Dissenting Opinion.
Bonner, Associate Justice.In my opinion the facts in .this case, under the rules of law allowing exemplary damages for gross negligence, did not authorize this character of damage; and as this element, under the charge of the court, may have largely influenced *115the amount of the verdict, I feel it my duty to dissent, upon this point, from the decision of the majority of the court.
Considered as a breach of contract, exemplary damages were not recoverable. R. R. Co. v. Shirley, 54 Tex., 142.
Considered as a tort, the testimony fails to show that reckless indifference or evil motive upon which rests the rule of exemplary damages in such cases.
The rule is thus stated by a learned text-writer: “ The damages • recoverable for. personal injuries will mainly depend upon the nature and character of the injury and the manner in which it was inflicted. If it was the result of mere negligence that amounts to little more than an accident, less damages are recoverable than in cases where it is of a willful or insolent character. Because, in the latter -case, the jury may go beyond the actual damage and give something by way of example; while in the former they are restricted to the actual damage. The rule is that, whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of simple compensation for the wrong committed, but may give against the tortfeasor punitive or exemplary damages. Malice, in this rule of law, is not merely the doing of an unlawful or injurious act; the word implies that the act complained of was conceived in the spirit of mischief, or of criminal indifference to civil obligations.” Wood’s Mayne on Damages, 597, citing numerous authorities in notes; 2 Sedg. on Damages (7th ed.), 327, note, title Gross Negligence; Field on Damages, §§ 25, 78, 83-4; Shear. & Redf. on Negligence, § 600; Smith v. Sherwood, 2 Tex., 461; Ootton Press Co. v. Bradley, 52 Tex., 600.
In Milwaukee, etc., R. R. Co. v. Arms at al., Mr. Justice Davis, delivering the unanimous opinion of the court, after quoting the language of Mr. Justice Campbell in Philadelphia, etc., R. R. Co. v. Quigley, 21 How. (U. S.), 214, giving the above definition of malice in this connection, and stating that the rule, though announced in an action for libel, is equally applicable to suits for personal injuries received through the negligence of others., says: “Bedress commensurate to such injury should be afforded. In ascertaining its extent, the jury may consider all the facts which relate to the wrongful act of the defendant, and its consequences to the plaintiff; but they are not at liberty to go. farther, unless it is done willfully, or was the result of that reckless indifference to the rights of others which is equivalent to an intentional violation of them. In that case the jury are authorized, for the sake of public example, to give *116such additional damages as the circumstances require. The tort is aggravated by the evil motive, and on this rests the rule of exemplary damages.” 91 U. S., 493. To the same effect is Western Union Tel. Co. v. Eyser, reported in note to above case.
In Prickett v. Cook, Dixon, O. J., said: “ Exemplary damages in cases of this nature can only proceed from gross and criminal negligence — such negligence as evinces upon the part of the defendant a wanton disregard of "the safety of others, and which in law is equivalent to malice.” 20 Wis., 378.
In Bannon v. B. & O. R. R. Co., Bowie, C. J., speaking for the court, says that the term gross negligence “ implies malice and evil intention. Hence, in all questions of punitive or vindictive damages, the intention of the defendant is a material consideration.” 24 Md., 124.
In Wallace v. The Mayor, etc., of New York, the rule is laid down that “ the recovery of punitive or vindictive damages is allowed only where the act causing the injury has been willfully done; where the circumstances show that there was a deliberate preconceived or positive intention to injure, or that reckless disregard of the safety of preson or property which is equally culpable.” 2 Hilton, 452.
In Neil v. Glanding it was said that “ the injury not having been willful, there was no room for vindictive damages.” 42 Pa. St., 499.
In Cochran v. Miller, 13 Iowa, referred to in the opinion of the court in the present case, the statement of facts is so meager that we cannot ascertain the circumstances of malpractice for which the physician was held liable for exemplary damages. Under our statute, to constitute a case of negligent homicide punishable as a crime, “ there must be an apparent danger of causing the death of the person killed or some other.” Pasch. Dig., art. 2238; Rev. Penal Code, art. 581.
This “ apparent danger ” necessarily implies a knowledge of the act committed and its probable consequences.
The cases quoted from above have been selected from those in which damages were sought for personal injuries from alleged gross negligence. From these, and others which could be referred to, it is believed that the true rule on this subject, and which is supported by sound principle, is that exemplary damages should be recovered in those cases only in which the act complained of was so carelessly performed as to show in fact, or by strong presumption, a reasonable knowledge of the danger accompanying it, and a reckless indifference to the probable consequences which might naturally result; *117and not in those cases in which- a mistake or mishap may unintentionally, though carelessly it may be, have happened. Although the act for which exemplary damages may be recovered in such cases is usually denominated gross negligence, it is not so much the negative act of omission, which constitutes negligence proper, as one which partakes more of a positive act of commission, which goes beyond the line of mere negligence, and .becomes an affirmative act, done either intentionally in fact, or under such circumstances as that an intent to injure might reasonably be presumed, by which it becomes criminal or quasi-eriminal in its nature. Cotton Press Co. v. Bradley, 52 Tex., 601.
The propriety of allowing exemplary damages at all has been denied by learned judges, and the doctrine should not be extended. Fay v. Parker, 53 N. H., 342; Pierce on Railroads, 307, and authorities cited in note 3.
The testimony in this case shows that the defendant was skillful in his profession; that he seemed anxious to discharge his whole duty; desired to be sent for to adjust the ligature should it become detached; no reason or motive is shown why he should carelessly, much less willfully, have caused the injury; on the contrary, his own interest and reputation, to say nothing of the ordinary promptings of humanity to render aid and not to inflict injury under such circumstances, would seem conclusively to have prohibited intentional wrong. ECe unfortunately may have committed the act with which he is charged; and if so, although he may be liable for actual damages, he should not, under the circumstances, be liable also for exemplary damages.