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District Court of Appeal, Third District, California.

WOLFSEN et al. v. HATHAWAY et al.

Civ. 7406; Sac. 5849.

Decided: December 15, 1947

Linneman & Burgess, of Dos Palos, for appellants. C. Ray Robinson, of Merced, for respondents.

The defendants W. L. Hathaway and Seth Cole have appealed from a judgment for damages which was rendered against them pursuant to the verdict of a jury, in a suit at law for the wrongful destruction of grass and grain which were growing on plaintiffs' leased land. The appellants claimed they held an oral agreement for a written lease of the farm, and that they were therefore legally authorized to disk and plow the land, which resulted in the damage complained of. On the theory that there was no evidence to support the existence of a valid alleged oral agreement, on motion the court instructed the jurors that plaintiffs were entitled to damages, the amount of which should be determined by them, and that the jury should determine whether plaintiffs were entitled to exemplary damages, and if so, should fix the amount thereof. The jury returned a verdict against appellants for compensatory damages in the sum of $15,410, together with exemplary damages against appellant W. L. Hathaway in the further sum of $15,000. The jury also returned a verdict to the effect that plaintiffs take nothing from the owners of the land, who were also named as codefendants. Judgment was accordingly rendered against the appellants for said amounts, from which this appeal was perfected.

The appellants contend that the court erred in instructing the jury that plaintiffs were entitled to damages in any sum whatever, and that the verdicts and judgment, which are based on the assumed invalidity of the alleged oral agreement, are not supported by the evidence. It is further asserted that the amount of compensatory damages is excessive, and that there is no evidence of actual malice to support the verdict or judgment for exemplary damages.

The defendants, Luis, May and Paula Fatjo and Lolita Fatjo Judge, own 1,740 acres of grazing and grain land in Merced County. January 17, 1946, they executed a written lease of said land to plaintiffs for a term of seven and a half months from March 15, 1946, for the cash rental of $7,500. Plaintiffs leased the land for the purpose of grazing cattle and harvesting the volunteer crop of grass and the grain. They took possession March 15, 1946. Appellants allege in their separate answer to the complaint, and claim that on December 15, 1945, said owners of the land, through their agent, C. J. McCullough, ‘entered into an oral agreement * * * to lease and demise and agreed to enter into a [subsequent] written lease for the purpose of leasing’ said land, for a term ‘to expire on the 30th day of June, 1947,’ in consideration of one-fourth of the crop of grain producecd, to be delivered to the lessors as rental therefor; that the written lease (which was not executed or delivered) ‘should contain substantially the same terms and conditions in addition to the foregoing terms and stipulations as were contained in a certain lease executed * * * under date of November 1, 1941, to one Thomas Hauschildt;’ that pursuant to said oral agreement they took immediate possession of the land and plowed and disked ‘approximately six hundred to seven hundred acres.’

McCullough was acting as agent for a real estate firm by the name of Coldwell, Banker & Company. The evidence is undisputed that no written lease was executed between the owners of the land and appellants. On January 8th and 9th the appellant, Cole, commenced disking the land, but ceased work on the last mentioned date on account of a breakdown of machinery. On January 18th, Coldwell, Banker & Company notified Hathaway that the land had been leased to other persons. In spite of that notice and after receipt of a telegram from McCullough on January 8th, saying, ‘Do not disk or plow until we communicate with you again,’ the appellants resumed their work and disked and plowed 670 acres of land. Mr. Hathaway admitted that he had notice on or before March 8th that appellants ‘had no lease on the property’ and that demand was made that they cease plowing and disking. Mr. Cole admitted that, in the latter part of February or the first of March the plaintiff, Henry Wolfsen, came to the field and told him plaintiffs had a lease on the property and that if he did not cease destroying the crops an order of court would be sought to stop the work. Cole admitted that an injunction was served on them March 7th to stop the work. Regardless of appellants' knowledge of plaintiffs' lease and of the notices to cease plowing or disking, and the fact that they would be unable to secure a lease, they proceeded to plow and disk some six hundred and seventy acres of the grazing and grain land. Substantially all the damage complained of by plaintiffs was done by appellants after such definite notices to cease working had been received.

The respondents contend that a judgment which was rendered in a former action between the owners of the land involved in this suit and these appellants, in which it was determined that Hathaway and Cole did not hold the oral lease claimed in this suit, nor the right to disk, plow or destroy the crops of grass or grain thereon, and in which an injunction was issued against them, is res judicata of those issues in this action. It is true that suit was filed March 7, 1946, in Merced County, by Luis Fatjo, et al., against these appellants, in which those identical issues were determined against Hathaway and Cole; that the defendants appealed that action to this court, and that the appeal was dismissed by this court March 26, 1947. It is also true that since appellants set up in their answer in this case their defense of destroying the grass and grain under an alleged oral lease of the property, and that plaintiffs therefore had no opportunity to plead res judicata, that plea was not a prerequisite to plaintiffs' right to tender proof of the former judgment as an estoppel against the attempt of appellants to again litigate the same issues. But our attention is called to no proof in this case of respondents' reliance upon the former judgment as res judicata. The evidence of Mr. Hathaway in the former action was referred to, but only for the purpose of impeachment. It has been uniformly held that, in the absence of either pleading or proof of a former judgment upon litigated issues, the defense of res judicata is thereby waived. Rideaux v. Torgrimson, 12 Cal.2d 633, 638, 86 P.2d 826; Domestic & Foreign Petroleum Co., Ltd., v. Long, 4 Cal.2d 547, 562, 51 P.2d 73; Spitzer v. Superior Court, 74 Cal.App. 494, 498, 241 P. 270; Madruga v. Borden Co., 63 Cal.App.2d 116, 123, 146 P.2d 273; 15 Cal.Jur. 208, sec. 230; 50 C.J.S., Judgments, § 822.

We are, however, of the opinion there is no substantial evidence in this case that appellants held a valid oral lease on said land, or that they destroyed the growing crops of grass and grain in good faith under such alleged lease. It follows that the court therefore properly instructed the jury that plaintiffs were entitled to judgment, leaving the amount of compensatory damages and the question of whether exemplary damages were allowable, to be determined by the jury. The purported oral agreement to lease the land was absolutely invalid and void, under subdivision 4 of Section 1624 of the Civil Code, since it purports to be ‘an agreement for the leasing for a longer period than one year.’ It was alleged to have been made December 15, 1945, ‘to expire on the 30th day of June, 1947.’ The statute provides that such an agreement is invalid unless the same, or some memorandum thereof, is in writing subscribed by the party to be charged or by his agent. No such memorandum was signed. It seems evident from a reading of the record that Mr. Hathaway had a conversation with McCullough, the agent of Coldwell, Banker & Company, in December, 1945, regarding a proposed lease of the premises. It had been formerly leased, in November, 1941, to Thomas Hauschildt, for five years. Hauschildt subsequently died. That conversation clearly indicates that Hathaway and McCullough contemplated a lease ‘along the line of the Hauschildt lease’, as Mr. Hathaway himself testified, upon terms to be thereafter agreed upon and executed between the owners of the land and these appellants. Mr. Hathaway testified in that regard:

‘Q. You understood then that this lease was to be signed by the owner of the property, didn't you? A. That is right. * * *

‘Q. You understood by that that he wanted a signed lease in order to complete the deal, isn't that right? A. Yes.’

It is true that McCullough prepared and sent to Hathaway a proposed written lease in January, 1946, for appellant's approval and signature. It was not signed by the owners. The prompt delivery of that proposed written lease by McCullough is convincing evidence that the parties did not rely on an oral agreement of lease, but contemplated only a written lease to be thereafter executed by the respective parties. McCullough had no authority as an agent of the owners or otherwise to orally lease the property or to agree upon the terms of a proposed written lease. He so testified. There is absolutely no evidence in the record that McCullough had or claimed any such authority. Hathaway knew that fact. He testified that McCullough told him ‘he was going to take the bull by the horns and go ahead with this arrangement with me on the property.’ That statement clearly inferred that McCullough had no authority to lease the property orally or otherwise. Moreover, Mr. Hathaway admitted that he read the proposed written lease which he received from McCullough and signed it, notwithstanding the fact that it contained some provisions with which he did not agree. Regarding those changes in the proposed lease, he said:

‘We had not arrived at all the details of the lease, the agreement was I believe I testified to in discussing this with Mr. McCullough over the phone, and he told me to go ahead and sign this lease and shoot it up to him, that he and I would get together on some of the details later. * * * I have had no conversation with Mr. McCullough since the phone call that I made.’

Mr. Hathaway admitted that he received a letter from the firm of Coldwell, Banker & Company, which McCullough represented, dated January 18th, notifying him that the property had been leased ‘to other persons for grazing purposes.’ Prior to that letter McCullough telegraphed Hathaway on January 8th not to disk or plow the land until he was communicated with. March 1st, Henry Wolfsen, one of the plaintiffs, saw the appellant, Cole, at the premises, and told him plaintiffs had leased the land, and warned him not to destroy the crops or a court order would be sought to restrain them. In effect, Cole refused to abandon the work, and told Wolfsen that he would take his orders only from his boss (Mr. Hathaway). That injunction was served on appellants on March 7th. The previous injunction suit resulted in a judgment against these appellants, determining that they held no oral lease on the premises and that they had no right to plow or disk the land or to destroy the crops. In spite of all such notices the appellants subsequently committed substantially all the damages complained of in this suit. We are satisfied there is no evidence in this case that appellants held an oral lease or that they were lawfully entitled to enter the premises and disk or plow the land and destroy the crops thereon. The court, therefore, properly instructed the jury to that effect.

The appellants contend that their alleged oral agreement to lease was not invalid under Section 1624 of the Civil Code, regardless of the fact that it was for a longer period than one year, for the reason that they entered the premises and performed some work in partial performance of the contract. Schubert v. Lowe, 193 Cal. 291, 223 P. 550; Manning v. Franklin, 81 Cal. 205, 22 P. 550; Cheney v. Newberry & Co., 67 Cal. 125, 7 P. 444. We think the foregoing cited cases are not in point. None of them involves, as the present action does, the wrongful entry of real property by defendants under an invalid oral agreement and the wilful destruction of growing crops thereon, after notice and knowledge of the invalidity of their claim, and of the fact that the land had been leased to other persons. In the Schubert case, supra, the owner of land brought suit in unlawful detainer against the defendant who had been occupying the land under a tenancy from month to month. The defendant filed a cross-complaint, alleging an oral agreement with plaintiff for a written lease upon specific terms. Plaintiff's demurrer to the cross-complaint was erroneously overruled for the reason that a cross-complaint in a suit for unlawful detainer is not permissible. Arnold v. Krigbaum, 169 Cal. 143, 146 P. 423, Ann.Cas.1916D, 370. Section 1170 of the Code of Civil Procedure limits the defendant's authorized pleadings in the Schubert action to an answer or demurrer. The court then granted a decree of specific performance against the plaintiff. The decree for specific performance was reversed on appeal. The court, however, did say that while the defendant was not entitled to specific performance of the agreemnt to execute a written lease [193 Cal. 291, 223 P. 552], ‘the part performance of such an agreement can be interposed as an equitable defense to the plaintiff's attempt to wrest from him the possession of the premises by the summary proceedings in unlawful detainer.’ (Italics added.) In that case it does not appear that the alleged oral agreement was for a lease for a longer period than one year. The present case is not a suit for unlawful detainer, nor for specific performance. It is a suit at law for damages for the wilful and wrongful destruction of growing crops. Certainly a defendant may not defend a suit at law for damages for wilful destruction of crops, by alleging an oral agreement which is invalid on its face and contrary to the statute of frauds, under the uncontradicted facts of this case.

Likewise, the case of Manning, supra, was a suit for unlawful detainer. Under an oral contract with the aged owner of real property, the defendant constructed a dwelling house thereon and paid one-half of the taxes and water charges, and care for plaintiff in her illness, as agreed, for a period of several years. The court properly held that such part performance and expenditure of money in permanent improvements and in payment of taxes and costs and care of plaintiff would result in wrongfully and fraudulently enriching plaintiff at the expense of the defendant, and that he was therefore entitled to retain possession of the premises according to their agreement [81 Cal. 205, 22 P. 550], ‘during the natural life of plaintiff.’ In the present case there was no issue regarding the undue enrichment or fraudulent procurement of benefits by either the owners or plaintiffs. That case is clearly distinguishable from this action on the facts.

So, also, the case of Cheney, supra, was a suit for unlawful detention of real property. It has no application to the principle of partial performance of an oral agreement to lease. The defendant held a written three-year lease of the premises for a stipulated rental per month. He held possession of the property and paid the rental as agreed. Several months after the execution of the lease the owner gave the defendant notice of rescission of the lease, and then commenced the action in unlawful detainer. But the owner continued to accept the rent when tendered, according to the terms of the lease. The trial court properly held that the defendant was entitled to possession under the terms of the written lease. That judgment was affirmed on appeal.

The doctrine which relieves a person of the usual application of the statute of frauds by partial performance is confined to equitable defenses. In the absence of a statutory provision to the contrary it does not apply to actions at law. Paul v. Layne & Bowler Corp., 9 Cal.2d 561, 565, 71 P.2d 817, 819; 1 Tiffany's Landlord and Tenant, 386, sec. 66d; 59 A.L.R. 1305, note. In the authority last cited, the caption to an elaborate note supported by numerous cases from many jurisdictions, including California, reads as follows:

‘It appears to be the general rule that the doctrine of part performance is purely an equitable doctrine, unrecognized at law, and accordingly will not sustain an action at law based on a contract within the Statute of Frauds.’

Section 1971 of the Code of Civil Procedure provides that no interest in real property, ‘other than for leases for a term not exceeding one year,’ can be created except by an instrument in writing signed by the grantor or his lawful agent authorized in writing. The following section, however, modifies that statute by providing that it shall not be construed ‘to abridge the power of any court to compel the specific performance of an agreement, in case of part performance thereof.’ (Italics added.) The statutes of California do not otherwise abridge or modify the mandatory provisions of Sections 1971 and 1973 of the Code of Civil Procedure or of Section 1624 of the Civil Code with respect to agreements affecting interests in real property. That fact reinforces our conclusion that the doctrine of part performance of an agreement within the statute of frauds does not apply to an action at law, although it may apply in an equitable suit to prevent fraud or undue enrichment of the owner of property who has acquiesced or induced one to take possession and expend money or to furnish labor under an invalid oral agreement. That distinction is clearly drawn in the late case of Paul, supra, in which the Supreme Court said:

‘It is necessarily conceded that an oral agreement to make a contract which must be in writing, is itself within the statute of frauds. * * *

‘To entitle the plaintiff to the relief [of specific performance] provided for by section 1972, the part performance must relate to the transaction involved, viz., the transfer of the interest in land which is the subject of the agreement. * * *

‘The facts alleged and stated show that the plaintiff could not present a case of fraud or unconscionable injury to support an estoppel under any statute or authority relied upon by him.

‘The intimation in the case of Martinez v. Yancy, 40 Cal.App. 503, 180 P. 945, relied on by the plaintiff, that there may be a remedy by an action for damages for the breach of an oral promise to make a lease for a longer period than one year, is inconsistent with the generally accepted doctrine that no right of action for damages exists for the breach of an invalid or unenforceable contract [citing authorities], * * * and should be disregarded.’

It will be observed that, in the present suit at law for damages resulting from appellants' unlawful and wilful destruction of growing crops, the answer of appellants does not plead specific performance nor ask for compensation for fraud or for services performed, nor does the proof indicate that those issues were presented at the trial. It follows from the pleadings and from the uncontradicted evidence in this suit at law that plaintiffs were entitled to some damages for the wilful and unlawful destruction of the crops, and that the court therefore properly so instructed the jury.

The appellants, for the first time on appeal, challenge the measure of damages adopted on the trial of this case. They now assert that the correct measure of damages for the wrongful destruction of crops of growing volunteer grass for grazing purpose, is the difference in the rental value of the land with and without the crops. That appears to be the approved rule. Miller & Lux, Inc. v. Pinelli, 84 Cal.App. 42, 257 P. 573; Maddalena v. LeDuc, 29 Cal.App.2d 211, 84 P.2d 254; 8 Cal.Jur. 819, sec. 76; 25 C.J.S., Damages, § 85b. Ordinarily, the measure of damages for the wrongful destruction of annually planted crops, as distinguished from perennial crops, such as volunteer grass for grazing purpose, is the market value thereof at the time of destruction, less the cost of maturing and marketing the crops. Dutra v. Cabral, 80 Cal.App.2d ——, 181 P.2d 26; Fay v. Cox, 45 Cal.App. 696, 188 P. 623; 25 C.J.S., Damages, § 85b. In the present case the destruction of both volunteer grass and grain was involved. The evidence shows that plaintiffs rented the land for feeding their stock upon both the volunteer grass and the stubble and uncut grain which remained on the premises. The evidence of the market value of the grass, less the cost of cutting and hauling it to market, was adduced without the objection of appellants. In fact, appellants cross examined witnesses on the theory that that was the correct measure of damages. In the case of Staub v. Muller, 7 Cal.2d 221, 60 P.2d 283, 286, in which evidence of the value of damaged alfalfa was established by showing the market value of the crop destroyed, as it was in the present case, and in which there was no evidence of the rental value of the land, the judgment was affirmed. In that case no damage to the freehold was proved. The Supreme Court said, ‘Appellant is in no position to complain at this late date of the lack of a specific finding with respect to the presence or absence of damage to the freehold.’ The distinction in the rule with respect to the measure of damages, between perennial crops, like alfalfa, and such crops as vegetables and grain, which require annual planting, was recognized and stated by the court in that case. After discussing the difficulty of applying a correct measure of damages to various crops under particular circumstances, and commenting upon the existence of some apparent conflict of authorities, the Supreme Court finally concluded that:

‘Notwithstanding the conflict of authorities and the difficulty of estimating damages in these cases, the decisions are in complete agreement upon one proposition, and that is, that ‘compensation for the real injury is the purpose of all remedies.’ [Citing authorities.] From the record in this case we cannot but conclude that the court, in fixing the damages, named an amount which, as nearly as it is possible to ascertain, will fairly compensate plaintiff for the actual injury suffered.'

In accordance with the preceding paramount issues with respect to the measure of damages, the jury was instructed in this case at the request of the appellants, as follows:

‘I instruct you that the measure of damages for the destruction of a growing crop is the value of the crop in the condition it was in at the time and place of destruction.

‘Compensatory damages are such damages as will reasonably compensate the person injured for the detriment suffered by him. In awarding compensatory damages, no jury has the right to award any amount in excess of such sum as will reasonably compensate for the damage actually sustained, but in this connection you are instructed that it is not the purpose of the law in permitting compensatory damages to permit any plaintiff to realize a profit by way of award of compensatory damages.’

It is true that the jury was further charged as follows:

‘You are instructed that in determining the amount of any damages to be awarded by you for any injury to or destruction of the crops involved in this action, if you find that there was any such injury or destruction, the measure or amount of such damages would be the difference between the value of such crops so injured or destroyed before and after such injury or destruction.’

We think the appellants were not prejudiced by the last quoted instruction. They offered no instruction in conflict therewith. The case was tried on the theory that was the proper measure of damages. The plaintiffs leased the land with the sole purpose of using the volunteer grass and grain thereon with which to feed their stock. They did not claim to have suffered any other damage to the freehold. It would seem to be true, under the circumstances of this case, that the result would be the same whether the jury considered the damages to be the value of the land with or without the growing crops, which were destroyed, or the market value of the damaged or destroyed crops. The appellants may not complain of the method of proving the amount which would compensate plaintiffs for their loss of crops, pursuant to Section 3333 of the Civil Code, since that evidence was admitted without objection and was the apparent theory of the measure of damages upon which the case was tried. The evidence adequately supports the amount of compensatory damages fixed by the jury.

A more serious question exists as to whether there is sufficient evidence to support the award of exemplary damages. The appellant Hathaway claims that the court erred in giving to the jury an instruction on examplary damages which failed to define the character of ‘actual malice’, as distinguished from mere legal malice, which would support an award of exemplary damages. At the request of plaintiffs, the jury was charged, in the exact quoted language of Section 3294 of the Civil Code, regarding the circumstances which would warrant the allowance of exemplary damages. The instruction complained of was approved in Fitzpatrick v. Clark, 26 Cal.App.2d 710, 80 P.2d 183, 184. It defined ‘malice’ which would support exemplary damages as that which would ‘import a wish to vex, annoy or injure another person.’ But that instruction also states that ‘if you further find from the evidence that the defendant W. L. Hathaway maliciously sought to vex, annoy, or injure the plaintiffs' (italics added), you are authorized to award a further amount as exemplary damages. And, at the appellants' request, the jury was charged that:

‘* * * I instruct you that you have no right to award exemplary damages unless the evidence clearly shows that the acts in question were committed maliciously or wantonly. Therefore, if you find in this case that the defendant, Hathaway, acted in good faith or under an honest claim of right, no exemplary damages can be awarded against him.’ (Italics added.)

We are unable to perceive how the jury could have been misled or prejudiced by the foregoing instructions. It was clearly told that exemplary damages could not be awarded unless the evidence proved to the jury's entire satisfaction that the crops were destroyed with a deliberate purpose, or intent to vex, annoy or injure plaintiffs. Moreover, to emphasize that limitation, the jury was further specifically instructed that it could not award exemplary damages if it found that Hathaway ‘acted in good faith or under an honest claim of right.’ We are of the opinion the instructions, read as a whole, clearly and properly informed the jury that nothing but proof of actual malice toward the plaintiffs would entitle it to award exemplary damages. In the case of Ross v. Sweeters, 119 Cal.App. 716, at page 724, 7 P.2d 334, the foregoing distinction is drawn between actual malice which will support exemplary damages, and mere legal malice which is insufficient for that purpose.

We find nothing in Davis v. Hearst, 160 Cal. 143, 116 P. 530, chiefly relied upon by appellant Hathaway in conflict with the foregoing definition of actual malice, supporting an award of exemplary damages. The language quoted by appellant from page 162 of 160 Cal., from page 539 of 116 of that opinion supports what we have previously said regarding the character of actual malice which must be shown by direct evidence or implied therefrom to support an award of exemplary damages. The court said:

‘It should be apparent that the malice, and the only malice, contemplated by section 3294 is malice in fact, and that the phrase ‘express or implied’ has reference only to the evidence by which that malice is established; ‘express malice’ thus meaning that the malice is established by express direct evidence going to prove the actual existence of the hatred and ill will; ‘implied malice’ referring to the indirect evidence from which the jury may infer the existence of this malice in fact. * * * But throughout the whole history of the law, whatever may be the mode of proving the existence of malice in fact, it is only upon some showing regarded by the law as adequate to establish the presence of malice in fact (that is, the motive and willingness to vex, harass, annoy, or injure) that punitive damages have ever been awarded. * * * ‘It is the wrongful personal intention to injure that calls forth the penalty.’' (Italics added.)

In this case the jury was told that exemplary damages could not be awarded unless it was clearly shown that the crops were destroyed with a desire, wish or intent to vex, annoy or injure the plaintiffs; that such punitive damages should not be allowed unless it was proved that Hathaway ‘maliciously sought to vex, annoy, or injure the plaintiffs' that such damages could not be awarded if the jury believed that Hathaway ‘acted in good faith or under an honest claim of right.’ We think these instructions are not prejudicial or erroneous. Punitive damages were awarded against Hathaway only.

But the appellant Hathaway asserts that the evidence conclusively shows that the property was disked, plowed and the crops were destroyed in good faith, under an oral agreement for a future written lease. It was the sole province of the jury to determine from the evidence the motive with which the crops were destroyed. The evidence is uncontradicted that some six hundred acres of crops were destroyed after appellants had full knowledge and notice that the alleged oral agreement was invalid and that they therefore had no right to do so, and after they knew that the land had been formally leased to plaintiffs. There is much evidence from which the jury was warranted in assuming that the crops were destroyed by appellants through enmity and ill will on the part of Hathaway, to vex, annoy and injure plaintiffs. We think the evidence is adequate to support the implied finding of the jury that the crops were destroyed with the intent on the part of appellant Hathaway to vex, annoy and injure the plaintiffs.

A reviewing court may not interfere with the amount of exemplary damages awarded by a jury unless the sum is so excessive as to shock the conscience, or if, in view of all the facts and circumstances disclosed by the record, it appears that an award of exemplary damages is not warranted. Primarily, it is the sole province of the jury to fix the amount of punitive damages, in a proper case, although its discretion may not be arbitrarily exercised. Clark v. McClurg, 215 Cal. 279, 9 P.2d 505, 81 A.L.R. 908; Wilkinson v. Singh, 93 Cal.App. 337, 269 P. 705; Boyes v. Evans, 14 Cal.App.2d 472, 58 P.2d 922; Booth v. People's Finance & Thrift Co., 124 Cal.App. 131, 12 P.2d 50; 82 Cal.Jur. 866, sec. 109; 25 C.J.S., Damages, § 126a. In determining whether the award of exemplary damages is the result of passion or prejudice, it is proper to take into consideration the amount of compensatory damages allowed, together with all of the facts and circumstances attending the unlawful acts complained of which may indicate the motive, intent or malice with which they were performed. Extreme acts of deliberate, wilful intent to brutally commit bodily harm or to ruthlessly and seriously injure the property of another, prompted by mere vindictiveness and ill will, may warrant the imposing of substantial punitive damages. We do not mean to infer that appellant Hathaway was guilty of such aggravated conduct. Punitive damages are awarded as punishment for wilful, intentional and unjustifiable conduct. There is no absolute rule determining the amount, or even the relative magnitude of exemplary damages which may be awarded under all circumstances. That is left to the sound discretion of the trial judge or jury. In 25 C.J.S., Damages, § 126, it is said with relation to the circumstances which may properly be considered by a jury in awarding punitive damages, that:

‘* * * Particular matters which are to be considered are the nature of the case at bar, the nature or character of the act, the malice or wantonness of the act, the motive for the act, the manner in which it was committed, the injury intended or likely to result from a disregard of duty, the character and extent of the injury.’

In some cases, reviewing courts have modified the amounts of punitive damages which have been awarded, for the evident reason that they clearly appeared to be out of all reasonable proportion and in conflict with the gravities and nature of the acts performed. Wilkinson v. Singh, supra; Booth v. People's Finance & Thrift Co., supra; Plotnik v. Rosenberg, 55 Cal.App. 408, 203 P. 438. But many such awards have been sustained on appeal, even though the punitive damages allowed were equal to or approximate the amounts allowed for compensatory damages. Clark v. McClurg, supra.

In spite of the fact that the present case does not appear to be an extremely aggravated one, we are impelled to hold that this court may not interfere with the amount of exemplary damages which was awarded by the jury.

The judgment is affirmed.

THOMPSON, Justice.

ADAMS, P. J., and PEEK, J., concur.

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