shingle roof building, situate on the north side of Main street, east of Center avenue in Garfield, Chaffee county, Colorado."

The goods were destroyed by fire October 30, 1883. Several defenses are set up in the answer.

1st. That the loss was caused not by fire but by an explosion of some kind for which the defendant is not liable by the terms of the policy. This defense is not supported by the evidence.

2nd. That a clause of the policy prohibited the keeping of gun powder, giant powder or nitro-glycerine in the premises where the goods were kept; "and defendant alleges that the plaintiffs, at the time of the alleged damage, and for a long time prior, had deposited and stored on said premises, and in said building, where the stock of goods insured was, large quantities of gunpowder, giant powder and nitro-glycerine-that is to say, one thousand pounds of eachwithout any consent of the defendant so to do expressed in the body of the policy, and without the knowledge and against the consent of the defendant."

On this point the evidence shows that a one-story building on an adjoining lot, and some three or four feet from that mentioned in the policy, was used by plaintiffs as a store-house. A covered way connected the two buildings at some point towards the rear; goods were taken into the store-house and put out, at times, through front doors which opened on the street; but in general, the store-house was used only in connection with the building mentioned in the policy, through the passage way at the rear.

Of the existence and use by plaintiffs of the building as a store-house, its situation, and connection with the main building, in which plaintiffs' business was carried on, defendant's agent had notice at and before the time of issuing the policy; but whether the agent also had notice that giant powder or dynamite was kept in the store-house is not clear. That substance was kept in the building open to view, and defendant's agent was in the room; nothing was said about it, and it may be going too far to assume that he saw it and knew what it was. However that may be, it is clear that the store-house was not any part of the premises covered by this policy or within the prohibition of the policy as to keeping explosive substances. The prohibitory clause reads as follows: "Gunpowder, fireworks, nitro-glycerine, phosphorus, naphtha, benzole, benzine, benzine varnish, camphine, spirit gas, gasoline, phosgene or burning fluid, or any similar inflammable fluid, are positively prohibited from being deposited, stored, kept or used in any building on which, or on the contents of which, there is any insurance under this policy, unless by special consent expressed in the body of the policy, naming each article specifically-otherwise, the insurance by this policy shall be void."

It refers only to the building in which the goods were stored on which insurance was given and does not in any way refer to the store-house or anything in it. In this clause plaintiffs were not limited in the use of the store-house or any other building, excepting

that in which the goods covered by the policy were kept. Therefore the defense that such articles were kept in the premises mentioned in the policy is not made out.

3rd. Another clause of the policy on which defendant relies, is as follows: "And if the assured shall, in such application, survey or plan, or in any statement or description, written or oral, make any misrepresentation as to the character, condition, situation, value, or ownership of said property, or as to the occupancy of the premises or the exposures thereto, or any other misrepresentation whatever, or fail to make known every fact material to the risk, including the amount of incumbrance on said property, if any, this policy shall be void. The procuring of insurance on said property for more than its cash value; or the having of other insurance thereon, or any part thereof, valid or invalid, prior or subsequent, not made known to this company and consented to hereon; or any change increasing the hazard, either within the premises or adjacent thereto, within the control of, or known to the assured, and not reported to this company, and agreed to by entry in due form in the body thereof-will render this policy null and void." It is alleged that plaintiffs kept and stored" in the same building and on the same premises with the stock of goods insured," gunpowder, giant power and nitro-glycerine, in violation of this clause. As has been stated already, the giant powder was in the storehouse and not as alleged, in the same building and on the same premises with the stock of goods insured." Therefore that defense is not made out.

4th. Referring to that part of the clause last mentioned which forbids any change increasing the hazard, it is averred that plaintiffs "did make a change increasing the hazard within the premises and building in which was the stock of goods insured in said policy, by depositing and storing large quantities of giant powder and nitroglycerine on said premises and in said building after the issuance of said policy." This is answered by the statement already made that the giant powder was not kept "on said premises or in said building" as averred.

These matters are repeated in an amendment which adds nothing to what has been stated. In all the defenses, it is alleged that the giant powder was kept in or on the premises described in the policy, which, if true, would bar the action. But the fact is not as alleged; as fully explained, the prohibited article was kept not in or upon, but very near to the premises described in the policy.

The real question suggested by the evidence is whether the fact that giant powder was kept in the storehouse adjacent to the building mentioned in the policy, was material to the risk and therefore a matter of which plaintiffs were bound to notify defendant at the time of application for the policy.

That is a question which can be raised by answer only, and when thus presented is to be decided by the jury: Capacia v. Phoenix Ins. Co., 28 Cal., 628.

If it appeared to be wholly decisive of the case, perhaps the defendant would be allowed, even at this late day, to amend its pleadings in a way to avail of the defense. But the circumstances disclosed by the evidence, although suggestive of doubt, are by no means conclusive as to the fact. The warehouse was in use at the time application was made for the policy and defendant had knowledge of it; giant powder is an article usually kept in stores in mining towns, and it was a fair inference that plaintiffs were dealing in it. To store or keep it with the goods insured was forbidden, but nothing was said as to keeping it in the warehouse or elsewhere without the main building.

As the dangerous compound was excluded from the building mentioned in the policy, it is not quite reasonable to go beyond the language of the contract and say that plaintiffs were also forbidden to keep it in another place.

If more was intended than is stated in the policy, why was it omitted from that instrument? To have prohibited the storage in the warehouse of any of the articles referred to as hazardous, would have been easy enough, and the failure to do so, gives support to the argument that it was not intended. But the question is not presented in the record, and, therefore, not open to consideration except upon the matter of amendment. I am of the opinion that the defense to the action is not sustained, and judgment will be for plaintiffs.

SUPREME COURT OF COLORADO.
MURPHY v. HOBBS.

Filed November 18, 1884.

MALICIOUS PROSECUTION-MEASURE OF DAMAGES-DAMAGES AS PUNISHMENT.-Damages in an action for malicious prosecution are limited to such an amount as will compensate the plaintiff for his pecuniary loss, for injury to his person, and for his mental and physical suffering. Damages as a punishment to the defendant are not allowable.

THE SAME ACTUAL AND IMPLIED MALICE-PROBABLE CAUSE-WANT OF.-In such action malice may be implied from a want of probable cause. Probable cause is such a state of facts known to and influencing the prosecutor, as would lead a man of ordinary caution and prudence, acting conscientiously, impartially, reasonably, and without prejudice, upon facts within his knowledge, to believe or entertain an honest and strong suspicion that the person accused is guilty. If probable cause for the arrest exists, the prosecutor is not liable, although he may have been influenced by improper motives. If a want of probable cause appears, evidence of the acts and conduct of the prosecutor, showing actual malice, is admissible, for the purpose of enhancing the compensatory damages.

APPEAL from a judgment of the district court for Weld county. The opinion states the facts.

William B. Mills, for the appellant.

Haynes, Dunning & Haynes, for the appellee.

HELM, J. This is a civil action brought to recover damages for malicious prosecution and false imprisonment. Plaintiff procured a verdict, and judgment was duly entered thereon. Defendant pros

ecutes this appeal and assigns in support thereof numerous errors. The most important of these assignments is one which relates to the measure of damages adopted in the court below. Upon this subject the following instruction was there given: "That the measure of damages in an action for malicious prosecution is not confined alone to actual, pecuniary loss sustained by reason thereof; but if it is believed, from the evidence, that the arrest and imprisonment stated in the complaint were without probable cause, then the jury may award damages to plaintiff to indemnify him for the peril occasioned to him in regard to personal liberty, feelings and reputation, and as a punishment to defendant in such further sum as they shall deem just." By the assignment of error and argument challenging the correctness of this instruction, we are called upon to consider the following question, viz: Can damages as a punishment be recovered in cases like this?

The rule allowing, under certain circumstances in civil actions based upon torts, exemplary, punitive or vindictive damages, for the purpose of punishing the defendant, has taken deep root in law. It has the sanction of learned courts and law writers, among the latter, Mr. Sedgwick; and its abrogation should be favored only upon the most weighty considerations. But we find denying its correctness, Professor Greenleaf and several writers of the highest respectability.

As we shall presently see, the question is not conclusively res judicata in Colorado. We, therefore, feel at liberty to inquire into the reasons urged against the doctrine. Were this subject now presented to the various courts of the country, for the first time, we have little doubt as to what the verdict would be: the propriety of adhering exclusively to the rule of compensation appears, upon careful investigation, with striking clearness. But many of the courts, like that of Wisconsin, while expressing strong disapprobation of the doctrine "inherited," and declaring it "a sin against sound judicial principle," feel constrained to preserve it, on account of precedent in their respective states, and the "current of authority elsewhere": Brown v. Swinefield, 44 Wis., 282.

Perhaps the most impressive objection to allowing damages as a punishment in cases like the one at bar is that which relates to dual prosecutions for a single tort. Our state constitution declares that no one shall be twice put in jeopardy for the same offense. A second criminal prosecution for the same act after acquittal, or conviction and punishment therefor, is something which no English or American lawyer would defend for a moment. But here is an instance where practically, this wrong is inflicted. The fine awarded as a punishment in the civil action does not prevent indictment and prosecution in a criminal court. On the other hand it has been held, that evidence of punishment in a criminal suit is not admissible even in mitigation of exemplary damages in a civil action: Cook v. Ellis, 6 Hill, 466; Edwards v. Leavitt, 46 Vt., 126.

Courts attempt to explain away the apparent conflict with the constitutional inhibition above mentioned; they say that the language there used refers exclusively to criminal procedure and cannot include civil actions: Brown v. Swinefield, supra. But this position amounts to a complete surrender of the evident spirit and intent of that instrument. When the convention framed, and when the people adopted the constitution, both understood the purpose of this clause to be the prevention of double prosecutions for the same offense. Yet under the rule allowing exemplary damages, not only may two prosecutions, but also two convictions and punishments be had. What difference does it make to the accused, so far as this question is concerned, that one prosecution takes the form of a civil action in which he is called defendant. He is practically harassed with two prosecutions and subjected to two convictions. While no hypothesis, however ingenious, can cloud in his mind the palpable fact that for the same tort, he suffers two punishments.

An effort has been made to mitigate the undeniable hardship and injustice by declaring that juries in the second prosecution, whether it be civil or criminal in form, may consider the punishment already inflicted.

But both reason and authority conclusively show that this proposition is illusory; that the application of such a rule is impracticable; and that the attempt to apply it, while producing confusion, would not effectively accomplish the purpose intended.

A second weighty objection to the rule under discussion relates to procedure. It is doubtful if another instance can be found within the whole range of English or American jurisprudence where the distinctions between civil and criminal procedure are so completely ignored. Plaintiff sues for damages arising from the injury done to himself. His complaint or declaration is framed with a view to compensation for a purely private wrong; it need not be under oath, and does not inform defendant that he is to be tried for a public offense. The summons makes no mention of punishment; it simply commands defendant to appear and answer in damages for the private injury inflicted upon plaintiff. When the cause is called for trial, no issue upon a public criminal charge is fairly presented by the pleadings.

A trial and conviction are had, and punishment by fine is inflicted, without indictment or sworn information.

The rules of evidence peculiarly applicable in criminal prosecutions are rejected.

The doctrine of reasonable doubt is replaced by the rule controling in civil actions, and a mere preponderance in the weight of testimony warrants conviction; defendant is compelled to testify against himself, and such forced testimony may produce the verdict under which he is punished; depositions may be read against him, and thus the right of meeting adverse witnesses face to face, be denied.

No. 51-2.