Draeger v. John Lubotsky Motor Sales, Inc., No. 224

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtHANLEY
Citation56 Wis.2d 419,202 N.W.2d 20
Docket NumberNo. 224
Decision Date28 November 1972
PartiesJanice DRAEGER, Appellant, v. JOHN LUBOTSKY MOTOR SALES, INC., a Wisconsin corp., et al., Respondents.

Page 20

202 N.W.2d 20
56 Wis.2d 419
Janice DRAEGER, Appellant,
v.
JOHN LUBOTSKY MOTOR SALES, INC., a Wisconsin corp., et al.,
Respondents.
No. 224.
Supreme Court of Wisconsin.
Nov. 28, 1972.

Bruce C. O'Neill, Milwaukee, for appellant.

Dominick D. Zurlo, Milwaukee, for respondents.

HANLEY, Justice.

The sole issue on this appeal is whether the trial court erred in sustaining defendants' demurrers to the amended complaint on the ground that it did not state a cause of action for punitive damages.

It has long been established in Wisconsin that:

". . . A prayer for relief is no substantive part of a complaint and the fact that the plaintiff 'asks for more relief than that which his pleaded facts entitle him to have is not reached by demurrer."' Northwestern Motor Car, Inc. v. Pope (1971), 51 Wis.2d 292, 295,

Page 23

187 N.W.2d 200, 202, quoting from D'Angelo v. Cornell Paperboard Products Co. (1963), 19 Wis.2d 390, 398, 120 N.W.2d 70; Trade Press Publishing Co. v. Milwaukee Typographical Union (1923), 180 Wis. 449, 459, 193 N.W. 507.

The above rule has been reaffirmed as recently as last month. Hertz Corporation v. Red Rooster Cheese Co. (1972) 55 Wis.2d 701, 200 N.W.2d 603.

If the complaint is sufficient to entitle the plaintiff to any of the relief demanded, a demurrer to it should not be sustained. Klauser v. Reeves (1937), 226 Wis. 305, 276 N.W. 356.

In addition to her request for punitive damages, appellant's complaint prays for out-of-pocket losses of $983.35, and for this reason it was immaterial at the demurrer stage whether plaintiff has set forth sufficient facts which might at a future time entitle her to place [56 Wis.2d 424] the question of punitive damages squarely before the fact finder.

In referring to a claim that a complaint was demurrable because of the unreasonableness of certain liquidated damages prayed for, the court in Northwestern Motor Car, Inc. v. Pope, supra, 51 Wis.2d at page 295, 187 N.W.2d at page 202 stated:

'It cannot be reached here by demurrer but is a question to be determined after trial.' (Emphasis supplied.)

We find no reason why the question of whether punitive damages will lie for the fraudulent inducement to contract should now be decided solely upon the basis of a demurrer where all allegations must be liberally construed and accepted as true instead of upon a careful analysis of a record which has been completed and closed.

Order reversed and cause remanded for further proceedings.

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5 practice notes
  • Wangen v. Ford Motor Co., Nos. 77-893
    • United States
    • United States State Supreme Court of Wisconsin
    • June 27, 1980
    ...Inc., 97 Wis.2d 136, 143, 146, 293 N.W.2d 897, 901, 902 (of even date herewith). See also Draeger v. John Lubotsky Motor Sales, Inc., 56 Wis.2d 419, 202 N.W.2d 20 This court has rested its analysis of punitive damages not on the classification of the underlying tort justifying compensatory ......
  • Drake v. Wham-O Manufacturing Company, No. 73-C-622.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • March 29, 1974
    ...type of relief in Wisconsin, not a part of the claim itself, and is therefore not demurrable. Draeger v. John Lubotsky Motor Sales, Inc., 56 Wis.2d 419, 202 N.W.2d 20 (1972). The availability of the relief should be determined "upon a careful analysis of a record which has been complet......
  • Theune v. City of Sheboygan, No. 142
    • United States
    • United States State Supreme Court of Wisconsin
    • February 27, 1973
    ...the demurrer for failure to state a cause of action does not reach that question. Draeger v. John Lubotsky Motor Sales, Inc. (1972), 56 Wis.2d 419, 420, 202 N.W.2d 20; Hertz Corp. v. Red Rooster Cheese Co., Inc. (1972), 55 Wis.2d 701, 706, 200 N.W.2d 603. If the complaint is sufficient to e......
  • Schmitt v. Osborne, No. 75-633
    • United States
    • United States State Supreme Court of Wisconsin
    • October 4, 1977
    ...between the parties." 4 Theune v. Sheboygan, 57 Wis.2d 417, 424, 204 N.W.2d 470 (1973); Draeger v. John Lubotsky Motor Sales, 56 Wis.2d 419, 423, 202 N.W.2d 20 (1972); D'Angelo v. Cornell Paperboard Products Co., 19 Wis.2d 390, 398, 120 N.W.2d 70 5 See Marshall v. Miles, 54 Wis.2d 155,......
  • Request a trial to view additional results
5 cases
  • Wangen v. Ford Motor Co., Nos. 77-893
    • United States
    • United States State Supreme Court of Wisconsin
    • June 27, 1980
    ...Inc., 97 Wis.2d 136, 143, 146, 293 N.W.2d 897, 901, 902 (of even date herewith). See also Draeger v. John Lubotsky Motor Sales, Inc., 56 Wis.2d 419, 202 N.W.2d 20 This court has rested its analysis of punitive damages not on the classification of the underlying tort justifying compensatory ......
  • Drake v. Wham-O Manufacturing Company, No. 73-C-622.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • March 29, 1974
    ...type of relief in Wisconsin, not a part of the claim itself, and is therefore not demurrable. Draeger v. John Lubotsky Motor Sales, Inc., 56 Wis.2d 419, 202 N.W.2d 20 (1972). The availability of the relief should be determined "upon a careful analysis of a record which has been complet......
  • Theune v. City of Sheboygan, No. 142
    • United States
    • United States State Supreme Court of Wisconsin
    • February 27, 1973
    ...the demurrer for failure to state a cause of action does not reach that question. Draeger v. John Lubotsky Motor Sales, Inc. (1972), 56 Wis.2d 419, 420, 202 N.W.2d 20; Hertz Corp. v. Red Rooster Cheese Co., Inc. (1972), 55 Wis.2d 701, 706, 200 N.W.2d 603. If the complaint is sufficient to e......
  • Schmitt v. Osborne, No. 75-633
    • United States
    • United States State Supreme Court of Wisconsin
    • October 4, 1977
    ...between the parties." 4 Theune v. Sheboygan, 57 Wis.2d 417, 424, 204 N.W.2d 470 (1973); Draeger v. John Lubotsky Motor Sales, 56 Wis.2d 419, 423, 202 N.W.2d 20 (1972); D'Angelo v. Cornell Paperboard Products Co., 19 Wis.2d 390, 398, 120 N.W.2d 70 5 See Marshall v. Miles, 54 Wis.2d 155,......
  • Request a trial to view additional results

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