Action for damages alleged to have been caused by the .defendant driving his horse and vehicle, on a street of the city of Los Angeles, in such a negligent, careless, fast, and altogether reckless manner, and without ordinary care and caution, as to run over, knock down, and injure the plaintiff, etc. Judgment was given against the defendant, upon the verdict of a jury, in the sum of eight hundred dollars. From that, and an order refusing a new trial, the defendant appeals.
The court instructed the jury, in writing: “If the jury find, from the testimony, that the plaintiff was injured by the act of the defendant, as alleged in the.complaint, and that in doing such an act the defendant was grossly careless, then the jury may give what is termed punitive, vindictive, or exemplary damages; in other words, blend together the interests of society and of the aggrieved individual, and give damages not only to recompense the sufferer, but to punish the offender, and not exceeding the amount claimed in the complaint.”
From a bill of exceptions it appears that another in*137struction was embodied in the statement on motion for a new trial as originally prepared, as being erroneous, but the plaintiff moved as an amendment to the statement that it be struck out. The court granted the amendment, and the instruction was struck out. The defendant claims that the order striking it out is appeal-able, and may be reviewed in this proceeding.
The statutory remedy for proving an exception claimed to have been refused to be allowed by the judge in accordance with the facts has not been pursued, and the defendant’s contention on the point is without force.
It is further claimed by him that the trial court erred in granting the instruction supra.
It may be said that there might be acts committed by an individual resulting in the injury of another, of such altogether careless a character as to warrant the inference by a jury, from all the facts and circumstances surrounding the transaction, that the defendant, in an action where he was sued for damages for the injury inflicted, was guilty of “oppression, fraud, or malice, actual or presumed.” But while this is so, it does not follow that an instruction to the jury is proper, under section 3294 of the Civil Code, which declares that “gross carelessness” of itself will warrant a verdict, in vindictive or punitive damages.
The language of that section is, that such damages may be given “in any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, actual or presumed.”
It cannot be said that an act of gross carelessness is always an act done through fraud, oppression, or malice, actual or presumed. The evidence showing the grossly careless act may reveal malice, actual or presumptive, oppression, or fraud, but it is not to be said that such malice, or oppression, or fraud, necessarily exist where “gross carelessness” is shown.
*138The instruction under consideration gave the jury to understand that upon gross carelessness being shown to have resulted in the plaintiff’s injury, exemplary damages could be given, but did not state further that the ingredient of oppression, or fraud, or malice, “ actual or presumed,” must be shown in evidence to have existed on the part of the defendant, in the doing of the grossly careless act.
The instruction was not, therefore, in accordance with the statute supra.
We advise that the judgment and order be .reversed.
Hayne, C., concurred.
The Court.For the reasons given in the foregoing opinion, the judgment and order are reversed.