
    Augusta F. Snyder, Respondent, v. Robert C. Maxwell, Defendant, Impleaded with Leroy S. Mackey, Appellant.
    Third Department,
    May 4, 1910.
    Master and servant — malicious act of servant — punitive damages — evidence — servant’s admissions.
    Punitive damages cannot be recovered from a master for the malicious and wanton acts of his servant to which he was not a party and for which he was not responsible.
    In such an action brought against both.the servant and the master it is error to admit in evidence generally against the objection of the master admissions made by the servant tending to show, not only that his acts were wrong but that they were malicious and dictated by the master, arid to deny a motion to strike out the evidence.
    Appeal by the defendant, Leroy S. Mackey, from a judgment of the Supreme Court in favor of the plaintiff entered in the office of the clerk of the county of Delaware on the 17tli day of -May, 1909, upon the verdict of a jury for $875, and also from an order entered in said clerk’s office on the 4tli day of August, 1909, denying the said defendant’s motion for a new trial made upon the minutes.
    
      E„ A. Mackey \_G. L. Andrus of counsel], for the appellant.
    
      Marvin & Hanford [Z. F. Ba/ymond and E. H. Hanford oí counsel], for the respondent.
   Kellogg, J.:

The defendant Maxwell was in the employ of his codefendant Mackey, and while engaged in such service attempted to enter, the premises where the plaintiff resided, but where the defendant Mackey.claimed the right to work. She resisted the entry, and lie attempted to enter with force and injured her, for which this recovéry was had. The defendant Mackey was not present, and it does not clearly appear that he was responsible for the attempt by Maxwell to enter the premises with force.

The damages are excessive. The charge of the judge. with reference to punitive damages may well have been understood by-the jury to permit punitive damages against Mackey for the malicious and wanton acts of Maxwell, although Mackey was not a party to or responsible for the particular acts which made the assault malicious and wanton. The words used were : “ Yon have a right, if you find that the defendants or either of them against whom you find a verdict, acted maliciously or wantonly, or with a wanton disregard of the plaintiff’s rights — you have a right to add to this compensatory damage what the law denominates punitive damages, and punitive damages, as the name indicated, are damages by way of punishment —first, a punishment to the defendant for the act which he has committed, and secondly, as a deterrent to others to prevent other- people from doing similar acts. But this punitive damage, as .1 have, already said to you, cannot be imposed unless you find that.there was malice on the part of the defendant, or wanton disregard of the plaintiff’s rights.” The defendants, excepted to the charge with reference to punitive damages as against the defendant Mackey in any event, and asked the charge that upon the facts disclosed the defendant Mackey would not be liable for punitive damages, which was declined and he excepted. ' .

Several admissions made by Maxwell were offered tending to show not only that his acts were wrong, but that they were malicious and dictated by Mackey. This was objected to by Mackey as not evidence against him, but was received generally. ■ Mear the close • of the case, after several questions had been answered, in ruling upon the samé question the court overruled the .objection and received the evidence, saying, in substance, that the admissions of Maxwell were not evidence against Mackey, and that the jury when they come to consider the question will not consider such evidence against him. Immediately after a similar question was asked, the same objection was made and overruled and the evidence received. This evidence had been received generally against both defendants, and after this ruling was again received, apparently for' the same purpose. The jury was not sufficiently instructed to disregard this evidence as against Mackey and the large amount of the verdict can only properly be explained by the fact that the jury did not understand the true rule to be applied against Mackey as to punitive damages, and that they failed to disregard the loose declarations made by Maxwell. The declarations of Maxwell that what he did “ was under old Mackey’s orders ” was received over Mackey’s objection as not evidence against him, and after it was received he moved to strike the answer out for the same reason, which was denied. This ruling was clearly prejudicial error.

The judgment and order should, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred; Houghton, J., in result.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  