delivered the opinion of the Court:
It is insisted that the court erred in giving appellee’s instructions. No objection is perceived to the first and third of these instructions as given. The second, however, is wrong, as it assumes that the jury will find a verdict for appellee. It informs the jury, that in making up their verdict, they are authorized to take into consideration the pecuniary circumstances of appellants, and their ability to pay the verdict that might be rendered against them. This instruction takes from the jury the question whether appellants were guilty of the trespasses charged, and deprives them of the right to pass upon the evidence and determine the great and essential question presented by the issue in the case. It was calculated to mislead the jury, and may have produced that effect. It should, therefore, have been refused or modified before it was given, so as to have left the question of whether appellants were guilty of the trespasses to the jury.
In the action of trespass, the question of whether it was wantonly or willfully committed, is important to be considered in measuring the damages. Where the wrong is wanton, or it is willful, the jury are authorized to give an amount of damages beyond the actual injury sustained, as a punishment, and to preserve the public tranquillity. Foot v. Nichols, 28 Ill. 486. But when the wrongdoer acts in good faith, with honest intentions, and with prudence and proper caution, and he shall invade the rights of others so as to render himself liable to the action, preventive or exemplary damages are improper. If no aggravating circumstances appear in the evidence, then vindictive damages should not be given. Whether the trespass is committed under circumstances of aggravation, is a question for the consideration of the jury. If this instruction was understood by the jury, as it most likely was, as requiring them to assess vindictive damages, as it took from their consideration all question of aggravation, we think that it virtually told them that they should find such damages. That question should have been left to their determination.
- For these "reasons the judgment of the court below must be reversed, and the cause remanded.
Judgment reversed.