* Headnotes 1. Damages, 17 C.J., Section 268; 2. Damages, 17 C.J., Section 389; 3. Appeal and Error, 4 C.J., Section 3013. This is an appeal from a judgment for one hundred dollars against the Southeastern Express Company as punitive damages awarded the appellee Thompson, for willful negligence in failing to notify appellee that the shipment of a compass from New Orleans, La., to Quitman, Miss., had arrived there for delivery to him.
No actual damages were claimed. We have examined the evidence in the record which tended to show that the negligence of the agent of the express company was willful, and, without setting out the testimony in detail, we think it is a very close question as to whether or not the facts justify the allowance of punitive damages. However, we have reached the conclusion that the evidence was sufficient to warrant the recovery of exemplary damages, and the judgment would be affirmed if it were not for an erroneous instruction granted the appellee, which is in the following form:
"The court instructs the jury for the plaintiff that if you believe from a preponderance of the evidence that the conduct of the employees, agents, or representatives in the matter of notifying plaintiff of the arrival of the shipment in question was such gross negligence as to amount to willfulness and wantonness and reckless, disregard of plaintiff's rights, and such conduct, if any there was, after notice of same, was ratified by the defendant, it will be your duty to find for the plaintiff in this case and assess the damages at such amount as will be reasonable punishment for such conduct, if any there was, on the part of the defendant's employees, agents, or representatives."
It will be observed the jury was told that "it will be your duty to find for the plaintiff in this case and assess the damages at such amount as will be reasonable punishment for such conduct."
The rule in this state is well settled that the imposition of punitive damages is a matter within the discretion of the jury. The jury may or may not award exemplary *Page 347 damages where the evidence justifies such infliction. N.O.,etc., R. Co. v. Burke, 53 Miss. 200, 24 Am. Rep. 689. The court in the case referred to seems to have indicated that where the proof is overwhelming in support of punitive damages, an instruction such as given in the instant case would not cause reversal; but the case before us is one where the proof is close as to whether or not punitime damages are recoverable. Therefore we think the lower court erred in granting the instruction complained of herein, and for the error the judgment is reversed and the case remanded.
Reversed and remanded.
ANDERSON, J., took no part in the decision of this case.