Draeger v. John Lubotsky Motor Sales, Inc.

56 Wis. 2d 419 (1972) 202 N.W.2d 20

DRAEGER, Appellant,
v.
JOHN LUBOTSKY MOTOR SALES, INC., and others, Respondents.

No. 224.

Supreme Court of Wisconsin.

Argued October 31, 1972. Decided November 28, 1972.

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.

HANLEY, J.

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.