Widemshek v. Fale
| Decision Date | 02 October 1962 |
| Citation | 117 N.W.2d 275,17 Wis.2d 337 |
| Parties | John WIDEMSHEK, Appellant, v. Henry F. FALE, Respondent, |
| Court | Wisconsin Supreme Court |
Max E. Geline, Milwaukee, for appellant.
Ben E. Salinsky, Milwaukee, for respondent.
The issues plaintff raises on this appeal are whether he is entitled to recover damages, compensatory, nominal or punitive, against defendant by reason of his failure to obtain a first mortgage on the property, and whether the negligent or fraudulent acts of the defendant entitled plaintiff to recover necessary attorney's fees and other expenses that he incurred in seeking to establish the liability of defendant.
An attorney negligent in the performance of his duties to his client is liable for all the damages sustained as a proximate result of his negligence. 7 C.J.S. Attorney and Client § 157, p. 1003. Thus, if he is negligent in the examination of title to real property he is liable in damages. 7 C.J.S. Attorney and Client § 157, p. 1003 supra.
The causes of action of plaintiff for negligence or for fraud turn on the question of whether he sustained any actual or compensatory damage by reason of the Hilpertshauser judgment. Actual damage is an essential element in the cause of action based on negligence or on fraud. Hasbrouck v. Armour & Co. (1909), 139 Wis. 357, 121 N.W. 157, 23 L.R.A.,N.S., 876 (negligence). Also Prosser, Torts (2d ed. 1955), p. 105. With respect to punitive damages, we have held that actual damage must have been suffered before an award of punitive damages can be given. Hahn v. Petters & Co. (1926), 189 Wis. 145, 207 N.W. 291; Stephens v. Wheeler (1927), 193 Wis. 164, 213 N.W. 464.
Nominal damages were not awarded by the trial court nor did it pass upon this issue, apparently because plaintiff did not pray for nominal damages either in his original complaint or in his amended complaint. Plaintiff is not entitled to nominal damages for he has not established a cause of action by either complaint by which the law presumes damages to exist.
A purpose of obtaining the first mortgage on the tavern property was to protect an original obligation owing to plaintiff. In case of default on the original obligation plaintiff would be able to recover his mortgage interest, and in full of possible. The existence of a prior lien to the mortgage would tend to reduce the possibility of plaintiff recovering his mortgage interest. If the payment of the lien resulted in only a partial recovery of the mortgage interest then the plaintiff would have sustained actual damage by reason of the lien. The existence of the lien in this case, however, was only a potential damage to plaintiff which never ripened into actual damage, for plaintiff did, in fact, recover his mortgage interest in full. Also, plaintiff does not allege by his complaint or by his proferred amended complaint that prior to the recovery of his mortgage interest the presence of the lien on the tavern did actually reduce the value of the security below the amount of the debt.
Appellant relies on Bayerl v. Smyth (1937), 117 N.J.L. 412, 189 A. 93, and Gardner v. Wood (1902), 37 Misc. 93, 74 N.Y.S. 750, as authority for his contention that he suffered damages due to the failure of the attorney to inform him of the Hilpertshauser lien. The facts in these cases are readily distinguishable from those in the present case. In the Bayerl Case the purchaser of the property, unaware of his outstanding lien, sustained actual damages because when he later sold the property he had to satisfy that lien, and the amount of consideration he received in his original purchase of the property was reduced by the amount of the lien. In the Gardner Case, plaintiff, owner of a second mortgage, was unaware of a prior mortgage on the same property until after the institution of foreclosure proceedings on the first mortgage. The property sold in that mortgage foreclosure was not even sufficient to satisfy the first mortgage, and plaintiff was left without any recovery of his mortgage interest.
Appellant also relies on the case of Laehn Coal & Wood Co. v. Koehler (1954), 267 Wis. 297, 64 N.W.2d 823, but this case is also distinguishable from the case at bar for in that case the attorney for the purchaser at a public sale failed to inform him of an outstanding lien, whereas in the present case the plaintiff had knowledge of the lien at the foreclosure sale. We dismissed the appeal in that case on the ground that the complaint was totally defective because it failed to state that the alleged concealment constituted...
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Tucker v. Marcus
...damages before punitive damages may be awarded." 51 Wis.2d at 474, 187 N.W.2d 151 (emphasis added) (citing Widemshek v. Fale, 17 Wis.2d 337, 117 N.W.2d 275 (1962)). In Hanson, punitive damages were not available because the "cause of action" for damages for the loss of marital services was ......
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...243 N.Y.S.2d 368 (1963); Cf. Winkler v. Hartford Acc. & Indem. Co., 66 N.J.Super. 22, 29, 168 A.2d 418, 422 (1961); Widemshek v. Fale, 17 Wis. 2d 337, 117 N.W.2d 275 (1962); see generally, annot. 17 A.L.R.2d 527-550. As indicated some state courts hold that a claim for exemplary damages alo......
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