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Theodore Sedgwick.

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that which was really inflicted." "^

§ 354. The rule established by authority and convenience.

Upon the whole, the doctrine is to be supported (except
in those few jurisdictions which have repudiated it) mainly
upon the grounds of authority and convenience. The his-
torical facts already referred to show that it has its roots in
that jealousy of the exercise of arbitrary and malicious power,
to which the jury in our system of law has always been so
keenly alive; and if it is an anomalous survival of a part of
the old rule that the jury were judges of the damages, it must
be inferred that it has survived because of its inherent useful-
ness. jMany anomalies which have far less authority behind
them must be supported on this ground, and no anomaly
supported by both authority and convenience can be erad-
icated simply by showing it to be illogical. The idea that
it is unjust rests upon the assumption that there is something
unfair in allowing the plaintiff's damages to be enhanced on
account of the defendant's intent, but it is to be said in reply
to this that although the intent cannot make a wrongful act
more wrongful, it may make the consequences of it much more
serious, and of the extent of these consequences the jury is
the judge and the only possible judge. In support of this view
the reasoning of the early cases seems thus far to have been
convincing. It should be observed in conclusion that even
in jurisdictions which discountenance the doctrine, juries arc
allowed to give, under the title of damages to feelings, verdicts
quite as substantial as any which could be recovered under
the head of exemplary damages. Hence it is not open to the
opponents of exemplary damages to contend that the practical
results of the application of the rule work any injustice, or
that the rule bears more heavily upon the wrongdoer than

« Gilreath v. Allen, 10 Ircd. (N. C.) 67.



§ 355 EXEMPLARY DAMAGES IN OTHER SYSTEMS OF LAW 701

the substitute of which they are advocates. In either case it
is the jury and not the court which practically decides how
much the plaintiff may recover.

§ 355. Exemplary damages in other systems of law.

* In the Roman and Civil Law exemplary damages seem to
have been unknown. In Scotland the principle of compensa-
tion seems rigidly adhered to, even in cases of flagrant wrong.
So, in an action of damages for defamation, sending a challenge,
assault, and threatened battery, the Lord Chief Commissioner
Adam, one of the most eminent judges of the last century,
said: "In all cases of damage, a fair, unprejudiced discussion
{avoiding in civil cases the converting compensation for a civil
injury into a matter of punishment) will lead to a rational, con-
scientious, and fair compromise of your different opinions, and
bring you to fix on one sum"; and the reporter adds: ''In all
cases of this sort, his lordship has been in the habit of repeat-
ing this doctrine." "^^

Again, in an action for defamation, the Lord Chief Com-
missioner said: "The question of damages, in case of an attack
on the character of a professional man, must always include
both a question of loss and solatium. You must consider it
as a question of reparation, not of punishment; but if a person
of perfectly pure character is assailed in this manner, you
will consider whether a rich man ought not to pay a little
more." ^^ The same rule was laid down by the same judge
in actions of crim. con. In Baillie v. Bryson,^^ an action of
this class, the Lord Chief Commissioner said: "I cannot help
thinking that Lord Kenyon introduced into cases of this sort
a principle, as to damages, extremely dangerous in its conse-
quences. He considered such questions, not merely as cal-
culated to repair the injury done to the one party, but as a
punishment of the other, and as intended to correct the morals
of the country. The morals of the country have not been
improved, and I am afraid its feeling has been much impaired.
A civil court in matters of civil injury is a bad corrector of
morals; it has only to do with the rights of parties." ** ''^

" Hyslop V. Staig, 1 Murr. 15, 24. « 1 Murr. 317, 337.

*^ Christian v. Lord Kennedy, 1 '•' It would seem that the introduc-

Murr. 419, 428. tion of Lord Kenyon's name in this



702 EXEMPLARY DAMAGES §§ 356, 357

§ 356. Exemplary damages and damages for mental suffering.

It will at once appear that circumstances of aggravation,
such as give rise to exemplary damages, are frequently, if not
generally, of a nature to cause additional loss to the plaintiff
of an intangible sort, such as mental suffering or loss of repu-
tation. As Foster, J., points out in Fay v. Parker,'*^ the earliest
cases cited as allowing exemplary damages were of this sort;
the court refused to set aside the large verdicts found by the
jury, on the ground of the impossibility of saying that the
jury had estimated this element of loss too highly. But the
doctrine of exemplary damages as established has no relation
to the suffering of the plaintiff.

The allowance of exemplary damages gave rise for a time
to the notion that mental suffering was not a subject for com-
pensatory damages. This notion has been generally aban-
doned; in Massachusetts and other jurisdictions where exem-
plary damages are not allowed, the right to recover damages
for mental suffering has always been recognized.

§ 357. Exemplary damages in addition to compensatory.

The similarity between exemplary damages and damages
for wounded feelings has been noticed by the Supreme Court
of Wisconsin, in the case of Brown v. Swineford."*^

"The distinction between compensatory damages for
wounded feeling, sense of insult, etc., and punitory damages
is sometimes very vague. . . . And the vagueness of this
distinction, in practice as well as in theory, is illustrated by
the three reports of Bass v. Railway Co.^° The case was three
times tried in different counties, twice upon instructions allow-
ing exemplary damages, and once upon instructions disallowing
them. And yet the verdict on each trial was for the same
sum. Apparently what was allowed on two trials for exem-

connection is a mistake. In the only a hint of the right to punish the de-
reported case to be found where the fendant. Duberley v. Gunning, 4 T. R.
subject of excessive damages was dis- 651. Lord Camden is probable meant,
cussed by him, he follows the language *^ 53 N. H. 342.
of the older cases, and refuses to set « 44 Wis. 282, 289, per Ryan, C. J.
aside a verdict on the ground that in ^» 36 Wis. 450, 39 Wis. 636, 42 Wis.
actions of tort the court cannot cont rol 654.
the jury. There is not in his opinion



§ 358 IN SOME STATES NOT AWARDED 703

plary damages was allowed on the third trial for compensatory
damages for wounded feelings, etc."

In spite of this similarity, however, the two sorts of damage
are quite distinct. Damages for wounded feelings are com-
pensatory in their nature, and are given, as has been seen,
in all cases where the allowance is proper. Exemplary damages
are given because of the motive of the defendant or the wan-
ton or aggravated nature of the tort, and it is well settled that
when they are allowed it is in addition to compensatory dam-
ages for either physical or mental suffering.^ ^ In Texas exem-
plary damages are to be demanded in the pleadings, and the
jury must in their verdict find separately the compensatory
and the exemplary damages.^^

§ 358. In some States exemplary damages are not awarded.

As has been said, the doctrine of exemplary damages has
never been established in Massachusetts.^^ In that State the
"manner and manifest motive" of a tort may be shown, as
tending to prove mental suffering.^* In Hawes v. Knowles,^^
Gray, C. J., said: ''In an action of tort for a wilful injury to
the person, the manner and manifest motive of the wrongful
act may be given in evidence as affecting the question of dam-
ages; for when the merely physical injury is the same, it may
be more aggravated in its effect upon the mind if it is done
in wanton disregard of the rights and feelings of the plaintiff,
than if it is the result of mere carelessness"; and it was held
that the wantonness must be such as to cause additional pain

" Illinois: Harrison v. Ely, 120 III. Neely, 91 Va. 539, 22 S. E. 367, 44 Am.

83. St. Rep. 884.

Iowa: Parkhiirst v. Masteller, 57 la. Wisconsin: Craker v. Chicago &

474; Root v. Sturdivant, 70 la. 55. N. W. Ry., 36 Wis. 657.

Mississippi: Bonelli v. Bowen, 70 '- Kaufman v. Wicks, 62 Tex. 234.

Miss. 142, 11 So. 791. "Spear v. Hubbard, 4 Pick. 143,

New Jersey: Haines i-. Schultz, 50 145; Sampson v. Henry, 11 Pick. 379,

N. J. L. 481. 388; Barnard v. Poor, 21 Pick. 378;

New York: Hamilton v. Third Ave- Burt v. Advertiser Newspaper Co., 154

nue R. R., 35 N. Y. Super. Ct. 118. Mass. 238, 28 N. E. 1, 13 L. R. A. 97;

South Carolina: Chiles v. Southern Ellis v. Brockton Pub. Co., 198 Mass.

Ry., 69 S. C. 327, 48 S. E. 252, explain- 538, 84 N. E. 1018.

ing Aaron v. Southern Ry., 68 S. C. 98, " Smith v. Holcomb, 99 Mass. 552;

46 S. E. 556. Hawes ;-. Knowles, 114 Mass. 518.

Vi/rginia: Norfolk & W. R. R. v. » 114 Mass. 518.



704 EXEMPLARY DAMAGES § 359

to the plaintiff in body or mind. The same decision denying
exemplary damages has been given in the new States of Col-
orado,^^ Nebraska," and Washington,^^ where the court, treat-
ing the question as res Integra, followed the Massachusetts
decisions on principle. In New Hampshire the same result
has been reached by overruling earlier cases allowing exemplary
damages. ^^

In Wilson v. Bowen ^° the Supreme Court of Michigan said:
"The purpose of an action of tort is to recover the damages
which the plaintiff has sustained from an injury done him by
the defendant; compensation to the plaintiff is the purpose
in view; and, when that is accorded, anything beyond, by
whatever name called, is unauthorized. It is not the province
of the jury, after full damages have been found for the plain-
tiff, so that he is fully compensated for the wrong committed
by the defendant, to mulct the defendant in an additional
sum, to be handed over to the plaintiff as a punishment for the
wrong he has done to the plaintiff." And after some fluctua-
tion of opinion, this appears to be the present doctrine in that
State.fii

§ 359. In some States exemplary damages, so called, are in
fact compensatory.
In West Virginia exemplary damages so called are allowed;
but they are distinctly held to be compensatory damages,

66 Murphy v. Hobbs, 7 Colo. 541; Wash. 470, 104 Pac. 626. In some cases

Greeley, St. L. & P. Ry. v. Yeager, 11 exemplary damages are now allowed by

Colo. 345. A statute was passed in statute.

1889 (Sess. Laws, p. 64) allowing the *^ Fay v. Parker, 53 N. H. 342; BLxby

recovery of exemplary damages; but v. Dunlap, 56 N. H. 456.

this statute does not apply to an action ^o 54 Mich. 133, 141, per Champlin,

for a wrong done before its passage. J.; following Stilson v. Gibbs, 53 Mich.

Howlett V. Tuttle, 15 Colo. 454, 24 280.

Pac. 921. " Durfee v. Newkirk, 83 Mich. 522,

" Boyer v. Barr, 8 Neb. 68, 30 Am. 47 N. W. 351; Ford v. Cheever, 105

Rep. 814; Riewe v. McCormick, 11 Mich. 679, 63 N. W. 975; Haviland v.

Neb. 261; Bee Pub. Co. v. World Pub. Chase, 116 Mich. 214, 74 N. W. 477,

Co., 59 Neb. 713, 82 N. W. 28. 72 Am. St. Rep. 519; Boydan v. Haber-

68 Spokane Truck & D. Co. v. stumpf, 129 Mich. 137, 88 N. W. 386;

Hoefer, 2 Wash. 45, 25 Pac. 1072, 11 McChesney v. Wilson, 132 Mich. 252,

L. R. A. 689, 26 Am. St. Rep. 842; 93 N. W. 627; Hink v. Sherman, 129

Woodhouse v. Powlcs, 43 Wash. 617, 86 N. W. 732.
Pac. 1063; Hclland v. Bridenstine, 55



I



§359 EXEMPLARY DAMAGES, SO CALLED 705

"indeterminate" damages, as the court calls them.^^ 'pjjg
court divides damages into ''determinate" damages, those
for which there is an easily ascertained measure, and ''indeter-
minate" damages, given for non-pecuniary loss, such as phys-
ical or mental pain or loss of reputation. Both classes of
damages may be recovered, the court held, the latter under
the name "exemplary" damages; but no damages can be
recovered in pcenam.^^ Consequently though by the Civil
Damage Act a wife was allowed to recover exemplary damages
from one selling liquor to her husband, this was held to mean
compensation for mental anguish.^^

The doctrine of the West Virginia court appears to be law
also in Nevada ^^ and Wyoming.^^ In Lower Canada, a State
deri\ang its jurisprudence from the Civil Law, the rule seems
to be the same.^^ Damages have been allowed, called "exem-
plary" ("dommages exemplaires" as distinguished from
"dommages reels"); but they are apparently compensatory
damages for pain,^^ mental suffering,^^ or loss of reputation.™

In Texas a peculiar rule obtains. Exemplary damages seem
to be regarded as compensatory, but as an award of compensa-
tion for losses which in ordinary cases are not to be com-
pensated. The ordinary rules restricting compensation to
proximate and natural loss are relaxed, and litigation expenses
are also recovered. Thus where the injury was wilful and

*2 Pegram v. Stortz, 31 W. Va. 220; some cases of mental suffering. Chap-
Beck V. Thompson, 31 W. Va. 459; man, C. J., in Smith v. Holcomb, 99
Stevens v. Friedman, 58 W. Va. 78, 51 Mass. 552, 554.
S. E. 132. «^ Pegram v. Stortz, 31 W. Va. 220.

"The court followed the common ^^ Quigley v. Central P. R. R., 11

authorities on exemplary damages, and Nev. 350.

as a result held that "indeterminate" *^ Union P. R. R. v. Hause, 1 Wyo.

damages are allowed only in case of an 27.

injury inflicted with vicious intention. " See, however. Guest v. Macpher-

Such losses are more likely to result son, 3 Leg. News, 84, where damages

from a wilful tort; but they may also are divided into three sorts: nominal,

result from a well-intended or even an compensatory, and punitive,

involuntary act, and they are then to ^ Falardeau v. Couture, 2 L. C. J.

be compensated. This is notably true 96.

in the case of physical suffering, which •" Mathieu v. Laflamme, 4 R. L.

may be compensated as well in an ac- 371.

tion for negligence as in an action for '" Brossoit v. Turcotte, 20 L. C. J.

wilful trespass; but it is equally true in 141.

45



'(Hi



EXEMFLAIIY DAMAGES



§ 300



inalirioiis, damages (called exemplary) arc allowed for mental
anguish, for counsel fees, and for loss of credit in an action for
the destruction of property, or for a wrongful attachment, or
other tort/^ And the same rule appears to prevail in Kansas."
But it is doubtful if in any case the damages can exceed com-
pensation for the plaintiff's actual loss.

In some States the Jury is allowed to consider the expenses
of litigation in assessing exemplary damages.'^'' This doctrine
is similar to that held in Texas, though it does not go so far.
Such damages are plainly compensatory, and have no proper
connection with damages given for punishment.

In several States exemplary damages, when allowed, include
compensation for the aggravation of the plaintiff's feelings.^*

§ 360. In most jurisdictions exemplary damages are given for
punishment.

In most jurisdictions it is settled that exemplary damages,
as a warning to other wrongdoers and as a punishment to the
defendant, may be recovered in addition to compensatory



"' International & G. N. R. R. v.
Telephone & Telegraph Co., 69 Tex.
277; Biering v. First Nat. Bank of
Galveston, 69 Tex. 599; Trawick v.
Martin-Brown Co., 79 Tex. 460, 14 S.
W. 564.

" Duff & R. F. Co. V. Read, 74 Kan.
730, 88 Pac. 263.

" Alabama: Marshall v. Betner, 17
Ala. 833.

Arkansas: Patton v. Garrett, 37 Ark.
605 {semblc).

Connecticut: lluntlvy v. Bacon, 15
Conn. 267; Ives v. Carter, 24 Conn.
392; Beecher v. Derby Bridge Co.,
24 Conn. 491; St. Peter's Church v.
Beach, 26 Conn. 355; Dibble v. Morris,
26 Conn. 416; Piatt v. Bro\\Ti, 30 Conn.
336; Welch v. Durand, 36 Conn. 182;
Dalton V. Beers, 38 Conn. 529; Mason
V. Hawes, 52 Conn. 12; Bennett v.
Gibbons, 55 Conn. 450; Wynne v.
Parsons, 57 Conn. 73; Maiscnbacker
V. Society, 71 Conn. 369, 42 Atl. 67, 71
Am. St. Rop. 213; Hanna v. Sweeney,
78 Conn. 492, 62 Atl. 785, 4 L. R. A.



(N. S.) 907; Shupack v. Gordon, 79
Conn. 298, 64 Atl. 740; Distin v. Brad-
ley, 76 Atl. 991.

Kansas: Titus v. Corkins, 21 Kan.
722; Winstead v. Hulme, 32 Kan. 568.

Louisiana: Eatman v. New Orleans
P. Ry., 35 La. Ann. 1018.

Mississippi: Northern, .J. & G. N.
R. R. V. AUbritton, 38 Mi.ss. 243.

Ohio: Roberts v. Mason, 10 Oh. St.
277; Finney v. Smith, 31 Oh. St. 529;
Stevenson v. Morris, 37 Oh. St. 10;
Peckham Iron Co. v. Harper, 41 Oh.
St. 100; Winters v. Cowen, 90 Fed. 99
(Ohio law). Sec § 234.

^'' Georgia: Chattanooga, R. & C. R.
R. V. Liddell, 85 Ga. 482, 11 S. E. 853,
21 Am. St. Rep. 169; Jacobus v. Con-
gregation, etc., 107 Ga. 518, 33 S. F..
853, 73 Am. St. Rop. 141; Wright r.
Hollywood Cemetery Cor^j., 112 Ga.
884, 38 S. E. 94, 52 L. R. A. 621;
Georgia Ry. & Elec. Co. v. Davis, 6
Ga. App. 645, 65 S. E. 785.

South Cdrolinn: Gosa v. Southern
Ry., 67 S. C. 347, 45 S. E. 810.



I



360



DAMAGES GIVEN FOR PUNISHMENT



707



damages."'' The authorities in Oregon leave the question
doubtful. The Supreme Court of that State, in an elaborate
opinion, refused to give exemplar}- damages in any case not



'5 United States: Day v. Woodworth,
13 How. 363, 14 L. ed. 181; Milwaukee
& St. P. Ry. V. Arms, 91 U. S. 489, 23
L. ed. 374; Missouri P. Ry. v. Humes,
115 U. S. 512, 29 L. ed. 463, 6 Sup. Ct.
110; Denver & R. G. Ry. v. Harris, 122
U. S. 597, 30 L. ed. 1146, 7 Sup. Ct.
1286; Brown v. Evans, 8 Sawy. 488;
U. S. V. Taylor, 35 Fed. 484; Scott v.
Donald, 165 U. S. 58, 77, 41 L. ed.
632, 17 Sup. Ct. 265.

Alabama: Jefferson County Sav.
Bank v. Eborn, 84 Ala. 529.

Arizona: Jaeger v. Metcalf, 11 Ariz.
283, 94 Pac. 1094.

Arkansas: Clark v. Bales, 15 Ark.
452; Ward v. Blackwood, 41 Ark. 295
(semble); Citizens' St. Ry. v. Steen, 42
Ark. 321.

California (by Code): St. Ores v.
McGlashen, 74 Cal. 148; Waters v.
Dumas, 75 Cal. 563; Bundy v. IVIagin-
ess, 76 Cal. 532.

Connecticut: Linsley v. Bushnell, 15
Conn. 225; Dibble v. Morris, 26 Conn.
416; Dalton v. Beers, 38 Conn. 529.

Dakota: Bates v. Callender, 3 Dak.
256 (semble) .

Delaware: Robinson v. Burton, 5
Harr. 335.

District of Columbia: Redwood v. M.
R. R., 6 D. C. 302.

Florida: Smith v. Bagwell, 19 Fla.
117 (semble).

Georgia (by Code): Coleman v.
Allen, 79 Ga. 637.

Illinois: Harrison v. Ely, 120 111. 83.

Indiana: Binford v. Young, 115 Ind.
174.

Iowa: Parkhurst v. Masteller, 57 la.
474; Root v. Sturdivant, 70 la. 55;
Redfield v. Redfield, 75 la. 435; Thill
V. Pohlman, 76 la. 638.

Kansas: Wheeler & Wilson Manuf.
Co. V. Boyce, 36 Kan. 350; Cad}' v.
Case, 45 Kan. 733, 26 Pac. 448.



Kentucky: Louisville & N. R. R. v.
Ballard, 85 Ky. 307.

Louisiana: Daly v. Van Benthuysen,
3 La. Ann. 69.

Maine: Pike v. Dilling, 48 Me. 539;
Webb V. Gilman, 80 Me. 177.

Maryland: Baltimore & Yorktown
Turnpike v. Boone, 45 Md. 344; Phila-
delphia, W. & B. R. R. V. Larkin, 47
Md. 155.

Michigan: McPherson v. Ryan, 59
Mich. 33; Ross v. Leggett, 61 Mich.
445; Newman v. Stein, 75 Mich. 402
(but see another line of decisions contra,
Stilson V. Gibbs, 53 Mich. 280; Wilson
V. Bowen, 64 Mich. 133).

Minnesota: McCarthy v. Niskern, 22
Minn. 90; Peck v. Small, 35 Minn. 465.

Mississippi: Vicksburg & M. R. R. ?;.
Scanlan, 63 Miss. 413; Higgins v. L., N.
O. & T. R. R., 64 Miss. 80.

Missouri: Buckley v. Knapp, 48 Mo.
152; Joice v. Branson, 73 Mo. 28.

Montana: Bohm v. Dunph}^, 1 Mont.
333.

New Jersey: Magee v. Holland, 27
N. J. L. 86; Haines v. Schultz, 50 N. J.
L. 481.

New York: Bergmann v. Jones, 94
N. Y. 51.

North Carolina: Johnson v. Allen, 100
N. C. 131; Bowden v. Bailes, 101 N. C.
612; Knowles v. N. S. R. R., 102 N. C.
659.

Ohio: Atlantic & G. W. Ry. v. Dunn,
19 Oh. St. 162; Hayner v. Cowden, 27
Oh. St. 292.

Pennsylvania: Lake Shore & M. S.
Ry. V. Rosenzweig, 113 Pa. 529; Phila.
Traction Co. v. Orbann, 119 Pa. 37,
12 Atl. 816.

Rhode Island: Hagan v. Providence
& W. R. R., 3 R. I. 88 (semble); Von
Storch V. Winslow, 13 R. I. 23 (semble) ;
Konyon v. Cameron, 17 R. L 116.

South Carolina: Qui^n v. S. C. Ry.,



708



EXEMPLARY DAMAGES



§361



rc(iuircd by the authorities^^ In an earlier case exemplary
damages were allowed; but the defendant's counsel conceded
the point. "^ The latest case recognizes the theory as law, but
refuses to allow exemplary damages on the facts.^^ In Mis-
souri it was at one time doubtful whether exemplary damages,
so called, could ever go beyond a "good round compensa-
tion";"^ but it is now settled that true exemplary damages
ma}'^ be recovered.^"

In States where exemplary damages are given in poznam
it is not permissible to prove, as bearing on their amount, any
actual loss, such as the payment of counsel fees.^^

§ 361. Exemplary damages not allowed without actual loss.

It is held in most jurisdictions that if the plaintiff has suf-
fered no actual loss, he cannot maintain an action merely to
recover exemplary damages.^- A plaintifT has no right, the

29 S. C. 381 ; Griffin v. Ry., 65 S. C. 122,
43 S. E. 445.

Tennessee: Polk v. Fancher, 1 Head,
336; Jones v. Turpin, 6 Heisk. 181;
Cox V. Crumley, 5 Lea, 529; Louisville,
N. & G. S. R. R. V. Guinan, 11 Lea, 98.

Vermonl: Rea v. Harrington, 58 Vt.
181; Camp V. Camp, 59 Vt. 667.

Virginia: Borland v. Barrett, 76 Va.
128; Harman v. Cundiff, 82 Va. 239.

Wisconsin: McWilliams v. Bragg, 3
Wis. 424; Spear v. Hiles, 67 Wis. 350;
Templeton v. Graves, 59 Wis. 95, 17
N. W. 672.

Wyoming: Cosgriff v. Miller, 10 Wyo.
190, 68 Pac. 206.

Englwid: Emblen v. Myers, 6 H. & X.
54; Boll V. Midland Ry., 4 L. T. (N. S.)
293. But see McArthur v. Cornwall,
[1892] A. C. 75.

Canada: Gingras v. Desilets, Cass.
Can. Dig. 116; Clissold v. Maohell, 26
Up. Can. Q. B. 422; Silver v. Dom. Tel.
Co., 2 R. & G. (N. Scot.) 17.

'« Sullivan v. Ore. Ry. & Nav. Co., 12
Ore. 392.

" Heneky v. Smith, 10 Ore. 349.

™ Day V. Holland, 15 Ore. 464.

" Freidenheit v. Edmundson, 36 Mo.
226; McKeon v. C. Ry., 42 Mo. 79.



80 Buckley v. Knapp, 48 Mo. 152;
Joice V. Branson, 73 Mo. 28.

*i Vermont: Hoodley v. Watson, 45
Vt. 289, 12 Am. Rep. 197.

Wisconsin: Fairbanks v. Witter, 18
Wis. 287, 86 Am. Dec. 765.

«^ Illinois: Meidel v. Anthis, 71 111.
241; Martin v. Leslie, 93 111. App. 44;
Duffy V. Frankenberg, 144 III. App. 103.

Iowa: Kuhn v. Chicago, M. & S. P. R.
R., 74 la. 137, 37 N. W. 116; Board-
man V. Marshalltown Grocery Co., 105
la. 445, 75 N. W. 343; International
Harvester Co. v. Iowa Hardware Co.,
146 la. 172, 122 X. W. 951.

Kansas: Schippel v. Xorton, 38 Kan.
567, 16 Pac. 804 (but see Hcfley v.
Baker, 19 Kan. 9, allowed in ca.sc of
wilful trespass on land); Adams ''.
Salina, 58 Kan. 246, 48 Pac. 918; First
Nat. Bank v. Kansas Grain Co., 60
Kan. 30, 55 Pac. 277; Cole v. Gray, 70
Kan. 705, 79 Pac. 654; Sondegard v.
Martin, 111 Pac. 442; Stonestreet v.
Crandell, 10 Kan. App. 575, 62 Pac.
249.

Maine: Stacy v. Portland Pub. Co.,
68 Me. 279.

Michigan: Ganssly v. Perkins, 30
Mich. 492.



I



§361



NOT ALLOWED WITHOUT LOSS



709



courts say, to maintain an action merely to inflict punishment;
exemplary damages are in no case a right of the plaintiff and
cannot, therefore, become a cause of action. But in the lower
Federal courts and a few other jurisdictions it is held, on the
other hand, that if a right of action exists, though the loss is
nominal, exemplary damages may be recovered in a proper
case; for the plaintiff had a right to maintain his action apart
from the privilege of recovering exemplary damages. ^^ The
rule generally followed, however, does not require the proof
of a given amount of actual loss; if there was actual damage,
though not so proved as to establish a definite amount of loss,
exemplary damages may be recovered. ^^



Mississippi: Robinson v. Goings, 63
Miss. 500; Mississippi & T. R. R. v.
Gill, 66 Miss. 39, 5 So. 393.

Missouri: Hoagland v. Forest Park
Highlands Amusement Co., 170 Mo.
335, 70 S. W. 878, 94 Am. St. Rep. 740
(overruling Ferguson v. Evening Chron-
icle Pub. Co., 72 Mo. App. 462, and
Mills V. Taylor, 85 Mo. App. Ill; but
where the failure to recover actual dam-
ages is due solely to defect in the plead-
ings exemplary damages may be re-
covered: Favorite v. Cottrill, 62 Mo.
App. 119; or if it is due to a defect in



Online LibraryTheodore SedgwickA treatise on the measure of damages, or, An inquiry into the principles which govern the amount of pecuniary compensation awarded by courts of justice (Volume 1) → online text (page 75 of 88)