This case comes before this court by a motion for a verdict against evidence, under Chap. 51 of the Public Acts of 1893, and also by way of appeal for the revision of certain claimed errors set forth in the reasons of appeal. One of these errors relates to ■ the charge of the court upon the question of damages, aud as we are of opinion, for the reasons hereinafter given, that for' this error a *394new trial must be granted,- it will not be necessary to consider the questions raised upon the motion, nor to notice all the errors assigned upon the appeal.
The facts bearing upon the questions to be considered are, in substance, the following: The complaint charges that the defendant, as a police officer, signed a false return upon a warrant to which was attached a subpoena, therein alleging that he had duly served said subpoena on the plaintiff, when in' fact no such service had been made; that in consequence of said false return a capias had been duly issued for the arrest of the plaintiff for failure to obey said subpoena; that she had been arrested upon said capias, taken to the police station and detained there for some time; and that by reason of said arrest she had been deprived of her libertyfor a time, and had endured much mental suffering.
. On the trial of the case it was admitted that the plaintiff had been arrested on a capias issued by the Police Court of the city of Meriden, for failure to appear as a witness in a certain case in said court, and was obliged to go to police head-quarters to get discharged, and was there detained about an hour. It was also admitted that she had not been summoned as a witness in said case previous to her arrest on the capias.
The plaintiff offered evidence to prove and claimed to have proved, that her arrest upon the capias was caused by reason of a false return signed by the defendant, upon a warrant issued for the arrest of one Ryan, which return, so far as it relates to the service of the subpoena attached to said warrant, reads as follows: “ And I duly served the within subpoena by reading the same to the within named witnesses, and to their acceptance.” This return the plaintiff laid in evidence. The plaintiff’s name appeared in the subpoena.
The defendant offered evidence to prove and claimed to have proved, in substance, that he, in company with another police officer, had arrested Ryan on said warrant; that after the arrest, in obedience to the direction of his superior officer, the defendant signed the return laid in evidence, in blank, and handed the warrant back to his superior, stating to him *395that the return was incomplete, and that no witnesses had been summoned; that the defendant never saw the subpoena attached to said warrant, and it was never given him to serve; that he did not know that the plaintiff’s name was in the subpoena till long after her arrest on the capias; that he did not return said warrant to court, and that he knew nothing of the capias till after it was issued and had nothing whatever to do with the issuing of it. The plaintiff offered no evidence to contradict this testimony.
The complaint does not allege that the defendant, in doing what it says he did, intended to injure the plaintiff, or that he acted maliciously, or from improper motives, or that his negligence was gross or wanton; and upon the trial the plaintiff made no claim of this kind, and the judge in his charge treats the case as one of ordinary negligence. Notwithstanding this however, and probably through mere inadvertence, the judge instructed the jury, if they came to the question of damages, that they might take into consideration not only the actual damages sustained by the plaintiff, including the injury to her feeling, but also “such expense as she may have been put to, to conduct her cause; ” and thus in effect told the jury that even if they found that the negligence of the defendant was not gross or wanton, still they were at liberty to award exemplary damages; for the expenses of the suit belong to the class of exemplary damages, and can only be awarded in cases where the jury are empowered to give such damages; St. Peter’s Church v. Beach, 26 Conn. 355; and the jury were not told that they must find the negligence to have been gross or wanton, before they could award exemplary damages.
Under the circumstance disclosed by the record, the case does not appear to be one calling for an award of exemplary damages. In cases brought to recover damages for negligence, it is only where the negligence is gross or wanton that exemplary damages can be awarded; that is, in eases where the conduct causing the injury clearly shows that reckless indifference to the rights of others which is equivalent to an intentional and wanton violation of those rights. *396St. Peter's Church v. Beach, supra; Welch v. Durand, 36 Conn. 182, 185; Mason v. Hawes, 52 id. 12.
But the plaintiff claims that it is for the jury to determine whether the negligence was gross or wanton, or not. Conceding this to be so, it still remains true that the defendant, at the very least, was entitled to have the jury told that they could not award exemplary damages unless they found gross or wanton negligence, and this was not done. The court erred in this regard, and for this reason a new trial must be granted.
One or two of the other claimed errors assigned will be briefly noticed. The defendant offered evidence to prove “ that it was the custom in Meriden of the officer making the arrest on a warrant, to sign the return, although a different officer served the subpoena attached thereto.” The court excluded the testimony and the defendant excepted. This ruling was correct. The question was whether the defendant had been guilty of negligence in signing the return, under the circumstances of this case. The excluded evidence was irrelevant upon this precise question, and so far as we can see it was offered only as bearing upon that question.
The plaintiff was allowed to prove, against the objection of the defendant, that she suffered mentally on account of the arrest. This ruling was also correct. It is true, as a general rule, that mental suffering alone does not constitute a cause of action; but it may be an element of damages when it is a natural and proximate consequence of some recognized cause of action. In many actions of tort mental suffering is recognized as the ordinary natural and proximate consequence of the wrong complained of, and in such cases, if properly alleged, may be proved as an element of actual damage. This is so in actions of slander and libel, seduction, breach of promise of marriage, false imprisonment and cases of like nature. Swift v. Dickerman, 31 Conn. 285; Canning v. Williamstown, 1 Cush. 451; Ballou v. Farnum, 11 Allen, 73; Vogel v. McAuliffe, (R. I.) 31 Atl. Rep. 1; Larson v. Chase, 47 Minn. 307. We think the case at bar comes within the class of cases where mental suffering, properly *397alleged, as here, may be proved. These two are the only other assignments of error we deem it necessary to notice.
The motion for a new trial is denied ; bnt upon the appeal there is error, and a new trial is ordered.
In this opinion the other judges concurred.