MELENDEZ v- UNION OIL CO.

malice and fraud and whether circumstances connected with the breach amount to tort, and thee allegation that the defendant broke the contract wilfully. fraudulently an with malice, is not of itself sufficient."
In Cameron v. Bryan, 89 Iowa, 214, it is held that exemplary damages cannot be recovered by a tenant for his wrongful dispossession of the leased premises, or in an action tor personal injuries unless malice is alleged. There is a long line of decisions sustaining this view. Indeed, it is the only reasonable view that can be taken of the subject.
It is not denied that the Union Oil Company laid the pipeline complained of, on the right of way of the Panama Railroad Company, and did this with the knowledge, consent, and at the instance of that company. This was found by the court and not objected to by either party. There is, again, no question but what defendant company had a charter to lay their pipe-line from La Boca to Cristobal and that their intention in so doing was to furnish oil to the Panama^ Railroad Company and the Isthmian Canal Commission, and, in addition, do a commercial business, and that their work on the pipe-line was dQne in good faith.
To justify punitive damages t here must be: First, malice, wantonness or oppression; second, fraud; or third, gross negligence or recklessness before punitive or exemplary damages can be considered. In Vol. 13, of the Cyclopedia of Law and Procedure on page 108, we find the following:
"Unless there is some element of malice or gross negligence, or circumstances of aggravation, the measure of damages is the measure of compensation for loss sustained, and nothing more."
And on page 109:
'And an instruction as to punitive damages, when there is no substantial evidence that the neglect so complained of was wanton or malicious, has been held to be erroneous."
Sutherland on Damages, in Vol. 2, says:
"I'hese damages are allowed only when there is misconduct and malice or what is equivalent thereto. A tort committed by mistake in the assertation of a supposed right or without any actual wrong intention or without such recklessness or negligence as to evidence malice or conscious disregard of the rights of others,

1.908.

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