1 But in most jurisdictions the law is otherwise. Burns v. Campbell. 71 Ala. 271; Mendelsohn v. Anaheim Lighter Co. 40 Cal. 657; Grand v. Van Vleck, 69 111. 478; Cleghorn v. New York Central, etc. R. R. Co. 56 N. Y. 44; Texas, etc. Ry. Co. v. Johnson, 75 Tex. 158. Unless the employer was himself " chargeable with gross misconduct. Such misconduct may be established by showing that the act of the servant was authorized or ratified, or that the master employed or retained the servant know*, ing that he was incompetent or, from bad habits, unfit for the position he occupied. Something more than ordinary negligence is requisite; it must be reckless and of a criminal nature, and clearly established." Cleghorn v. New York Central, etc R. R. Co. 56 N. Y. 44, 47. See also Lienkauf v. Morris, 66 Ala. 406; Becker v. Dupree, 75 111. 167; Sawyer v. Saner, 10 Kan. 466; Kehrig v. Peters, 41 Mich. 475; Haines v. Schultz, 50 N. J. L. 481; Eviston v. Cramer, 57 Wis. 570.

In suits against railroad companies, it has been held that exemplary damages cannot be recovered for the negligence of an employe, if the company itself were in no fault (ll) But the prevailing rules would seem to be that such damages may be recovered if the negligence be gross or the injury wanton and violent (lm) l ant has inflicted upon her. This he is entitled to recover; and, if sickness had followed, he could have claimed to be reimbursed for the expenses attending such sickness; but we all think that he cannot recover beyond his actual loss. The young female can herself maintain an action, in which her damages may be assessed according to the rule laid down at the trial, and if the father could likewise recover them in this case, they could be twice claimed in civil actions, and the defendant would also be liable to indictment. The action for seduction is peculiar, and would seem to form an exception to the rule, that actual damages only can be recovered, where the action is for loss of service consequential upon a direct injury; but there the party directly injured cannot sustain an action, and the rule of damages has always been considered as founded upon special reasons only applicable to that case" In Rippey v. Miller, 11 Ired. 247, it was held, under a statute enacting that all actions of trespass and trespass on the case shall survive when they are not merely vindictive, that in an action against the representatives of one deceased, who had committed a trespass upon the property of the plaintiff, the plaintiff cannot, no matter however aggravated the trespass may have been, recover vindictive damages. In Amer v. Long-streth, 10 Pa. 145, it was held, in an amicable action of trespass instituted to try the rights of the parties, that the damages must be measured by the actual injury, although there might have been a wanton invasion of the plaintiff's rights. In Singleton v. Kennedy, 9 B. Mon. 222, it was held, that in an action on the case for fraud, in the sale of personal property, the jury were not authorized to assess vindictive damages. But see Spikes v. English, 4 Strobh 34. In Barnard v. Poor, 21 Pick. 378, it was held, in an action on the case against the defendant for carelessly and negligent]v setting fire on his own land, whereby the plaintiff's property on adjoining land was destroyed, that it was not material whether the proof established grots negligence or only want of ordinary care; for in either case the plaintiffs would be entitled to recover in damages the actual amount of loss sustained, and no more, in the form of vindictive damages or otherwise. But in Whipple v. Walpole, 10 N. H. 130, it was held, that in cases of gross negligence exemplary damages might be recovered.

(l) Nightingale v. Scannell, 18Cal.315.

(ll) Ackerson v. Erie R. R. Co. 3 Vroom, 254. McKeon v. Citizens R. R. Co. 42 Mo. 79.

(Im) Penn. R. R. Co. v. Books, 57 Pa. 339; Baltimore, etc. R. R. Co. v. Breining, 27 Md. 378; Kentucky, etc. R. R. Co. v. Dills, 4 Bush. 593; Chicago, etc. R. R. Co. v. Flagg, 43 111. 364. See p. * 172, n. (hh).

1 The proceeds of an accident policy cannot be allowed to reduce the damages of an injured passenger Brad burn v. Great Western R Co. L. R. 10 Ex. 1; Jebsen v. East & West India Dock Co L. R. 10 C P. 300. The injured party is not entitled to exemplary damages as a matter of right. Wabash, Ac R. Co. v. Hector, 104 111. 296. Milwaukee, ftc. R. Co v. Arms, 91 U. S. 489, decided that exemplary damages should not be awarded for an injury caused by a railroad collision due to negligence, unless the result of wilful misconduct, or of that reckless indifference to the rights of others which is equivalent to an intentional violation of them. Thus exemplary damages will be given for a deliberate and forcible expulsion of a passenger for the non-payment of fare illegally demanded, such as the jury may consider a proper punishment therefor. Baltimore Turnpike v. Boone, 45 Md. 344; Philadelphia, etc. R. Co. v. Larkin, 47 Md. 155. In Wisconsin the rule is stated to be that a railroad company is not liable in exemplary damages for its agent's malicious injury while acting within the scope of his employment, unless it

* There is, however, a difficulty, as well as a great difference among the courts, in their practice in relation to verdicts which are alleged to be excessive. In those cases in which compensative damages may be ascertained within narrow limits by computation, it is easy to say when these limits are certainly * exceeded. And, generally, in these cases, and in actions upon contract or on tort, when no actual bad motive is relied upon, it is for the court to direct the jury in what way, or by what rule or measure they should assess the damages. Vindictive or punitory damages cannot be allowed on a mere breach of contract, nor for a trespass not malicious in its character, (m) But there are cases which seem to justify the remark sometimes made in them by the courts, that there is no rule by which the damages can be measured, and they must be left to the discretion of the jury, (n) And in such cases a verdict would not be disturbed for excess, unless it indicated wilful perversity, or blinding prejudice or passion, or an entire misapprehension of the merits of the case and the duty of the jury, (o)