Barnard v. Cohen

162 N.W. 480, 165 Wis. 417, 1917 Wisc. LEXIS 120

Opinion

Rosenberry, J.

There was a demurrer to the complaint which was overruled. The defendant assigns this as error, but in the view we take of the case that question is immaterial. An erroneous judgment will not be reversed where recovery is for no more than a nominal amount. Riess v. Delles, 45 Wis. 662.

The principal question presented is: In an action for libel, can there be a recovery of punitory damages if only nominal compensatory damages are found?

Upon this question there is a conflict in the authorities. In the following cases it is held there may be such recovery: McConathy v. Deck, 34 Colo. 461, 83 Pac. 135; Lamport v. Judge & Dolph D. Co. 238 Mo. 409, 141 S. W. 1095. The following cases hold that there may not be such a recovery: First Nat. Bank v. Kansas G. Co. 60 Kan. 30, 55 Pac. 277; Kuhn v. C., M. & St. P. R. Co. 74 Iowa, 137, 37 N. W. 116; Meidel v. Anthis, 71 Ill. 241. This court is committed to the doctrine that punitory damages cannot be recovered in an action where the compensatory damages are merely nominal. We think this rule is based not only upon authority but upon the better reason. Barber v. Kilbourn, 16 Wis. 485; Maxwell v. Kennedy, 50 Wis. 645, 7 N. W. 657. See, also, Bass v. C. & N. W. R. Co. 42 Wis. 654, 672.

By the Court. — Judgment affirmed.