Brennan v. Maule

• Decision Date: 15 November 1904
• Parties: BRENNAN, Respondent, v. MAULE, JR., Appellant
• Court: Missouri Court of Appeals

83 S.W. 283

108 Mo.App. 336

BRENNAN, Respondent, v. MAULE, JR., Appellant

Court of Appeals of Missouri, St. Louis

November 15, 1904

Appeal from St. Louis Circuit Court.--Hon. J. R. Kinealy, Judge.

AFFIRMED.

Judgment affirmed.

J. P Vastine for appellant.

Actual damages must be found as a predicate for the recovery of exemplary damages. "When no actual damage has been sustained," as found by the jury, "no exemplary damages can be allowed," etc. Hoagland v. Amusement Co., 170 Mo. 335, 70 S.W. 878. Normal damages will sustain punitory. Mills v. Taylor, 85 Mo.App. 111; Ferguson v. Chronicle Pub. Co., 72 Mo.App. 462; Favorite v. Cottrell, 62 Mo.App. 119. If defendant committed no legal wrong, though his act resulted in damage to plaintiff, the law affords no remedy. It is damnum absque injuria. Land Co. v. Hudson Bros.' Com. Co., 138 Mo. 439 40 S.W. 93.

Chilton Atkinson for respondent.

(1) A judgment founded upon a defective verdict will not be reversed unless a motion in arrest was made. Davidson v Peck, 4 Mo. 446; Johnson v. Stredder, 3 Mo. 358; Griffin v. Samuel, 6 Mo. 50; Finney v. State, 9 Mo. 633; Biglow v. Railroad, 48 Mo. 510; Erdbruegger v. Meier, 14 Mo.App. 261; Parsons v. Randolph, 21 Mo.App. 362; Dobyns v. Rice, 22 Mo.App. 475; Sweet v. Maupin, 65 Mo. 65. (2) The motion to quash the execution was filed at a term after the judgment had become final, and is therefore not available to correct judicial error in the judgment itself. Hathaway v. Railway, 94 Mo.App. 343, 68 S.W. 109. (3) The judgment in this case is not void, and the defect in the verdict is one of form, rather than of substance, which defendant might have waived. As the jury made no finding at all on the question of compensatory damages, but gave a verdict in favor of plaintiff for punitive damages, the intention of the jury to find the whole issue of fact in favor of the plaintiff is evident. Courtney v. Blackwell, 150 Mo. 245, 51 S.W. 668; Mills v. Taylor, 85 Mo.App. 116.

OPINION

REYBURN, J.

In an action for slander in two counts, in the second of which both actual and punitive damages were prayed, a jury returned as its verdict the following:

"We the jury in the above-entitled cause find in favor of the defendant on the issues joined in the first count of the petition, in accordance with the instructions of the court.

"And we find in favor of the plaintiff on the issues joined in the second count of the petition and assess his actual damages thereon at the sum of -- dollars. And we assess his punitive damages at the sum of one hundred ($ 100) dollars."

Upon judgment on this verdict an execution was issued at the succeeding term of court. Thereupon defendant filed a motion to quash such writ of execution, assigning that it was a nullity and void; that the judgment upon which it was based was for defendant for actual damages and for plaintiff for punitive damages, and the court was without authority or jurisdiction to enter judgment against defendant, and from the overruling of this motion, this appeal is taken.

It is now settled in this State that actual damages in at least a nominal sum must be found as a condition for the recovery of exemplary or punitive damages. Hoagland v. Amusement Co., 170 Mo. 335, 70 S.W. 878. But the judgment for such reason, as in this proceeding is not void, but at most voidable as supported by a verdict irregular and defective. It is doubtful whether a judgment is ever entirely void unless there appears a total absence of jurisdiction to render it, but the judgment herein was merely erroneous and liable to be reversed, if not by the trial court when its attention was directed properly and seasonably to the infirmity, then by a higher court on appeal. But a judgment, rendered by a court of general jurisdiction, having...