concurring. Inasmuch as plaintiff sought to recover, not only actual damages, but also smart money, I am of opinion defendant was entitled to introduce testimony relative to the character and occupation of plaintiff, in mitigation of the exemplary damages.
The philosophy of punitory damages is based upon the effect of the unlawful act, in outraging the feelings of the sufferer ; and also upon the justice and necessity of punishing beyond real damage to the person or property, him who has molested, and injured one pursuing avocations not reprobated by the State, or performing all the obligations of good citizens, and, therefore, specially under the protection of the law.
*449All rules of law ought to be established upon equitable principles.
There would be neither reason nor common sense in allowing the same amount of exemplary damages for a tort against one whose illegal acts were its exciting cause, as against a good citizen.
If injury to the feelings be considered in estimating the damages, then the sentiments and delicacy of the hardened violator of the law, are not to be valued at the same rate as those of the citizen who obeys the laws of his country. I concur in the opinion of Mr. Justice Buchanan.