ON PETITION FOR REHEARING.
1. It is urged for the first time upon this application for a *69rehearing that exemplary damages are not recoverable in this, action, because not specially declared for. The argument is that in this state, since the decision of Murphy v. Hobbs, 7 Colo. 541, exemplary damages are not allowable except upon statutory authority, and that statutory damages must always be specially declared for. Where a statute expressly provides for the recovery of damages equal to twice or three times the actual damages, as in case of waste, or wrongful levy upon exempt property, the better practice is to declare specially upon the statute for the statutory damages. In such case the value of the property furnishes a definite standard by which the damages may be measured. But where the damages claimed are essentially unliquidated, as in case of injury to the character, rights, or feelings of another, and the statute does not specify any definite limit to the exemplary damages allowable, except that they be reasonable, the common law practice may be followed in declaring for and awarding such damages. Thus tested the complaint' states facts sufficient in substance to support a verdict for exemplary damages. Moreover, while the complaint does not contain the precise statutory words upon which exemplary damages are allowable, it does contain words of like import. Race v. Oldridge, 90 Ill. 250; Reed v. Northfield, 13 Pick. 94; Day v. Woodworth, 13 How. 369; Wymond v. Amsbury, 2 Colo. 213; Hallack v. Stockdale, 14 Colo. 198.
2. It is further urged that the trial court refused to give to the jury the following instruction: “ The court instructs the jury that the plaintiff must prove her entire case by legal evidence, and that the admissions of her husband, made to her and testified to by her, they will entirely disregard in considering their verdict.” This request to charge was contrary to the law applicable to the issues and the evidence, as ruled at the trial. See former opinion. If defendant desired a written instruction in accordance with the oral ruling of the trial court, specifying the purpose for which the husband’s declarations to his wife were competent as evidence, such instruction should have been requested at the proper time. We *70cannot accede to the view that it is necessarily erroneous for a trial court to omit to charge upon every point of a case, or to omit to give a correct instruction of its own motion upon every point upon which an incorrect instruction is prayed. New trial records could stand such a test. It is true the code provides that “ the court shall give such instructions upon the law to the jury as may be necessarybut it is evident that this was not intended to supersede the diligence of parties or their counsel, since the same section also provides the manner in which parties shall prepare such special instructions as they may desire to have given. Code, sec. 187. In the present case it is evident the jury understood the purpose for which the declarations of the husband were admitted, and that no special instruction upon that point was really necessary.
8. It is earnestly insisted that this is not a case where a verdict should be upheld upon the evidence.notwithstanding ■ an erroneous instruction ; and in this case it is again urged that it was inconsistent for the wife to commence suit against the mother-in-law, charging her with causing the husband’s abandonment and desertion, and at the same time to commence a suit against the husband, charging him with cruelty. This argument has but little force. The evidence shows the mother to have been grossly in fault for causing her son to abandon and forsake his wife, but this misconduct did not necessarily excuse the son for yielding to his mother’s dictation. The divorce case was reviewed by the court of appeals. See Williams v. Williams, 1 Colo. App. 284, where Mr. Justice Bissell, speaking of the identical transactions involved in this case, uses the following language : “ It would be an idle thing to detail what took place after his mother, Mrs. Williams, arrived in Denver. It was a cruel, bitter, unholy persecution. A weak, vacillating, purposeless son was controlled by a dominating woman, to the end that the tie which bound him might be severed.” These remarks of the learned judge were not called to our attention until our former opinion was announced, but they fully confirm the view we then *71expressed. Upon further consideration of the evidence and circumstances of the case, we feel constrained to say that the jury were bound, under the evidence, to find a verdict in favor of plaintiff. Moreover, the evidence, without substantial conflict, shows defendant’s conduct to have been, not only grossly unjustifiable, but willfully and intentionally so. It certainly shows on the part of defendant a wanton and reckless disregard of plaintiff’s rights and feelings, and thus fully establishes the foundation for exemplary damages under ther statute. See French v. Deane, 19 Colo. 504. The verdict is obviously correct; and though the instruction complained of is erroneous, as an abstract proposition of law, it should not, as was said in our former opinion, work- a reversal of the judgment.
The remaining matters urged in favor of a rehearing require no discussion. The petition must be denied.
Rehearing Denied.