
    Schumacher v. Siefert.
    (Decided May 26, 1930.)
    
      Messrs. J. B. & H. B. Snyder, for plaintiff in error.
    
      Mr. Fred C. Printy, for defendant in error.
   Sherick, J.

This is an error proceeding coming to this court from the municipal court of the city of Cleveland.

The parties to this action stand in an order the reverse of that occupied in the court below.

It is disclosed by the record that the defendant in error, Emma Siefert, was the owner of certain property located on West Eighty-First street in the city of Cleveland, adjoining which was located the property of the father of plaintiff in error, Charles GL Schumacher, and that the respective owners of these two lots had had difficulty and contention concerning the actual location of the dividing line of the properties.

It is further disclosed that on a date prior to August 11, 1928, the defendant in error had placed two stakes upon what she believed to be the dividing line of the properties, and had strung a wire from one post to the other. On the date mentioned the plaintiff in error pulled up the stake at the walk and drove into the ground certain surveyor’s stakes that had been located upon the supposed line.

A petition was filed in the municipal court charging the plaintiff in error with trespass upon the property of the defendant in error, and therein it is alleged that she was damaged thereby to the extent of $1,000.00. The answer filed in the case denies that the acts charged were committed by him, and denies that he has in any way injured the property of the defendant in error.

It is further charged in the petition, and denied in the answer, that the plaintiff in error’s acts were done with malice.

The cause was submitted to the court without the intervention of a jury, and it was found that no actual damages had been done to the land of the defendant in error, but the court further found that the acts complained of were purposely and maliciously done, and a judgment was entered against the plaintiff in error in the sum of $100 as punitive damages for the acts complained of.

A number of errors are complained of in this cause, but the only one strenuously insisted upon in this court is that the defendant in error is not entitled to recover punitive or exemplary damages until she shall have first shown that she has been actually damaged by the trespass. We do not find that this question has been heretofore adjudicated by an Ohio court; but the general rule applicable to the question seems to have been considered in many other jurisdictions, and we believe it to be the general rule that, if a plaintiff has suffered no actual damages or actual loss, he cannot maintain an action merely to recover punitive and exemplary damages, for there must be some actual damages sustained and shown although elements otherwise authorizing the assessment of exemplary damages may exist. A plaintiff surely has no right to maintain an action merely for the purpose of inflicting a punishment upon another, and exemplary damages are in no case a right of the plaintiff upon which an action may be founded in the absence of actual damage. To support such an action, there must be some actual damage, even if the same be no more than nominal.

The trial court in its decision on the matter in question clearly states that there is no proof of nominal or actual damages shown in this case, but it is found that the acts complained of were done with malice. It rather seems to this court that the trial court carried the assumption that it was his duty to impose a fine for destroying a fence, as provided in Section 12483 of the General Code; but it must be remembered that this was not a prosecution for a misdemeanor, but was an action in trespass for damages sustained to her estate.

We believe that numerous authorities fully support the view herein announced, and we direct particular attention to the case of Gilham v. Devereaux, 67 Mont., 75, 214 P., 606, 33 A. L. R., 381.

The note appended to the cases reported in 33 A. L. R., at page 384, is exhaustive, and lists many authorities.

The general rule is stated in the same language in 8 Ruling Case Law, page 593, Section 137; and also in 1 Sedgwick on Damages (9th Ed.), Section 361.

It is therefore the judgment of this court that this action be and the same is hereby reversed, and this court, coming now to enter the judgment that the trial court should have entered, enters final judgment for the plaintiff in error and judgment against the defendant in error for costs.

Judgment reversed and judgment for plaintiff in error.

Middleton and Mauck, JJ., concur.

Judge Sherick, of the Fifth Appellate District, and Judges Middleton and Mauck, of the Fourth Appellate District, sitting by designation in the Eighth Appellate District.  