(dissenting). The majority opinion sustains the collecting of punitive damages in a case involving a one-hour deprivation of dentures. Next may come the case approving such added damages for the near-identical deed of toupee-snatching. We do not minimize the unpleasantness of an hour spent without newly acquired dentures, nor of an hour spent without the adornment of a substitute headpiece. We agree that compensatory damages for the deprivation and humiliation involved are justified. We do- not agree that the added penalty of punitive or vindictive damages is also warranted in such instance. We would hold that the public interest does not require nor ought the public policy permit the awarding of punishment damages in this type of situation.
The road that has brought us to the present state of affairs in regard to punitive dámages in Wisconsin courts is a long one, paved with good intentions. Over one hundred years ago, this court decreed that a plaintiff under certain circumstances could be awarded extra damages to punish the defendant in addition to those that compensated the plaintiff.1 Early attacks upon the *223wisdom of this idea were repulsed.2 Such punishment damages have been awarded in this state in cases involving batteries, trespass to realty, libel and slander, seduction, breach of promise, alienation of affections and other categories of tort action.3 We find, however, no cases where victims of rapes, robberies, burglaries, forgeries or highway accidents have been given similar retributive awards.
What is the basis?
What is the justification in certain situations for permitting a tort-plaintiff to recover money beyond the compensatory damages established? It has been said that such punitive awards are permitted in most jurisdictions “. . . as a punishment to the defendant and as a warning and example to deter him and others from committing like offenses in the future.” 4 Can it seriously be contended that such underlying justification is present in the case before us ? Would not the recollection of the compensatory damages paid render very unlikely a repetition by the husband and wife here involved of the offense of denture detention? Would not the $1,000 compensatory damage award, standing alone, be a sufficient deterrent to others who might be tempted to hold dentures as security for an unpaid loan? Are we dealing here with a propensity to grab and hold upper plates *224that is marked either by a high rate of recidivism or contagion? Is there here present a situation that justifies the heavy-handed use of punishment to deter ? We think not, particularly because we do not deal with a matter of plaintiff’s rights,5 but the question of what the public interest requires and what the public policy should permit.
What are the limits ?
While the roadway to punitive awards has been around a long time, it always has had limits since such punishment awards were first approved. It has often been said that to warrant the imposition of punitors’' damages, it must appear that the wrong was inflicted “under circumstances of aggravation, insult, or cruelty, with vindictiveness and malice.” 6 The road was widened with the holding that, where actual malice was not present, it would be enough that there be “wanton or reckless disregard of the plaintiff’s rights.” 7 In a comparatively recent case, the road limits broadened, with this court approving, this statement:
“ Where the defendant’s wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action “punitive” or “exemplary” damages, or what is sometimes called “smart money.” ’ Prosser, Laws of Torts (2d ed.), p. 9, sec. 2.” (Emphasis supplied.) 8
*225Elsewhere it has been said that punitive damages “are imposed in view of the enormity of the offense.” 9 Under any of these tests, can it be fairly concluded that the unfortunate altercation between the parties here involved moves into that category of seriousness that warrants awarding of punishment damages ?
Unless malice is equated with momentary loss of temper or is to be presumed from an act of poor judgment, there is no element of malevolence or vindictiveness present here. The bicuspid corpus delicti is present only because of an interest-free loan made by defendants to plaintiff. Granted that they expected her to remain in their employ and to pay them back from her earnings, goodwill, not ill will is evidenced by the transaction, the advancing of the $200 to pay the dentist.
Conceding that the taking of the upper plate which belonged to the plaintiff, even if paid for by the defendants, was an invasion of her rights, can it be termed “wanton or reckless?” It is evident that there was a mutually cordial, supportive and agreeable relationship between the old couple and the young lady who worked for them in their nursing home, almost up to the incident here involved. It was the lady’s decision, loan unpaid, to go to work for someone else that precipitated a change in the relationship. Is this flare-up of emotions, this shift in mood, this disappointment of expectations on the part of the employing couple a foundation for a finding of wanton and reckless disregard of the rights of another? If so, the most trivial of altercations and mildest of scuffles dons the garment of wantonness or recklessness.
Given the unfortunate escalation of unpleasantness in the argument of the parties, can its climax, the grabbing the dentures, be found to have the “character of outrage frequently associated with crime?” If the police had been called to stop the argument, instead of being called to *226get the plate back, would they have made an arrest? If they had, would a district attorney have issued a state warrant for battery, or even for disorderly conduct, on the basis of what had taken place? If he had, would a misdemeanor court have considered the situation here to involve violation of a criminal statute or as a falling-out among friends to be settled by an apology and a handshake? Is this the type of situation that Prosser contemplated when he wrote of an “outrage frequently associated with crime?” We think it falls short of being that. Certainly, if punitive damages are to be imposed “in view of the enormity of the crime,” this is no situation justifying their imposition. We do not attach great weight to the fact that the denture-deprived plaintiff went to the police to get her denture back, not to get a warrant. This is an unfortunate but predictable concomitant of placing the weapon of punishment to deter in private hands. Why should the plaintiff seek a warrant when her case would not be aided by the securing of a public sanction or penalty prior to or in addition to the private retribution she was seeking?
We have grave doubts about the public policy involved in thus placing in private hands the use of punishment to deter. Some observers challenge the right or efficacy of even the state using punishment as punishment to deter.10 At least in the public administration of criminal justice there are clearly defined crimes, clearly delineated penalties, constitutional protections and in-built restraints.
However, we need not challenge the whole idea of placing the right to seek retribution, in addition to compensation, in private hands, to challenge the applicability of such concept in the case before us. Whether or not it operates to deter scalpings, it ought not be used in the effort to deter toupee dislodgings. The concept of punitive damages, it has been said, is “not a *227favorite of the law,” should be “exercised with great caution,” and properly be “confined within the narrowest limits.” 11 This case, it appears to the writer, is well beyond the limits.
So we would sustain the admittedly high award of $1,000 for compensatory damages, as including every ounce of hurt and humiliation that can be placed upon the scales, and strike the awards for punitive damages as not being warranted by the facts of this case.
I am authorized to state that Mr. Justice Leo B. Hanley joins in this dissent.McWilliams v. Bragg (1854), 3 Wis. 377 (*424).
Wisdom doubted but “. . . too late to overturn . . .” said Mr. Chief Justice Edward Ryan in Bass v. Chicago & N. W. By. (1877), 42 Wis. 654. Claim that punitive damage award constituted double jeopardy rejected. Brown v. Swineford (1878), 44 Wis. 282.
See Exemplary or Punitive Damages in Wisconsin by Professor James D. Ghiardi of the Marquette University Law School, published by Callaghan & Co., Vol. 1, No. 1, Wisconsin Continuing Education Series (1961), for a comprehensive listing and analysis of all Wisconsin cases in this category. The writer of this opinion is indebted to the author of the article for providing the backdrop or frame of reference, although conclusions reached by the writer are not necessarily those of the author.
22 Am. Jur. 2d, Damages, p. 823, sec. 237.
“Plaintiff is not entitled to punitive damages as a matter of right . . .” recommended instruction to jury in Haberman v. Gasser (1899), 104 Wis. 98, 80 N. W. 105, as quoted in Exemplary or Punitive Damages in Wisconsin by Professor James D. Ghiardi, supra, page 17.
For example, Christensen v. Schwartz (1929), 198 Wis. 222, 227, 222 N. W. 231, 223 N. W. 839.
Pickett v. Crook (1866), 20 Wis. 377 (*358); Meibus v. Dodge (1875), 38 Wis. 300.
Kink v. Combs (1965), 28 Wis. 2d 65, 79, 135 N. W. 2d 789.
22 Am. Jur. 2d, Damages, p. 324, sec. 237.
See The Crime of Punishment by Dr. Karl Menninger, New York, The Viking Press, 1966.
22 Am. Jur. 2d, Damages, p. 326, sec. 238, and cases cited therein at footnotes 19, 20 and 1.