On Petition for Rehearing.
Per, Curiam :Appellants have filed a petition for rehearing.
It is first contended that the court failed to decide the question of *172the right of Peter Neva to- counterclaim for damages claimed to have been sustained by said Peter Neva during the altercation with the plaintiff. And in this connection it is contended that “there was strong testimony tending to show that the plaintiff provoked and began the assault.” The question of defendant’s liability was submitted to the jury under appropriate instructions. The jury was instructed that the plaintiff must establish his cause of action by a preponderance of the evidence. It is inconceivable that a jury could under these- instructions have returned a verdict in favor of the plaintiff if it had actually believed him to be the aggressor and the defendant Peter Neva to have been the innocent and injured party. It seems too clear for argument that the error, if any in sustaining the demurrer to the counterclaim was error without prejudice.
It is also contended that the court failed to pass upon the question of the admissibility in evidence of the justice’s docket containing the record of the admission of guilt of Peter Neva in the prosecution for assault and battery. As stated in the former opinion this docket was withdrawn, and we are agreed that the error, if any, in its admission, was cured by such withdrawal.
It is also contended that the court failed to pass upon the question of whether the verdict for exemplary damages returned against, the defendant Joe Koenig can be permitted to stand in view of the fact that the jury returned no verdict for actual damages against him. This point was overlooked in the former opinion. We are entirely agreed with appellant’s counsel that exemplary damages cannot be awarded unless actual damages in some amount, either nominal or compensatory, are proved. It is time the jury in this case did not in its verdict assess actual damages against the defendant Joe Koenig, but in special interrogatories submitted to the jury and returned with its verdict it specifically found both that the injuries inflicted upon the plaintiff by Peter Neva were inflicted by him pursuant to a conspiracy between all three defendants, Peter Neva, John Neva, and Joe Koenig-,, and that all these three parties worked in conjunction with each other. Under these facts as found by the jury the plaintiff was clearly entitled to recover actual damages against the defendant Joe Koenig, and according to the jury’s own finding such actual damages had been proved. The error on the part of the jury, therefore, in not assessing actual damages *173against Joe Koenig was clearly error in bis favor, of wbicb be ought not to complain.
We are satisfied that tbe verdict was just and right.
A rehearing is denied.