dissenting:
I respectfully dissent from the majority opinion only as to the punitive damages awarded in the judgment of the Circuit Court of McDowell County and affirmed by the majority of the Court.
The complaint alleges that the defendant wantonly, wilfully, recklessly and illegally caused the issuance of a suggestee execution by a McDowell County justice of the peace. The evidence indicates that the defendant, upon being advised by the Stevens Clinic Hospital that the debt had been paid by the plaintiff, called the justice of the peace and told him that the amount due and owing to the Clinic had been paid and its files closed. Notwithstanding this information, the justice of the peace, without consulting the defendant, issued the suggestee execution upon a purported judgment which had no relation to the amount the plaintiff owed to the Stevens Clinic Hospital. This suggestee execution was served on the plaintiff’s employer who withheld certain monies from his wages. The plaintiff protested to the justice of the peace with regard to the withholding of his wages, *604and when the justice of the peace called the defendant, the defendant reminded him that he had advised him that the amount owed by the plaintiff had been paid. The money withheld was refunded to the plaintiff. The justice of the peace died and this action was instituted against the defendant. If punitive damages are warranted in this case, they are not warranted against the defendant. They could be awarded only against the justice of the peace.
The defendant did not cause the issuance of the suggestee execution. In fact, his action advising the justice of the peace that the debt had been paid would be an attempt to prevent the issuance of the suggestee execution. In order to sustain a claim for punitive damages the wrongful act must have been done maliciously, wantonly, mischievously or with criminal indifference to civil obligations. Jopling v. Bluefield Water Works & Improvement Co., 70 W.Va. 670, 74 S.E. 943; Commonwealth Tire Company v. Tri-State Tire Company, 156 W.Va. 351, 193 S.E.2d 544. There is no evidence that the defendant maliciously or wantonly caused the suggestee execution to be issued in the instant case, and certainly he did not act with criminal indifference to civil obligations. He specifically acted to prevent the issuance of a suggestee execution.
It has been held that where a distress warrant was wrongfully sued out there is no liability for punitive damages in the absence of fraud, malice or other aggravating circumstances. Darnell v. Wilmoth, 69 W.Va. 704, 72 S.E. 1023.
The evidence must establish malice or intentional wrongdoing before punitive damages are warranted. Commonwealth Tire Company v. Tri-State Tire Company, supra.
Chapter 50, Article -13, Section 13 of the Code of West Virginia, 1931, referred to in the majority opinion as not having been complied with, does not pertain to the execution involved in this case and issued by the justice *605of the peace. The suggestee execution, attaching the wages of the plaintiff, was issued under the provisions of Code, 38-5A-1 et seq., as amended, without the request of the defendant or the Stevens Clinic Hospital for the issuance of a regular execution, which is required to be done before a suggestee execution attaching wages can be issued. Then, too, no affidavit was filed by the defendant as required by Code, 38-5A-3, as amended, before the suggestee execution involved here should issue.
The institution of the action in the court of the justice of the peace and the issuing of the suggestee execution by the justice of the peace without authority or request of the defendant are two separate and distinct acts. The defendant cannot be subjected to punitive damages for the unauthorized acts of the justice of the peace.
It is crystal clear that the justice of the peace was solely responsible for the improper withholding of plaintiff’s wages and there was no participation on the part of the defendant.
It is admitted in the majority opinion that plaintiff’s instruction number 4 given by the court is inconsistent with defendant’s instruction number 2 given by the court dealing with punitive damages. It has been held that the giving of inconsistent instructions constitutes reversible error even though one of them is a correct statement of the law. State Road Commission v. Darrah, 151 W.Va. 509, 153 S.E.2d 408; West Virginia Department of Highways v. Bartlett, 156 W.Va. 431, 194 S.E.2d 383.
For the reasons stated in this dissent, I would reverse the judgment of the Circuit Court of McDowell County pertaining to punitive damages.