Noonan v. Luther , 104 N.Y.S. 684 ( 1907 )

Per Curiam :

Whether the defendant had a right in any event to remove the plaintiff from his premises by force and whether, .if that right existed, he' used more force than was necessary for that purpose, were the two questions submitted by the learned trial judge to the' jury. Defendant’s contention was that a difference arose between him and the plaintiff as to the amount of money that was owing to her; that the plaintiff began in an excited way to say, “ I want my money, I want my money,” and to cause disturbance before his .guests ; that he warned her to desist and leave the premises, which she refused to do, and that he thereupon ejected her, using only such force as was necessary. The plaintiff’s claim, on the other i. hand, is that upon her insisting that she Was entitled to more money than he was willing to admit, he forcibly and without warning took hold of her and ejected her. from the premises.

The learned trial judge, in charging the jury, submitted to them the question of compensatory damages, and then added: “If you. come to the conclusion, that the assault was wanton, malicious and attended with insult or was oppressive to her, or there were circumstances that aggravated the assault, or if he was guilty of culpable negligence in it, then you may apply to him a further element .of damage, smart money as it is called, such as in your judgment you • think a man ought to pay for' doing such a wrong.”

In volume 2 of Words and Phrases Judicially Defined (at p. 1780) it is said : “ Culpable negligence ’ is the omission to do something which a reasonable, prudent and honest man would do, or the doing of something which such a man would not do, under the circumstances surrounding the particular case.”. Other definitions are there'given, but, we find no definition of culpable negligence which implies any malice or recklessness, or anything further than a failure to- exercise the care which a reasonable prudence would . suggest.

In volume 6 of Thompson’s Commentaries-on the Law of Eegli- - gence (2d ed. at § 7167) it is said: “Willful and wanton conduct justifying the award of exemplary damages may occur where the conduct is so gross as to' raise the presumption of a conscious indifference to consequences, or a wanton disregard of the rights of others. ■ * * * It is only where this reckless disregard of the rights of others and conscipus 'indifference to consequences are shown that it properly can be said that exemplary damages aró recoverable.”

Under these authorities the jury was improperly allowed to award exemplary damages for a merely negligent exercise of a right to eject the plaintiff from the hotel after she had refused to go upon the defendant’s command.

The’judgment and order should be reversed and new trial granted, with costs to appellant to abide event. . ■

All concurred.

Judgment and order reversed and new trial granted, with costs, to appellant to abide event. .