¶1That exemplary damages are recoverable in this class of actions, when the acts complained of are attended with aggravating circumstances of wantonness or malice, cannot longer be a debatable question in this jurisdiction. — Mitchell v. Billingsley, 17 Ala. 391; De Vaughn v. Heath, 37 Ala. 595; Rosser v. Bunn, 66 Ala. 89; Western Union, etc., Co. v. Dickens, 148 Ala. 480, 41 South. 469. The jury aAvarded the plaintiff damages to the amount of $311, and there can be no doubt that exemplary damages were assessed. On motion made by the defendant, the verdict was set aside, on the grounds that the damages Avere excessive and that the court erred in giving a charge requested by the plaintiff. The charge referred to is in this language: “I charge you, gentlemen of the jury, if you find that the defendant did trespass on the lands of the plaintiff, and if you further find that he did it in a Avanton and willful manner, then you are not confined to the assessment of the actual damages sustained, but you may go further and assess punitive damages, not exceeding $1,200.” It is argued that this charge is erroneous, as giving the jury a discretionary poAver in the assessment of damages, “Avithout stint or limit, and Avithout any rule Avhatever.”
¶2Punitive damages, being apart from compensation, are not recoverable as a matter of right. Their-imposition is discretionary with the jury. — Louisville & Nashville Railroad Co. v. Bizzell, 131 Ala. 429, 30 South. 777; 12 *314Am. & Eng. Ency. p. 51, and cases cited in notes to the text. And this discretion is not an unbridled or arbitrary one, but a legal, sound, and honest discretion; and, after instructing the jury in respect to the elements which must be found to exist to waiTant the assessment of such damages, in submitting to the jury the question of imposing punitive damages, the court should always safeguard the submission with such instructions as that the jury will not be misguided, but will be held mindful, in fixing such damages, that they should act with due regard to the enormity or not of the wrong, and to the necessity of preventing similar wrongs, and that, if such damages are imposed,, they should be in such an amount (much or little) as, under all the circumstances attending the commission of the wrong, the exigencies of the case, in the sound judgment and discretion of the jury, may demand, in no event to exceed the amount claimed in the complaint. — L. & N. R. R. Co. v. Bizzell, supra; 12 Am. & Eng. Ency. p. 54, and cases cited in note 4 to the text; 13 Cyc. 119. The charge in judgment, while it may state the elements which, if found to exist, would form the proper basis for the' assessment of exemplary damages in the discretion of the jury (Snedecor v. Pope, 143 Ala. 275, 290, 39 South. 318; White v. Spangler, 68 Iowa, 222, 26 N. W. 85), clearly leaves the jury with no rule whatever for the guidance of their discretion in the assessment of such damages (Alley v. Daniel, 75 Ala. 403; Garrett v. Sewell, 108 Ala. 521, 18 South. 737); and for this reason, while we do not decide that the trial court committed reversible error in giving it, we do hold that the charge possesses misleading tendencies and that it might properly have been refused (A. G. S. R. R. Co. v. Burgess, 119 Ala. 155, 25 South. 251, 72 Am. St. Rep. 943). Furthermore, we entertain no doubt of the right of a trial court to set aside a verdict on account of a misleading charge having been given, if convinced that pre*315judice resulted from the giving of such charge. — Goldsmith v. McCafferty, 101 Ala. 663, 15 South. 244.
¶3The trial court, we think, occupied a more advantageous position than this court does for determining whether or not the jury were misled by the charge given in this case, and wé therefore decline to disturb its judgment granting the new trial. It is not necessary to consider the other grounds set down in the motion for a new trial.
¶4Affirmed.