242 Or at 360. An award of attorney fees was approved, however, in Williams v. Stockman's Life Ins., 250 Or. 160, 441 P.2d 608 (1968), a declaratory judgment action in which the insurer was the defendant. The trial court gave judgment for plaintiff for a specific amount, and granted attorney fees.

Accordingly, in reviewing this case on questions of fact we do so only to determine "if those findings have adequate support in the evidence." See, also: Oregon Farm Bureau v. Thompson, 235 Or. 162, 176, 378 P.2d 563, 384 P.2d 182 (1963); Williams v. Stockman's Life Ins., 250 Or. 160, 441, P.2d 608 (1968); Western Bank v. Morrill, 245 Or. 47, 61-62, 420 P.2d 119 (1966). STATEMENT OF FACTS

First National Bank v. Malady, 242 Or. 353, 408 P.2d 724 (1965). However, where the insured seeks both declaratory relief and a money judgment under a policy of insurance, and the insured recovers a money judgment, attorneys' fees are allowed. Williams v. Stockman's Life Ins., 250 Or. 160, 441 P.2d 608 (1968); Hardware Mutual Cas. Co. v. Farmers Ins. Exchange, 256 Or. 599, 474 P.2d 316 (1970). Here, CH2M sought both a declaratory judgment and recovery of the expenses incurred during the defense of M S's claim.

In that case, the source of the insured's claim was "the insurance policy, as it would be if the company had never advanced the money and thereafter demanded its return." Id. ; see also Williams v. Stockman's Life Ins. , 250 Or. 160, 172, 441 P.2d 608 (1968) (insured was entitled to attorney fees under predecessor to ORS 742.061 after prevailing in action with "declaratory judgment overtones," because the "essential nature" of the action was to recover under the insurance policy).The determinative question is thus the source of the insured's claim.

Since the issue of sufficiency of the evidence to establish abuse of privilege was first presented during appellees' motion for judgment N.O.V. and was not raised in the original motion for a directed verdict, the issue was raised too late to be the subject of review. See Williams v. Town of Silver City, 84 N.M. 279, 502 P.2d 304 (Ct.App.), cert. denied, 84 N.M. 271, 502 P.2d 296 (1972); Williams v. Stockman's Life Insurance Company, 250 Or. 160, 441 P.2d 608 (1968). I, next, turn to an analysis of whether Bookout was entitled to any damages.

We reversed the denial of attorney fees. We noted that Williams v. Stockman's Life Ins., 250 Or. 160, 441 P.2d 608 (1968), was a declaratory judgment proceeding in which the insured was awarded attorney fees. We stated:

1 Appleman, Insurance Law and Practice 29-31, § 20 (Supp 1976). To the same effect see McDaniel v. Ins. Co. of Oregon, 243 Or. 1, 410 P.2d 814 (1966); Williams v. Stockman's Life Ins., 250 Or. 160, 441 P.2d 608 (1968); Hayes Truck Lines v. Investors Ins., 269 Or. 565, 525 P.2d 1289 (1974). In McDaniel v. Ins. Co. of Oregon, supra, the defendant insurance company made the same contention; namely, that no one but the creditor could receive payment under the insurance policy.

The complaint also alleged facts sufficient to support an award of punitive damages. Defendant contends that "nowhere in the complaint do the plaintiffs allege that the representations were willful, malicious or recklessly made, nor do they allege that they are entitled to punitive damages"; that the allegations of this complaint are "almost identical" to the allegations held to be insufficient in Cays v. McDaniel, 204 Or. 449, 283 P.2d 658 (1955), and that the prayer of the complaint for punitive damages is "to no avail" because the prayer is "no part of the cause of suit or action," as held in Williams v. Stockman's Life Insurance, 250 Or. 160, 441 P.2d 608 (1968). Defendant is correct in contending that a prayer for punitive damages is not sufficient of itself to support an award of punitive damages.

The prayer is no part of the cause of action, and the facts pleaded are sufficient to state a cause of action. Williams v. Stockman's Life Insurance, 250 Or. 160, 167, 441 P.2d 608 (1968); Elliott v. Mosgrove, 162 Or. 507, 542-43, 91 P.2d 852, 93 P.2d 1070 (1939). Defendant may not obtain a double recovery, nor may it have its claim of lost profits submitted to the jury, because that claim was submitted and resolved against it.

Accord, Benefit Trust Life Insurance Company v. Baker, 487 S.W.2d 406 (Tex Civ App 1972); Mutual Life Insurance Co. v. Marsh, 186 Ark. 861, 56 S.W.2d 433 (1933). See also, Williams v. Stockman's Life Ins., 250 Or. 160, 172, 441 P.2d 608 (1968).