Summary
In Draeger there was no need to consider punitive damages as a separate claim because the claim for compensatory damages was grounded on fraud.
Summary of this case from Wangen v. Ford Motor Co.Opinion
No. 224.
Argued October 31, 1972. —
Decided November 28, 1972.
APPEAL from part of an order of the circuit court for Milwaukee county: HARVEY L. NEELEN, Circuit Judge. Reversed.
For the appellant there was a brief and oral argument by Bruce C. O'Neill of Milwaukee.
For the respondents John Lubotsky Motor Sales, Inc., and Sam Marcus there was a brief and oral argument by Dominick D. Zurlo of Milwaukee.
This is an action for fraudulent inducement to enter into an automobile purchase contract. The plaintiff, Janice Draeger, seeks both compensatory and punitive damages.
The plaintiff commenced her action by the service of a summons and complaint on all three defendants in September of 1970. The defendants successfully demurred to the complaint on the ground that it failed to state a cause of action. Thereafter, on March 11, 1971, the plaintiff served an amended complaint.
In material part, the amended complaint alleged that the defendant, Sam Marcus (hereinafter "Marcus.") and the defendant John Schmeichel (hereinafter "Schmeichel") were employed as the general-manager and business manager respectively, by the defendant John Lubotsky Motor Sales, Inc. (hereinafter "Lubotsky Motors"). Plaintiff then alleged that on May 9, 1969, she purchased a used 1966 Chrysler automobile from Lubotsky Motors for the price of $1,945.95 together with sales tax of $48.15, and that she was given a trade-in credit on her 1962 Buick in the amount of $350. The delivery of the Chrysler was delayed until May 12th in that one Paul Richardson, a used car salesman for Lubotsky Motors agreed to repair the right front wheel on the Chrysler and that such agreement was a condition of the sale. The next allegation of the complaint is that several hours after plaintiff picked up the Chrysler, she returned with it because the right front wheel was still defective and had not been repaired and demanded that it either be repaired or that its purchase be set aside and her Buick returned. Plaintiff then alleges that although Lubotsky Motors, through its agents, refused to comply with either of these demands, Marcus falsely and fraudulently represented that Lubotsky Motors was willing to cancel the sale of the Chrysler and give her credit on her trade-in if plaintiff purchased a new car. Although this representation, says plaintiff, was made by defendant Lubotsky Motors through its agent, defendant Marcus, they, in fact, were not willing to and had no intention of cancelling the sale and purchase of the Chrysler or of giving her any credit for her previous trade-in; and these representations were made by defendants with knowledge that plaintiff would rely on them and that plaintiff did, in fact, rely on them.
Immediately subsequent to the events referred to above, the defendant Marcus and the defendant Lubotsky, through its agent Marcus, offered to sell and plaintiff agreed to buy a new 1969 Valiant Signet automobile at a price of $2,929.85 together with sales tax of $42 and these same representations were again made to her as an inducement to enter into the contract. The complaint goes on to allege that on the following day, defendants Marcus, Schmeichel and the defendant Lubotsky Motors, through its agents, Marcus and Schmeichel, prepared a written contract in the presence of plaintiff, which was entered into by the parties and which contract falsely and fraudulently represented that Lubotsky Motors was selling the Valiant to the plaintiff at a price of $2,929.85, upon which purchase price the defendant was crediting plaintiff with $381.75 on her previous trade-in, when, in fact, said defendants knew that instead of a credit on her previous trade-in, plaintiff was charged an additional $118.25 for interest charges upon her purported trade-in of the Chrysler automobile. Similarly, plaintiff alleges that the defendants represented that they would arrange for financing from the credit union of the Milwaukee Road, but in fact did not intend to and did not attempt to contact the credit union, but rather intended to alter the written contract to reflect that the purchase price of the Valiant was being personally financed by the defendant Lubotsky Motors with interest charges in excess of those obtainable from the credit union.
The complaint alleges that shortly after these fraudulent representations, the defendants falsely and fraudulently altered the written copy referred to above, preparing a typewritten copy of the contract reflecting these alterations, and that because of her highly disturbed and agitated state of mind, the defendants were able to obtain her signature to the typewritten contract without her knowledge of what she was signing. Thereafter, when the content of these contracts was disclosed by plaintiff to Lory Lubotsky, president of Lubotsky Motors, he ratified the conduct of defendants Marcus and Schmeichel.
Upon these facts, plaintiff's prayer for relief seeks compensatory damages in the amount of $983.35 against all of the defendants and punitive damages in the amount of $50,000 against the defendant Lubotsky Motors and $25,000 each against defendants Marcus and Schmeichel.
The defendants demurred to the amended complaint on the grounds that it failed to state facts sufficient to constitute a cause of action; and, alternatively, that the amended complaint did not state a cause of action for punitive damages. After a hearing, the trial court overruled the first part of the demurrers, holding that the amended complaint did state a cause of action for fraud, but sustained the second part of the demurrers, holding that the amended complaint did not state a cause of action for punitive damages. Appellant appeals from the second part of the order only.
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, 187 N.W.2d 200, 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 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, at page 295 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.
By the Court. — Order reversed and cause remanded for further proceedings.