In a similar case, the jury returned a verdict for the plaintiff, with "`actual damages at the sum of $ ___ and exemplary or punitive damages at the sum of nine hundred dollars ($900).'" Kroger Grocery Baking Co. v. Reeves, 210 Ark. 178, 179, 194 S.W.2d 876, 876 (1946) (quoting jury verdict). The trial judge entered a verdict of $900.00, and the defendant appealed.
That being said, it is also true that punitive damages are dependent upon the recovery of compensatory damages, as an award of actual damages is a predicate for the recovery of punitive damages. See Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991); Kroger Grocery & Baking Co. v. Reeves, 210 Ark. 178, 194 S.W.2d 876 (1946). Moreover, we have observed that the issues of compensatory damages and punitive damages are so interwoven that an error with respect to one requires a retrial of the whole case.
The jury found for the plaintiff but, as here, denied compensatory damages while awarding punitive damages of $75,000. The trial court denied plaintiff's motion for a new trial and this court unanimously reversed, citing Kroger Grocery Baking Co. v. Reeves, 210 Ark. 178, 194 S.W.2d 876 (1946). Appellee relies on Bell v. McManus, 294 Ark. 275, 742 S.W.2d 559 (1988), where we affirmed the denial of a new trial under similar circumstances.
The law is settled that exemplary or punitive damages is dependent upon the recovery of actual damages. Kroger Grocery Baking Co. v. Reeves, 210 Ark. 178, 194 S.W.2d 876 (1946); Williams v. Walker, 256 Ark. 421, 508 S.W.2d 52 (1974). Nominal damages will not support a punitive award.
We have held that punitive damages are not recoverable unless compensatory damages not only have been suffered by the plaintiff but also have been assessed by the jury. Southern Farm Bureau Cas. Ins. Co. v. Daniel, 246 Ark. 849, 440 S.W.2d 582 (1969); Kroger Gro. Baking Co. v. Reeves, 210 Ark. 178, 1194 S.W.2d 876 (1946). That holding necessarily means that the jury must make separate awards of compensatory damages and punitive damages, else it becomes impossible for a court to say whether the award of punitive damages is supported by the essential companion award of compensatory damages.
The question, however, is still whether Williams proved his assertion of actual damage caused by ordinary negligence; because "the recovery of exemplary damages is dependent upon the recovery of actual damages." Kroger Gro. Baking Co. v. Reeves, 210 Ark. 178, 194 S.W.2d 876 (1946). The issue raised by Williams' complaint was whether Walker negligently failed to report the fire promptly, but Williams' evidence was not pertinent to that issue of negligence.
Such courts, Lazenby v. Universal Underwriters Ins. Co, 214 Tenn. 639, 383 S.W.2d 1 (1964), place much less emphasis on the punishment aspect of punitive damages and permit a recovery under language similar to that involved here. They point out that there is nothing to prevent the insurer from excluding the payment of punitive damages by appropriate policy provisions. Our cases, Kroger Grocery Baking Co. v. Reeves, 210 Ark. 178, 194 S.W.2d 876 (1946), hold that there can be no recovery for punitive damages unless actual damages are suffered and assessed. Such damages have been defines as damages imposed by way of punishment and as those given or awarded in view of the supposed aggravation of the injury to the feelings of the plaintiff by the wanton or reckless conduct of the defendant.
When a plaintiff is awarded a judgment based on punitive damages, it is somewhat of a windfall for him, because punitive damages cannot be assessed unless compensatory damages are awarded. Kroger Gro. Banking Co. v. Reeves, 210 Ark. 178, 194 S.W.2d 876. By adopting the majority view, it is possible that one wrongfully publishing a libel may go unpunished by not having a judgment for punitive damages rendered against him.
Wigmore on Evidence (3d Ed.), 1179 and 1532. The appellants also sought reimbursement for their attorney's fees in connection with the dissolution of the injunction, but under our decisions this expense is not recoverable. McDaniel v. Crabtree, 21 Ark. 431; Citizens' Pipe Line Co. v. Twin City Pipe Line Co., 183 Ark. 1006, 39 S.W.2d 1017. Nor can punitive damages be recovered in the absence of an award of actual damages. Kroger Gro. Baking Co. v. Reeves, 210 Ark. 178, 194 S.W.2d 876. Doubtless the appellants were entitled to nominal damages; but the chancellor awarded them their costs, and in an equity case, where the costs have been properly assessed in the trial court, nominal damages are not allowed on appeal for the sole purpose of charging the appellee with the costs in this court.
Appellants argue that the size of the verdict shows conclusively that something was allowed as exemplary damages. Our cases hold that, as a predicate for exemplary awards, actual damages must be found. Kroger Grocery Baking Co. v. Reeves, 210 Ark. 178, 194 S.W.2d 876. What the rule rejects is punishment where actual injury has not been shown. In the case at bar serious trauma is undisputed and was sufficient for substantial recovery.