
    Jennie E. Noonan, Respondent, v. Thomas C. Luther, Appellant.
    Third Department,
    May 24, 1907.
    Assault and battery —culpable negligence defined — erroneous charge as to right to punitive damages.
    “ Culpablé negligence ” does not imply malice or recklessness or anything further than a failure, to exercise the care which reasonable prudence would suggest. . ■
    Hence, in an action for assault wherein the defendant is alleged to have ejected a servant from his hotel, from which she refused to depart unless paid more wages, it is error to charge that the jury may give punitive damages if the defendant was guilty of culpable negligence. This because punitive damages are only recoverable in such action if the conduct of the defendant is so gross as to. raise, the.presumption of a conscious indifference* to consequences, or a wanton disregard of the rights of others.
    Appeal by the defendant, 'Thomas O. Luther, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 22d day. of October, 1906, upon the 'verdict of a jury, and also from an order entered in . said clerk’s office on'the 16th day of November, 1906, denying' the defendant’s motion for a new trial made upon the minutes.
    The action is brought for assault claimed to have been committed upon the plaintiff by the defendant on the 13tli day . of August, 1906. The defendant was keeping a summer hotel on Saratoga lake. The plaintiff, through an employment, agency at Albany, went there and hired out as a chambermaid. . She became dissatisfied with the place and before a week was up gave notice that she desired to leave. There was some dispute between the plaintiff and defendant as to the amount of money that was owing the plaintiff. A discussion'followed, and the plaintiff was removed from the* hotel by the defendant by force. For this assault the action is brought, ánd the jury have assessed the plaintiff’s damages at $500. From the judgment entered upon the verdict of the jury and from an order denying a motion for a new trial defendant here appeals.
    
      Hash Hockwood, for the appellant.
    
      John L. Henning, for the respondent. -
   Per Curiam :

Whether the defendant had a right in any event to remove the plaintiff from his premises by force and whether, .if that right existed, he' used more force than was necessary for that purpose, were the two questions submitted by the learned trial judge to the' jury. Defendant’s contention was that a difference arose between him and the plaintiff as to the amount of money that was owing to her; that the plaintiff began in an excited way to say, “ I want my money, I want my money,” and to cause disturbance before his .guests ; that he warned her to desist and leave the premises, which she refused to do, and that he thereupon ejected her, using only such force as was necessary. The plaintiff’s claim, on the other i. hand, is that upon her insisting that she Was entitled to more money than he was willing to admit, he forcibly and without warning took hold of her and ejected her. from the premises.

The learned trial judge, in charging the jury, submitted to them the question of compensatory damages, and then added: “If you. come to the conclusion, that the assault was wanton, malicious and attended with insult or was oppressive to her, or there were circumstances that aggravated the assault, or if he was guilty of culpable negligence in it, then you may apply to him a further element .of damage, smart money as it is called, such as in your judgment you • think a man ought to pay for' doing such a wrong.”

In volume 2 of Words and Phrases Judicially Defined (at p. 1780) it is said : “ Culpable negligence ’ is the omission to do something which a reasonable, prudent and honest man would do, or the doing of something which such a man would not do, under the circumstances surrounding the particular case.”. Other definitions are there'given, but, we find no definition of culpable negligence which implies any malice or recklessness, or anything further than a failure to- exercise the care which a reasonable prudence would . suggest.

In volume 6 of Thompson’s Commentaries-on the Law of Eegli- - gence (2d ed. at § 7167) it is said: “Willful and wanton conduct justifying the award of exemplary damages may occur where the conduct is so gross as to' raise the presumption of a conscious indifference to consequences, or a wanton disregard of the rights of others. ■ * * * It is only where this reckless disregard of the rights of others and conscipus 'indifference to consequences are shown that it properly can be said that exemplary damages aró recoverable.”

Under these authorities the jury was improperly allowed to award exemplary damages for a merely negligent exercise of a right to eject the plaintiff from the hotel after she had refused to go upon the defendant’s command.

The’judgment and order should be reversed and new trial granted, with costs to appellant to abide event. . ■

All concurred.

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