OPINION ON MOTION FOR REHEARING. (Filed July 24, 1936.) It is argued on behalf of the plaintiff that, since the jury found on conflicting evidence on the issue of fraudulent representation, *Page 588 plaintiff, even in the absence of any proof of damage, is entitled to have the cause remanded in order to recover at least nominal damages, and that therefore we should not order the case dismissed. In support of their contention that the case should not be ordered dismissed, counsel rely upon certain statements found in the opinion of this court in the case of State ex rel.La France Copper Co. v. District Court, 40 Mont. 206,105 P. 721, 723. There the court had under consideration the propriety of ordering a dismissal on the merits after it had decided that a motion for nonsuit should have been granted. Following a discussion of the rule applicable to cases involving a motion for nonsuit, the court made this observation: "When a judgment for the plaintiff is reversed for error in refusing to direct a verdict for the defendant, after the former has had full opportunity to introduce all of his evidence, and it appears that his case is not supplemented by the defendant, we apprehend that, even in actions at law, the instances must be rare in which this court will hereafter feel justified in refusing to make a final disposition of the cause."
Among the other cases relied upon is the case of Broderick v. Stevenson Consolidated Oil Co., 88 Mont. 34, 290 P. 244. There the trial court had tried the cause upon a theory of law announced in a previous decision of this court and expressly overruled by it subsequent to the trial but prior to the appeal then under consideration. The court accordingly held that it was proper to reverse the case and remand it for a new trial. In the equity case of Hurley v. O'Neill, 26 Mont. 269, 67 P. 626, the trial court's order excluding certain testimony rendered it necessary to send the case back for new trial. The case ofAlley v. Butte Western Min. Co., 77 Mont. 477,251 P. 517, was remanded for further proceedings, but only to determine the amount of a reasonable attorney's fee; the judgment was otherwise ordered by this court. The case of Rickards v.Aultman Taylor Machinery Co., 64 Mont. 394, 210 P. 82, was reversed and the cause remanded for new trial; *Page 589 it does not, however, appear from the opinion that a motion for a directed verdict was made. Hence, it will be observed, none of these cases involved a question similar to the one now before us. In the case before us the plaintiff was permitted to offer all of her proposed evidence.
Nominal damages would not entitle the plaintiff to recover[6-9] costs under the provisions of section 9787, Revised Codes. The right to recover nominal damages, if no other rights are involved, is not a substantial right, since this court has held that a judgment for the defendant will not be reversed and a new trial granted merely to enable the appellant to recover nominal damages. (McCauley v. McKeig, 8 Mont. 389,21 P. 22; Wallace v. Weaver, 47 Mont. 437, 133 P. 1099; Robb v.Porter, 65 Mont. 460, 211 P. 210.)
In 8 R.C.L. 426, it is said: "As a general rule nominal damages, as such, are recoverable only in cases where damages are not the gist of the action, that is, in cases primarily designed to secure the plaintiff's right from invasion; and so it is, where the sole object of the action is the recovery of damages, a failure to prove substantial damage is a failure to prove the substance of the issue. In such a case, where there is no inherent personal or property right to determine, the plaintiff is not entitled to nominal damages, even though the evidence might justify a verdict for nominal damages if such right were involved." The following authorities support the text: Swift Co. v. Newport News, 105 Va. 108, 52 S.E. 821, 3 L.R.A. (n.s.) 404; Woodhouse v. Powles, 43 Wash. 617, 86 P. 1063, 117 Am. St. Rep. 1079, 11 Ann. Cas. 54, 8 L.R.A. (n.s.) 783; Lawson v.Sigfrid, 83 Colo. 116, 262 P. 1018. The case before us involves no inherent personal or property right. The gist of the action is damages.
Counsel have invited our attention to a few cases containing some general statements which might be construed to be somewhat in conflict with the foregoing rules. In each of those cases, however, an inherent personal or property right was under consideration. Where the gist of the action was damages, *Page 590 as it is here, a failure to prove actual damages was a failure of proof.
Therefore the motion for rehearing is denied.
ASSOCIATE JUSTICES MATTHEWS, STEWART and MORRIS concur.