I dissent. Actionable malice is not shown and in its absence exemplary damages are not justified. *Page 423
If one party believes another is infringing upon his rights to his injury, a decent regard for fairness and justice requires that the offending party be given notice and an opportunity to make amends. No knowledge or advice is shown by the record to have been conveyed to the defendant that he was injuring the plaintiff in any manner. V. Truzzolino testified that he saw the advertisement relative to his tamales in defendant's show window more than once but just laughed and said nothing by way of remonstrance to defendant. In the circumstances as shown, it appears to me that defendant might well have been in ignorance of the alleged injury. He testified that he had "gone broke" and has assigned his property for the benefit of creditors. Prior to such failure he had been engaged in the restaurant and tamale business, the making of tamales usually being left to his nephew, and, in some instances, the nephew delivered tamales to customers in the city of Butte. After assigning his property as mentioned, V. Truzzolino engaged in the production of tamales to some extent at his home, and later organized the plaintiff corporation. About that time the nephew went into the tamale business for himself and the defendant became a regular customer of the nephew. In the absence of any complaint on the part of the plaintiff it appears not unreasonable to assume that the defendant may have believed that in buying the nephew's product it was getting the same kind of tamales it had acquired from the plaintiff, when the nephew was plaintiff's foreman. In other words, it appears to me that any injury suffered by the plaintiff from the acts of the defendant was rather from oversight than from malice or wilfulness, and exemplary damages, as a rule must be based upon some act or acts that involve malice or a similar element.
The rule, I think, is well expressed in section 132 of 8 R.C.L., where it is said: "While every legal wrong entitles the party injured to recover damages sufficient to compensate for the injury inflicted, not every legal wrong entitles the injured party to recover exemplary damages. To warrant the allowance of such damages the act complained of must not only be unlawful, *Page 424 but it must also partake somewhat of a criminal or wanton nature. And so it is an almost universally recognized rule that such damages may be recovered in cases, and in only such cases, where the wrongful act complained of is characterized by some such circumstances of aggravation as wilfulness, wantonness, malice, oppression, brutality, insult, recklessness, gross negligence, or gross fraud on the part of the defendant."
It was said in Wray v. Great Falls Paper Co., 72 Mont. 461,234 P. 486, 487: "Malice, like envy, love, or hate, is a concept of the mind, a term understood generally but one which practically defies definition. Our Codes do not, in terms at least, recognize any different kinds, grades, or degrees of malice; but they do recognize malice itself, and declare that the terms imports `a wish to vex, annoy, or injure another person, or an intent to do a wrongful act,' and that the existence of malice may be `established either by proof or presumption of law.' (Sec. 10713, Rev. Codes.) In other words, this statute deals with the characteristics of malice and the different means by which the existence of malice may be established; but, when once established, the result is the existence of, not malice in law, nor malice in fact, but of just malice.
"Generally, the existence of malice must be established by evidence, direct or circumstantial, but there are exceptions to the rule; for example, in the law of criminal libel `an injurious publication is presumed to have been malicious if no justifiable motive for making it is shown.' (Section 10991, Rev. Codes.) And again, `a malicious and guilty intent' is presumed `from the deliberate commission of an unlawful act, for the purpose of injuring another,' and this presumption is made conclusive. (Sec. 10605.)"
The testimony throughout is in sharp conflict as to what was represented to parties who obtained tamales at the defendant's luncheonette. There is testimony to the effect that a party called for and purchased a small assortment of tamales and the purchase slip made out by the clerk did not specify the kind of tamales, whereupon the purchaser requested that the name *Page 425 "Truzzolino" tamales be entered on the slip, and he was advised that they were not Truzzolino tamales, but at the purchaser's request the name was inserted for the reason, as it was stated, that he desired to present them to another party and such other party did not care for any other kind. This testimony, it appears, was given weight in determining that the defendant wilfully injured the plaintiff. I think any such representations of that nature made by an employee of the defendant company were outside of the scope of the employee's business and not binding upon the defendant.
Cooley on Torts, in Volume III, fourth edition, section 393, says: "But the liability of the master for intentional acts which constitute legal wrong can only arise when that which is done is within the real or apparent scope of the master's business. It does not arise where the servant has stepped aside from his employment to commit a tort which the master neither directed in fact, nor could be supposed, from the nature of his employment, to have authorized or expected the servant to do."
The judgment should be reversed and the cause remanded with instruction to eliminate the amount allowed for exemplary damages.