave the matter to the jury’s discretion.'
The rule seems to be that when an instruction is given as to punitive damages, the court should clearly tell the jury that the giving of such damages is a matter of discretion. [Hauser v. Steigers, 137 Mo. App. 560, 119 S. W. 52; State ex rel v. Fidelity & Deposit Co., 94 Mo. App. 184; Callahan v. Ingram, 122 Mo. l. c. 373, 26 S. W. 1020; Ill. C. R. R. Co. v. Houchins, 1 L. R. A. (N. S.) 375; Johnston v. Wells, 112 Mo. App. 557, 87 S. W. 70; Chesapeake & O. Ry. Co. v. Conway, 124 S. W. 861.]
In Callahan v. Ingram, supra, our court said: ‘•‘Exemplary damages are.given by way of punishment,- and the jury should be so instructed thereon as to leave no doubt on the subject. ”
In State ex rel. v. Fidelity & Deposit Co., supra, the question of the right to recover interest was for the jury, and the instruction read: “The court instructs the jury that if you find for the plaintiff you should return a verdict for the amount of the balance due on the note, not exceeding the value of. the stock of goods, furniture and fixtures levied upon by the sheriff under the execution, on the twenty-seventh day of August, 1900, to which you may add six per cent interest from that date to the present time.” While the court affirmed the judgment, yet, relating to this instruction, it said: “The instruction is not as definite and full as -it should have been in calling the attention of the jury to the fact that the allowance of interest was in their discretion.”
In Hauser v. Steigers, supra, the jury were told if they found a verdict for plaintiff in estimating his punitive damages, they might consider defendant’s wealth, etc. In speaking- of this instruction Judge Go odd said: “In itself and unless the meaning was sufficiently clarified by other instructions, this charge [252]*252was suggestive of the notion that punitive damages must accompany a verdict for plaintiff; which, of course, was not the law.”
In Illinois Central R. R. Co. v. Houchins, supra, the court said: “When an instruction is given as to punitive damages the court should clearly tell the jury that the giving of punitive damages is a matter of discretion.”
I believe the rule is correctly and very clearly stated by Judge Ellison in Johnston v. Wells, supra, as follows: “It is proper to inform the jury of their province to allow such damages if they see fit to do so, but there should not be a direction given them which, fairly interpreted, withdraws such discretion and makes the allowance mandatory. ”
Believing that this statement of Judge Ellison’s correctly declares the law, there only remains for consideration the one question: Does the instruction, when fairly interpreted,' withdraw such discretion from the jury? In determining this question, no unusual or technical meaning of the word “will” should be resorted to. • '
In State ex rel. v. Hope, 121 Mo. 34, 25 S. W. 873, the question of interest was in the discretion of the jury, and the court gave an instruction, which, on the measure of damages, read: “If you believe that afterwards, the defendant Hope, as sheriff pf Jackson county, under and by virtue of said writs of attachment against said Schneider, levied upon and took said property or any part thereof, then you will find in this action for the plaintiff, and assess his. damages at the value of the property so taken, together with interest at the rate of six per cent per annum, ” etc. 'The court held that the instruction, as framed, was erroneous, because it interfered with the discretion of the jury regarding interest.
In Carson v. Smith, 133 Mo. 606, 34 S. W. 855, the instruction read: “Then plaintiff is entitled to puni[253]*253tive damages in addition to the value of the property so taken from him and sold; and you will allow him in addition to the value of the goods and property so taken such further sum as not to exceed $1000, as you believe will justly punish the defendants for their wrongful act,” etc. In condemning this instruction the court said: “By it the jury are told that if they find from the evidence that the taking and sale of plaintiff’s property, under attachment against Logan, was malicious, and that the bringing of said attachment was without probable cause, then plaintiff is entitled to punitive damages which the jury will allow him, in addition to the value of the goods.” By putting the words “jury will” in italics, the court undoubtedly intended to emphasize the fact that the word “will” in the instruction was erroneous.
In Di Palma v. Weinman, 103 Pac. 782, 24 L. R. A. (N. S.) 423, an instruction was given as follows: “If you find the plaintiffs suffered any damage, you will allow interest at the rate of six per cent per annum on the amount of property injured or‘destroyed. ” It. was held that the instruction was erroneous because the question of interest was in the discretion of the jury, and that the instruction deprived the jury of that discretion.
In North Chicago R. R. Co. v. Zieger, 182 Ill. 9, 74 Am. St. Rep. 157, the court said: “To tell a jury that, if they find from the evidence the plaintiff has, by a preponderance of the evidence, proved the material allegations of his declaration, their verdict‘will’ (instead of ‘may’)be in bis favor, is to state the law, and cannot, by any fair understanding of words, be an invasion of the province of the jury. ‘May’ could not, in such connection, properly be understood in the alternative, as ‘may’ or ‘may not’, for, under the premise of the instruction, there was but one proper thing for the jury to do, and that was to find for the plaintiff. ”
[254]*254The other instructions given in behalf of plaintiff, plainly show the meaning the parties intended the word “will” should have in the instruction under consideration The first instruction reads: “The court instructs the jury that if the verdict is for the plaintiff, ■and you allow him both compensatory and exemplary damages, you will state in your verdict the amount allowed on account of each class of damages.” Our statute requires that the verdict of the jury state separately the compensatory and punitive damages allowed. Can it be said that it was the intention of plaintiff that the word “will” used in this instruction, should be understood by the jury to mean that it was in their discretion to assess the damages separately?
Plaintiff’s second instruction reads: “If your verdict is for the plaintiff, you will assess his compensatory damages at such sum as you may believe and find from the evidence, ”-etc. In Thompson on Trials, 2d volume, beginning at page- 477,- numerous precedents of instructions are given for compensatory damages, and it will be noticed that the word “will” is used in nearly every instance.
Counsel for plaintiff earnestly insisted in the trial court and in this court, that their instruction as given, contained the word “may” where the word “will” now appears; but this question was before the trial judge at the time he approved the bill of exceptions, and the bill, as approved, contains the instruction as copied herein, and of course, we are confined to the bill of exceptions and must be guided absolutely by it.
Having reached the conclusion that the instruction as given was erroneous, can the judgment be affirmed on the theory that, under the evidence, the error was harmless, and that the jury would have returned a verdict for $2000 punitive damages, if the word “may” had been used instead of “will,” in the instruction? 1
[255]*255In Nicholson v. Rogers, 129 Mo. 136, 31 S. W. 260, the plaintiff sued in slander, and the case was an aggravated one. In reversing the judgment the court said: “The instruction undoubtedly directs the jury, as though defendant was entitled to punitory damages as a matter of legal right. . . . An instruction should have been so framed as to leave the jury free to exercise their discretion. . . . This is undoubtedly a case in which exemplary damages might have been allowed in the discretion of the jury, but not as a matter of absolute right. The instruction in this particular was erroneous. It may have greatly influenced the jury. For this error the judgment is reversed and the cause remanded.”
As I understand our Supreme Court decisions, they plainly declare to give an instruction that tells the jury to allow, or that plaintiff is entitled to, punitive damages if they find a certain state of facts to be true, is reversible error.
This suit was not instituted against the station agent, who, it is claimed, committed the assault on plaintiff, but against the corporation in whose employ the agent was at the time, and I am not prepared to say that the jury, if properly instructed as to their discretion in the matter, would have returned a verdict against the employer for $2000 punitive damages.
The premises considered, if the plaintiff will, within ten days, remit the sum of $2000 allowed as punitive damages, the judgment will be affirmed; otherwise, it will be reversed and the cause remanded.
Sturgis, J., concurs; Robertson, P. J., dissents in separate opinion.