Baxter v. Campbell

Citations

• 17 S.D. 475
• 97 N.W. 386
• 1903 S.D. LEXIS 79

Syllabus

<p>1. In an action against a physician for negligence, although the testimony is conflicting on all-material points, it must be assumed on appeal, that every allegation of negligence and want of skill stands proved by the verdict for plaintiff.</p> <p>2. In order to justify an imputation of malice, so as to authorize punitive damages, the ipjury must have been wrongfully and intentionally done, in a spirit of mischief, and partake of a criminal nature; and Rev; Civ. Code §2292, provid.es for exemplary damages only “when defendant has been guilty of oppression, fraud, or malice, actual or presumed.”</p> <p>3. In an action against a surgeon for malpractice, where compensatory damages alone were claimed, and there was no evidence from which malice on the part of the defendant could be presumed, it was error to instruct that the jury might award punitive damages,</p>