— It is very true that possession is prima faeie evidence of the ownership of property. Such is the presumption, when one is found in possession of property. So, if one be sued for property, and the plaintiff proves prior possession, antedating that of defendant, accompanied with customary acts of ownership, this authorizes a recovery by the plaintiff, in the absence of countervailing proof. — 1 Brick. Dig. 572, §§ 10, 11; Hare v. Fuller, 7 Ala. 717 ; Nelson v. Bondurant, 26 Ala. 341; Tarry v. Brown, 34 Ala. 159. So, title, with a right to the immediate possession, will maintain the action against a wrongdoer. — Nelson v. Bondurant, supra.
While, however, possession will maintain or defeat an action against a wrongdoer, and is, to that extent, evidence of title, it is not title, nor the equivalent of title. It is but evidence of title, which may be rebutted and overturned. Title is a fact. Possession is only testimony tending to prove it. Pleading is-made up of matters averred as facts, and not of testimony which merely tends to prove them ; unless, perhaps, in cases where the evidence averred as itself the fact, or its equivalent. The averment of a written contract executed, may be of this class. The second plea as originally filed, and as first amended, was in each case insufficient, and the demurrer to it was rightly sustained.
Only one clause in the general charge was excepted to, and we find no error in that.
In Barbour County v. Horn, 48 Ala. 566, 576, the following language is found, declaratory of the rule for exemplary dama*181ges in actions of trespass : “ Where there is no malice connected with the wrong complained of. or such gross negligence or oppression or fraud as amounts to malice, the compensation, or amount of damages, should he confined to the actual injury and its immediate effects.” In S. & N. Railroad Co. v. McLendon, 63 Ala. 266, we quoted this language without dissent. In that case, after quoting the rule as declared in many adjudged cases, we in effect said, there could be no punitive or exemplary damages, in the absence of fraud, malice, oppression, willfulness, wantonness, recklessness, or gross carelessness, as distinguished from mere carelessness. In reference to carelessness, or negligence, in the connection here considered, we said it depends on the degree, whether simple or gross. In the'later case of Lienkauff v. Morris, 66 Ala. 406, we again considered this question, and reviewed many authorities. The sum of what we said and approved in that case is, that to authorize punitive, exemplary, or vindictive damages (different names for the same thing), there must be “gross negligence within the strictest signification of the phrase, which must be construed to mean such entire want of care as to raise a presumption that the person in fault is conscious of the probable consequences of his carelessness, and is indifferent, or worse, to the . danger of injury to the persons or property of others; ” or that the act complained of “ was done willfully [in its strong sense], 'or was the result of that reckless indifference to the rights of others, which is equivalent to an intentional violation of them;” or “where the injury has been wanton, or malicious, or gross ; ” or “ where fraud, malice, or oppression appears ; ” or, we may add, where the taking is accompanied with violence, or insulting or contemptuous language or demeanor. A reason for this rule which requires more than a mere disregard of the rights of others, to authorize the assessment of vindictive damages against a trespasser, is found in the fact, that that element exists in every trespass, except those committed in honest mistake, or by accident, or, possibly, by misadventure. So, if every trespass committed in disregard of the rights of another, entitles the injured party to vindictive damages, there are few conceivable trespassers on whom such punishment may not be infiieted.
The second charge given at the instance of plaintiff, is in the following language: “ If you find from the evidence that the property was wrongfully taken by the defendant, and that the act of taking was done under such circumstances as show a disregard of the rights of plaintiff, . . . then you are authorized, in addition to the value of the property and interest thereon, to assess such further damages as you may deem just and proper, in order to punish the defendant for his willful *182wrong, and to prevent others from committing like offenses.” In giving this charge, the court was not without authority. See 2 Add. on Torts, Wood’s-ed., § 1392, note 1. We hold, however, that it does not assert the true rule, and that the Circuit Court erred in giving this charge. There is similar language, somewhat qualified, in the first charge given at plaintiff’s request. Such language should be avoided on another trial.
The charges asked by defendant were properly refused. Exemplary damages ate not special damages, which need be claimed in the complaint, as a condition of their recovery. This disposes of charge 1. The measure of proof postulated in the second charge asked, is too high. “ Satisfactorily convinced,” meets the requirement in a civil suit. There are other objections to this charge, not necessary to be here repeated. Charges 6 and 12 are both faulty, and not m accordance with the rule laid down above.
As this case must go back for another trial, we feel it our duty to notice an objectionable clause found in the general charge, which does not appear to have been excepted to. We do this in the fear the case may return upon us, presenting this question. One question in the court below raised the inquiry, whether Wilkinson, when he took and carried the corn away, had been notified that Searcy claimed it as his own. On this, Searcy and Wilkinson were directly -at. issue. The court charged on this question as follows : “ If you find from the evidence that defendant in his evidence testified lie took the corn under the honest belief it was Simon’s under the mortgage, and you find from the evidence the acts and conduct of the defendant in the transaction speak louder than the words thus testified by him, and show that the taking was not under such honest belief,” &c. This was not the statement of amere legal principle, to aid the jury in weighing the testimony. If it had been, we would find in it nothing to criticise. It is frequently the court’s duty to furnish such rules for the guidance of the jury. Beyond such rules, however, the duty of weighing the testimony, and of determining its credibility and what it proves, falls exclusively within the province of the jury.
Reversed and remanded.