Gilham v. Devereaux

• Decision Date: 16 April 1923
• Docket Number: 5137.
• Citation: 214 P. 606,67 Mont. 75
• Parties: GILHAM v. DEVEREAUX.
• Court: Montana Supreme Court

214 P. 606

67 Mont. 75

GILHAM v. DEVEREAUX.

No. 5137.

Supreme Court of Montana

April 16, 1923

Appeal from District Court, Cascade County; J. B. Leslie, Judge.

Action by Anthony C. Gilham against Charles Devereaux. Judgment for plaintiff, and defendant appeals. Reversed, with directions to dismiss complaint.

O'Leary & Doyle, of Great Falls, for appellant.

Kotz Molumby & Barlow, of Great Falls, and Anker O. Torrison, of Cut Bank, for respondent.

COOPER J.

The complaint is in two counts. The first charges that the defendant maliciously debauched and carnally knew Myrtle Upham Gilham, the wife of the plaintiff, without his knowledge or consent; the second that he alienated her affections, and deprived the plaintiff of her comfort society, and assistance, to his pecuniary damage in the sum of $20,000. It also asks the assessment of $10,000 as exemplary damages. At the end of the trial the jury returned the following verdict:

"We the jury in the above-entitled cause, find for the plaintiff, and assess his compensatory damages at none dollars and his punitive damages at two thousand and no/100 dollars."

From the judgment defendant appeals. The record consists of the pleadings, the testimony, the verdict, and the judgment. The only question sought to be reviewed is whether the allowance of no actual damages vitiates the award of punitory damages. Counsel for plaintiff have filed no brief.

The appellant's contention is that the judgment cannot be sustained because the jury expressly found that the plaintiff had suffered no actual damages, and that the award of $2,000 exemplary damages was unauthorized.

The foundation for the recovery of punitive or exemplary damages rests upon the fact that substantial damages have been sustained by the plaintiff. Punitive damages are not given as a matter of right, nor can they be made the basis of recovery independent of a showing which would entitle the plaintiff to an award of actual damages. Actual damages must be found as a predicate for exemplary damages. This is the rule announced in many authorities, as will be seen presently.

In Jones v. Matthews, 75 Tex. 1, 12 S.W. 823, the court said:

"We think it evident that the jury deliberately declined to find any actual damages, and intentionally returned the verdict for exemplary damages alone."

In Shore v. Shore, 111 Kan. 101, 205 P. 1027, the Supreme Court of Kansas remarked:

"This court is committed to the rule that punitive damages are never more than an incident to a cause of action for actual damages, and, when allowed, are allowed only in addition to recovered actual damages." See, also, R. C. L. vol. 1, "Damages," § 137.

In Hoagland v. Forest Park Highlands Amusement Co., 170 Mo. 335, 70 S.W. 878, 94 Am. St. Rep. 740, the plaintiff brought an action for his unlawful arrest and assault and battery by the employees of the defendant. The jury gave punitory but no compensatory damages. It was insisted that the judgment should be reversed because the jury gave no compensatory damages. The court said:

"It is held in 1 Sutherland on Damages (2d Ed.) § 406, and in Kiff v. Youmans, 86 N.Y. 324, 40 Am. Rep. 543; Stacey v. Pub. Co., 68 Me. 287; Freese v. Tripp, 70 Ill. 499; Maxwell v. Kennedy, 50 Wis. 648, 7 N.W. 657; Jones v. Matthews, 75 Tex. 1, 12 S.W. 823; Trawick v. Martin-Brown Co., 79 Tex. 466, 14 S.W. 584; Schippel v. Norton, 38 Kan. 567, 16 P. 804; Kuhn v. Railroad, 74 Iowa, 137, 37 N.W. 116; and Mills v. Taylor, 85 Mo.App. 111--that actual damages must be found as a predicate for the recovery of exemplary damages. The verdict, therefore, seems to be inconsistent with itself, for when no actual damage has been sustained, as found by the jury in the case at bar, no exemplary damages can be allowed, nor can exemplary damages constitute the basis of a cause of action, for they are mere incidents to it, and when given, they are not given upon any theory that the plaintiff has any just right to recover them, but are given only upon the theory that the defendant deserves punishment for his wrongful acts, and that it is proper for the public to impose them upon the defendant as punishment for such wrongful acts in the private action brought by the plaintiff for the recovery of the real and actual damages suffered by him. No right of action for exemplary damages, however, is ever given to any private individual who has suffered no real or actual damages. He has no right to maintain an action merely to inflict punishment upon some supposed wrongdoer. If he has no cause of action independent of a supposed right to recover exemplary damages, he has

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