Dickensheet v. Chouteau Mining Co. will be needless to cite more than one case on this subject where the subject is discussed and authorities given. [Geary v. Railroad, 173 Mo. App. 249, 251, 158 S. W. 736.] It is interesting to note that the Supreme Court in the case of State v. Dwire, 25 Mo. 553, held that the word "authorized" is an equivocal word and should not be used where the jury are to be told they are at liberty to act, as the word might imply to them that they were required to so act. This case has never been overruled or criticised, expressly. And we take it that the discretion which must be given the jury in allowing punitive damages in civil cases must be as unentrammeled as the discretion given them in a criminal case where the law is that they are given the right to exercise their discretion. We however find in the civil case of Paulette v. Brown, 40 Mo. 52, that an attack was made on the following instruction: "If the jury find that Thomas Tallis wilfully and knowingly swore falsely to any material matter in this case, the jury are authorized to discredit the whole of the testimony of said Tallis." The court said, speaking of the instruction in which the jury were "authorized" to discredit, that there was no invasion of the province of the jury and that nothing appeared on the face of such declaration that could lead a rational mind to suppose that it was intended as a positive demand to the jury to discredit it. And while the Dwire case is discussed and referred to therein and no criticism on the use of the word "authorized" there was made, yet there can be no other effect given to the language used by the court than that the word "authorized" as used did not invade the province of the jury by commanding them. Turning to other jurisdictions, we find that in the case of Calder v. Southern Ry. Co., 89 B. C. 287, Ann. Cas. 1913 A, 894, the following instruction in a punitive damage case was approved where the jury were told they were authorized to find punitive damages: "The Dickensheet v. Chouteau Mining Co. court instructs the jury that punitive damages are not only recoverable for a wanton, highhanded, or willful invasion of plaintiff's rights, but that the jury were. authorized to find punitive damages, if they believe there was a conscious disregard on the part of the defendant, its agents and servants, to do their duty, a conscious failure to observe due care, which was the proximate cause of the injury." [2 Blashfield's Instructions to Juries (2 Ed.), sec. 2630.] "Authorized" is defined in Bacon v. Davis. (Cal.), 98 Pac. 71, as meaning "empowered." In State v. Board of Commissioners (Kan.), 114 Pac. 247, it is said that the word means "to give a right to act." In Webster's Dictionary-"to clothe with authority." Century Dictionary-"to give legal power to." In People ex rel. Hilliker v. Pierce, 119 N. Y. Supp. 21, it is said that the words "authorized and empowered" are usually words of permission merely and generally have that sense when used in contracts and private affairs but when used in statutes are frequently mandatory and imperative. On the other hand, it was held in Atlanta, K. & N. R. Co. v. Gardner, 122 Ga. 82, 49 S. E. 818, 821, that the word "authorized” used in an instruction would not be equivalent to a command. In Masur Tebbetts Implement Co. v. Smith, 65 Ill. App. 319, 324, we find the word "authorized," as used in an instruction in regard to punitive damages, is criticised as being equivalent nearly to the word "entitled." "While it is not believed to be the best word to use," said the court, "yet its use has never been condemned so far as we are aware. It was used in the case of Hodgson v. Millward (Pa.), 3 Grant Cas. 406, with apparent approval." In Seeds v. Burk (Pa.), 37 Atl. 511, 513, it is said that the word implies discretion. We know that an ordinance authorizing and empowering the mayor or marshal of a city to keep and preserve the peace is mandatory and involves a duty on the part of such officers. On the other hand, an ordinance authorizing and empowering the officers of Dickensheet v. Chouteau Mining Co. a city to own and operate public utilities would not be taken as mandatory but as merely giving them the right or the permission to do so in their discretion. A word having such a pronounced double meaning ought to be used in an instruction wherein only one of the meanings of such word is proper to be used. As to whether this is reversible error, it may be well to look to the other instructions given. The first instruction-on the measure of damages-told the jury that if they found certain facts to exist they must assess damages in plaintiff's favor. They were also told in another instruction that before they could find the issues for the plaintiff for actual damages they must not only find that the defendant permitted the water and mud to flow on her land but must find that plaintiff was damaged. And they were told that in estimating plaintiff's punitive damages they may take into consideration her condition in life as shown by the evidence. We might say, as was said in the case of Hauser v. Steigers, 137 Mo. App. 1. c. 570, 119 S. W. 52, where a similar proposition was being discussed, that although the instruction is not well drawn, in view of the other instructions we think there was no chance for men of ordinary intelligence to derive the opinion that they had been instructed they must award punitive damages if they found for plaintiff. However, there are other faults apparent in this instruction on punitive damages. It is misleading in this, that it can be so read that if the casting of the mine water on and across plaintiff's land by the defendant was done to her discomfort and annoyance which it might cause her in the use and enjoyment of her property they were authorized to assess punitive damages; that is to say, if the jury should find that it was wilfully or if it was recklessly done or if to the discomfiture or annoyance of the plaintiff. The latter permission upon which punitive damages could be allowed by this instruction is one going only to the actual damages and not one going under the law to Dickensheet v. Chouteau Mining Co. punitive damages. Again, the instruction tells the jury that if the casting of the water on plaintiff's land by the defendant was willful, that is, without lawful excuse, they are authorized to assess punitive damages. The word "willful" implies that the act was intentionally done (Jennings v. Appleman, 159 Mo. App. 1. c. 18, 139 S. W. 817); "wilfully" means "intentionally," designedly;" and in legal significance, to "wilfully" wrong a person generally means to intentionally to do an act which is known or ought to be known will injure or damage some one. The basis for punitive damages is intentionally violating a known right. If it is willful it must be intentional. If it is so reckless as to utterly disregard the rights of others the law implies the willful intent. The definition in this instruction does not carry with it the idea to the jury that the act must be an intentional one insofar as it defines "willful." In fact, to injure a person "without lawful excuse" is the basis upon which compensatory damages are allowed, and if it be the ground upon which punitive damages may be allowed it would be proper in every case where compensatory damages are recovered to also permit exemplary or punitive damages. The Supreme Court in Peak v. Taubman, 251 Mo. 1. c. 429, 158 S. W. 656, has adopted the following as the definition of "wilfulness:" "Wilfulness-a wrongful act, done intentionally, without just cause." [See also, Schumacher v. Distillery Co., 178 Mo. App. 361, 165 S. W. 1142; Ferguson v. Railway Co. (Mo.), 177 S. W. 616.] The instruction in this case on punitive damages is so badly framed that it will not meet the requirements of the law defined by Judge GRAY in the case of Geary v. Railroad, 173 Mo. App. 249, 158 S. W. 736, and we therefore hold that the complaint against this instruction is well founded. If, within ten days from the date on which this opinion is handed down the plaintiff files with the clerk of this court a written remittitur of the punitive damages, the judgment will be affirmed; otherwise, it will Luther v. Kinion. be reversed and the cause remanded. And should the case be tried again we call attention to the cases of Adams v. Railroad, 149 Mo. App. 278, 130 S. W. 48; Brennan v. Maule, 108 Mo. App. 336, 83 S. W. 283; Summers v. Keller, 152 Mo. App. 626, 133 S. W. 1180; s. c., 171 S. W. 336; Lampert v. Judge & Dolph Drug Co., 238 Mo. 409, 141 S. W. 1095; Hoagland v. Amusement Co., 170 Mo. 1. c. 345, 70 S. W. 878; and Roney v. Organ, 176 Mo. App. 234, 161 S. W. 868, in connection with the last clause contained in the instruction on punitive damages. Sturgis, P. J., and Bradley, J., concur. NAT LUTHER, Appellant, v. HENRY KINION, Re spondent. Springfield Court of Appeals, April 20, 1918. Where a JUDGMENT: Conclusiveness: Mortgagee and Mortgagor. wife for an indebtedness pledged or mortgaged certain live stock as security for payment thereof, and later the husband, who knew of existence of the pledge, brought suit for divorce, in which suit title to the property pledged was tried and adjudicated in favor of the husband, plaintiff pledgee or mortgagee, not made a party to divorce suit, would not be bound by judgment therein in a subsequent suit against defendant purchaser of property under divorce judgment. Appeal from Howell Circuit Court.-Hon. E. P. Dorris, Judge. REVERSED AND REMANDED. J. N. Burroughs for appellant. FARRINGTON, J.-The sole question for determination on this appeal is whether a mortgagee of personal property is bound by a judgment rendered against |