97 Wis.2d 260 (1980) 294 N.W.2d 437

Terri WANGEN, a minor, by her guardian, Charles R. Wangen, Charles R. Wangen, Special Administrator of the Estate of Christopher DuVall, deceased, Charles R. Wangen, Special Administrator of the Estate of Kip Wangen, deceased, Charles R. Wangen, individually and Ramona M. Wangen, Plaintiffs-Respondents,
v.
FORD MOTOR COMPANY, Defendant-Appellant-Petitioner, and Robin DUVALL, Patrick J. Hawley, Allstate Insurance Company, American Family Mutual Insurance Co., Thomas J. Curran, Milwaukee Mutual Insurance Co., and Republic National Life Insurance Co., Defendants.
Robin DUVALL, Plaintiff-Respondent,
v.
FORD MOTOR COMPANY, Defendant-Appellant-Petitioner, and Patrick HAWLEY, Allstate Insurance Company, Thomas Curran and Milwaukee Mutual Insurance Co., Defendants.

Nos. 77-893, 77-894.

Supreme Court of Wisconsin.

Argued January 7, 1980. Decided June 27, 1980.

*262 For the appellant there were briefs by Walter L. Merten, Paul E. Schwemer and Merten & Schwemer, S.C., of Milwaukee, and oral argument by Walter L. Merten and Paul E. Schwemer.

For respondents, Terri Wangen, Charles R. Wangen and Ramona M. Wangen, there was a brief by D. G. Graff Law Offices, S.C., of Madison, and oral argument by D. G. Graff; Johnson, Swingen & Sandell and Easton & Harms, S.C., of counsel, all of Madison, for respondent, Robin DuVall, join in the brief.

Originally reported in 91 Wis.2d 848, 284 N.W.2d 120.

SHIRLEY S. ABRAHAMSON, J.

The central question on appeal is whether punitive damages are recoverable in a product liability suit based on negligence or strict liability in tort (sometimes referred to as strict products liability). We conclude that they are recoverable.

I.

This appeal involves two lawsuits which were commenced against Ford Motor Company and others as a result of an automobile accident on July 1, 1975 involving a 1967 Ford Mustang. The cases were consolidated *263 and are before us at the pleading stage; all facts set forth are derived from the pleadings.

The occupants of the 1967 Ford Mustang involved in the accident were Robin DuVall, the driver, Terri Wangen, her sister, Kip Wangen, her brother, and Christopher DuVall, her son. Robin DuVall stopped her 1967 Ford Mustang at an intersection to make a left turn, and a car driven by Patrick J. Hawley ran into the rear end of the Mustang. The DuVall Mustang was pushed into the opposite lane of travel where it collided with a car driven by Thomas J. Curran. The Mustang's fuel tank ruptured, a fire ensued, and all occupants of the Mustang sustained severe injuries. Christopher DuVall and Kip Wangen died as a result of their injuries.

Two lawsuits were commenced. One is by Terri Wangen and Charles R. Wangen, as special administrator of the estates of Christopher DuVall and Kip Wangen, and Charles R. Wangen and Ramona M. Wangen, individually, against Ford Motor Company, Hawley, Curran, Robin DuVall and their respective insurance carriers. The second lawsuit is by Robin DuVall against Ford Motor Company, Hawley, Curran and their respective insurance carriers.

Plaintiffs in both lawsuits seek compensatory damages from all named defendants and punitive damages from Ford Motor Company.

The claim for compensatory damages against Ford is based on Ford's alleged negligence in the design, manufacture, assembly, sale and distribution of the 1967 Mustang and on Ford's strict liability in tort arising out of the sale of the 1967 Mustang in a defective condition unreasonably dangerous to users. Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967).

The allegations in support of recovery of punitive damages from Ford Motor Company are that Ford knew that the fuel tanks on this and other 1967 Mustangs were dangerously defective before and after the manufacture of the car in question; that corrective design changes *264 were made in models manufactured after this particular model but prior to the date of the instant accident; that Ford failed to warn users of the car of the potential danger both after the danger became apparent and after Ford had changed the design to reduce the danger; that Ford failed to recall, repair or modify the defective vehicles after the defect became apparent in order to avoid the expense of those procedures and to prevent potential lost sales caused by adverse publicity; and that Ford's conduct in failing to warn, repair or recall the known defective vehicles constituted intentional, deliberate, reckless, willful, wanton, gross, callous, malicious and fraudulent disregard for the safety of users of Ford's product.

Ford Motor Company moved to dismiss all allegations in both complaints relating to punitive damages under sec. 802.06(2)(f), Stats., on the ground that the complaints for punitive damages fail to state a claim against the defendant, Ford Motor Company, upon which relief can be granted.^[1] The circuit court denied Ford's motion, concluding that punitive damages may be awarded in product liability cases given a satisfactory evidentiary basis. Review of the circuit court's order was sought, and the court of appeals, in an unpublished decision (May 31, 1979) divided the complaint for punitive damages into five categories of actions and concluded that punitive damages are recoverable in some and not in others. Specifically the court of appeals concluded (1) punitive damages are recoverable in a products liability suit for compensatory damages predicated on strict liability in tort; (2) punitive damages are not recoverable in a product liability suit for compensatory damages predicated on negligence; (3) punitive damages are recoverable in an action which survives the death of the injured person; (4) punitive damages are not recoverable *265 in a wrongful death action; and (5) punitive damages are recoverable by parents in an action for damages for loss of society and companionship of a child but not in an action for damages for loss of the minor's earning capacity and medical expenses. We hold that the complaints state a claim for punitive damages in each of these five categories except number (4), the wrongful death action.^[2]

We shall turn first to the question of whether punitive damages are recoverable in a product liability action predicated on negligence or strict liability, and we shall turn then to recovery of punitive damages in a survival action, in a wrongful death action, and in an action by a parent for damages resulting from injury to a child.

II.

Ford Motor Company's argument that punitive damages have no place in product liability cases rests on three grounds: (A) Punitive damages have traditionally been awarded in tort actions in which compensatory damages are premised on defendant's commission of an intentional, personal tort, and recovery of punitive damages should not be allowed in product liability suits in which compensatory damages are premised on the defendant's negligence or on strict liability. (B) The claim for punitive damages characterizing Ford's conduct as willful, deliberate, wanton, malicious, and reckless—all elements of gross negligence—is insufficient because the concept of gross negligence has been abolished in Wisconsin. (C) Punitive damages are unnecessary in product *266 liability cases to effect punishment and deterrence, which are the objectives of imposing punitive damages in the traditional tort action, and the elimination of punitive damages in all products liability cases is in the public interest because the recovery of punitive damages produces economically and socially undesirable results.

A.

Ford Motor Company asserts that punitive damages are recoverable only in actions based on intentional, personal torts, and are not recoverable in product liability actions which are grounded in negligence or strict liability. Ford argues that the concept of punitive damages is antithetical to the theories of negligence and strict liability because punitive damages are based on the defendant's intentional conduct. Ford's argument is premised on two assumptions: that intentional conduct is the only conduct justifying punitive damages and that the same facts which justify compensatory damages must be sufficient to justify punitive damages. This court has never adopted this view of punitive damages.

Punitive damages are in the nature of "a demand arising out of a single injurious occurrence," a "theory of relief arising out of the same transaction or occurrence," a "remedy." Wussow v. Commercial Mechanisms, Inc., 97 Wis.2d 136, 143, 293 N.W.2d 897 (of even date herewith). See also Draeger v. John Lubotsky Motor Sales, Inc., 56 Wis.2d 419, 202 N.W.2d 20 (1972).

This court has rested its analysis of punitive damages not on the classification of the underlying tort justifying compensatory damages but on the nature of the wrongdoer's conduct.^[3] Although the usual aggravating circumstances *267 required for the recovery of punitive damages are often found as substantive elements of the tort itself, this court has said a claim for punitive damages may be supported by proof of aggravating circumstances beyond those supporting compensatory damages.

Punitive damages rest on allegations which, if proved, demonstrate a particular kind of conduct on the part of the wrongdoer, which has variously been characterized in our cases as malicious conduct or willful or wanton conduct in reckless disregard of rights or interests.

This court has not required proof of an intentional desire to injure, vex or annoy, or proof of malice, in order to sustain an award for punitive damages. "[M]alice or vindictiveness are not the sine qua non of punitive damages." Kink v. Combs, 28 Wis.2d 65, 79, 135 N.W.2d 789 (1965). It is sufficient if the injured party shows a reckless indifference to or disregard of the rights of others on the part of the wrongdoer. "Reckless indifference to the rights of others and conscious action in deliberate disregard of them ... may provide the necessary state of mind to justify punitive damages." 4 Restatement (Second) of Torts sec. 908, comment b, p. 465 (1977). Some commentators speak of the behavior justifying punitive damages as "flagrant indifference to the public safety." Interagency Task Force on Product Liability, Product Liability: Final Report of the Legal Study (U. S. Dept. of Commerce 1977), vol. 5, p. 137. See Fahrenberg v. Tengel, 96 Wis.2d 211, 221, 291 N.W.2d 526 (1980); Anderson v. Continental Ins. Co., 85 Wis.2d 675, 697, 271 N.W.2d 368 (1978); Herrmeyer v. *268 Kleeman, 76 Wis.2d 410, 414, 251 N.W.2d 445 (1977); Mid-Continent Refrigerator Co. v. Straka, 47 Wis.2d 739, 744-748, 178 N.W.2d 28 (1970); Jones v. Fisher, 42 Wis.2d 209, 218, 219, 166 N.W.2d 175 (1969); McCormick on Damages sec. 79, p. 280 (1935); Prosser, Law of Torts 10 (4th ed. 1971). "A governing principle of these cases in allowing punitive damages has been the presence of `circumstances of aggravation' in the tortious injury." Mid-Continent Refrigerator Co. v. Straka, 47 Wis.2d 739, 746, 178 N.W.2d 28 (1970). We shall sometimes use the term "outrageous" in this opinion as an abbreviation for the type of conduct which justifies the imposition of punitive damages.

The distinction between the intent necessary to maintain an action for an intentional tort and the frame of mind of the wrongdoer necessary to recover punitive damages was delineated in Meshane v. Second Street Co., 197 Wis. 382, 387, 222 N.W. 320 (1928) as follows:

"Any exact and precise definition of the technical term in law of the `malice' that must be shown in order that there may be a basis for punitory damages in addition to compensatory damages for a breach of some duty by a defendant when such is the proper subject of an action in tort, is hard to find and still harder to frame. It is evident, however, from all the authorities that in any particular case, not in and of itself a malicious action, in order that punitory damages may be assessed something must be shown over and above the mere breach of duty for which compensatory damages can be given. That is, a showing of a bad intent deserving punishment, or something in the nature of special ill will towards the person injured, or a wanton, deliberate disregard of the particular duty then being breached, or that which resembles gross as distinguished from ordinary negligence." [Quoted with approval in Mid-Continent Refrigerator Co. v. Straka, 47 Wis.2d 739, 747, 178 N.W.2d 28 (1970).]

In Etzminger v. Ford Motor Co., 47 Wis.2d 751, 757-758, 177 N.W.2d 899 (1970) this court made clear that *269 the award of punitive damages depends on the character of the particular conduct in question, not on the mere fact that the defendant's conduct constituted a tort or a crime:

"Punitive damages are not allowed for a mere breach of contract ... or for all torts or for crimes but generally for those personal torts, which are malicious, outrageous or a wanton disregard of personal rights which require the added sanction of a punitive damage to deter others from committing acts against human dignity ...."

In Anderson v. Continental Ins. Co., 85 Wis.2d 675, 697, 271 N.W.2d 368 (1978), we stated that proof of an intentional tort in an action for compensatory damages does not necessarily mean that an award of punitive damages is appropriate.

"We do not conclude, however, that the proof of a bad faith cause of action necessarily makes punitive damages appropriate. Punitive damages are awarded to punish a wrongdoer and to serve as a deterrent. Mid-Continent Refrigerator Co. v. Straka, 47 Wis.2d 739, 746, 178 N.W. 2d 28 (1970). We pointed out in Mid-Continent that punitive damages are to be awarded `only where the wrong was inflicted "under circumstances of aggravation, insult or cruelty, with vindictiveness or malice,"' (at 747) We also stated therein that there is a distinction between the intent or malice necessary to maintain an action for intentional tort (such as bad faith) and the intent which must be shown to recover punitive damages. For punitive damages to be awarded in addition to compensatory damages for the tort, there must be a showing of an evil intent deserving of punishment or of something in the nature of special ill-will or wanton disregard of duty or gross or outrageous conduct. In the specific context of the intentional tort of bad faith, exemplary damages are not necessarily appropriate although the plaintiff be entitled to compensatory damages. For punitive damages to be awarded, a defendant must not only intentionally have breached his duty of good faith, but in addition must have been guilty of oppression, fraud, or malice in the special sense defined by Mid-Continent v. Straka."

*270 If there is tortious conduct supporting a claim for compensatory damages, we can find no logical or conceptual difficulty in allowing a claim for punitive damages in a negligence or strict liability action if the plaintiff is able to establish the elements of "outrageous" conduct justifying punitive damages. A similar conclusion has been reached in the Final Report of the Legal Study of the Interagency Task Force on Product Liability, vol. 5, pp. 117-118, and in the reported cases of other jurisdictions which have considered the issue of recovery of punitive damages in product liability actions.^[4]

The Alaska Supreme Court, in responding to a defendant's contention that punitive damages have no place in the "fault-free" context of strict products liability, reached the same conclusion as we do, saying:

"We also reject the argument that punitive damages have no place in a strict liability case, although we do agree with appellant that punitive damages ought not be awarded in every products liability case. Where, however, as in the instant case, plaintiff is able to plead and *271 prove that the manufacturer knew that its product was defectively designed and that injuries and deaths had resulted from the design defect, but continued to market the product in reckless disregard of the public's safety, punitive damages may be awarded. See, e.g., Gillham v. The Admiral Corporation, 523 F.2d 102 (6th Cir. 1975), cert. denied, 424 U.S. 913, 96 S. Ct. 1113, 476 L. Ed.2d 318 (1976); Toole v. Richardson-Merrell, Inc., 251 Cal. App.2d 689, 60 Cal. Rptr. 398 (1967); Moore v. Jewel Tea Company, 116 Ill. App.2d 109, 253 N.E.2d 636 (1969), aff'd 46 Ill.2d 288, 263 N.E.2d 103 (1970)." Sturm, Ruger & Co., Inc. v. Day, 594 P.2d 38, 46, 47 (Alaska 1979).

[1]

This court rejects Ford's argument that as a matter of law, punitive damages cannot be recovered in any product liability case based on strict liability or negligence. We hold that punitive damages are recoverable in a product liability suit if there is proof that the defendant's conduct was "outrageous." Awarding punitive damages in a product liability case is a natural, direct outgrowth of basic common law concepts of tort law and punitive damages.^[5]

*272 B.

Ford also contends that allowing recovery of punitive damages on the allegations of this complaint is inconsistent with this court's abolition of the doctrine of gross negligence in Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962), and undermines the basic concept of comparative negligence. Prior to Bielski, the most important consequence of a finding of gross negligence on the part of a defendant was that a plaintiff could recover 100 percent of his compensatory damages, even if the plaintiff had been guilty of a great degree of contributory negligence. This aspect of the doctrine of gross negligence was eliminated by this court in Bielski by the abolition of the concept of gross negligence in negligence actions. In Bielski, 16 Wis.2d at 18, the court commented on punitive damages in negligence cases as follows:

"... We recognize the abolition of gross negligence does away with the basis for punitive damages in negligence cases. But punitive damages are given, not to compensate the plaintiff for his injury but to punish and deter the tortfeasor, and were acquired by gross negligence as accoutrements of intentional torts. Wilful and intentional torts, of course, still exist, but should not be confused with negligence. See sec. 481, p. 1260, Restatement, 2 Torts. The protection of the public from such conduct or from reckless, wanton, or wilful conduct is best served by the criminal laws of the state."

This dicta in Bielski relating to punitive damages in negligence cases is subject to various interpretations. Ford asserts that it means that punitive damages are not recoverable in any negligence action. In Cieslewicz v. Mutual Service Cas. Ins. Co., 84 Wis.2d 91, 267 N.W. 2d 595 (1978), this court commented on the Bielski dicta and concluded that whether punitive damages are recoverable in a negligence action is an open question:

"We note that it is an open question whether punitive damages may be awarded in Wisconsin in the context *273 of a negligent tort. When we abolished the doctrine of gross negligence in Bielski v. Schulze, 16 Wis.2d 1, 18, 114 N.W.2d 105 (1962), we used language that can be read as suggesting that punitive damages are inappropriate in negligence cases. The commentators, however, have not read this language as precluding punitive damages in those cases. Walther & Plein, Punitive Damages: A Critical Analysis: Kink v. Combs, 49 Marq. L. Rev. 369, 374 (1965); Ghiardi, supra, 60 Marq. L. Rev. at 758." Cieslewicz, supra, 84 Wis.2d at 101 n. 4.

Attorney David Walther and Thomas Plein, in their article Punitive Damages: A Critical Analysis: Kink v. Combs, 49 Marq. L. Rev. 369, 374 (1965), commented on the Bielski dicta as follows:

"... Because gross negligence involved a willful and wanton disregard of the rights of the plaintiff, one could argue that since the concept of gross negligence has been abolished punitive damages can no longer be recovered in negligence cases. In the Bielski decision the Court used language to this effect. Although the Court set forth the classic argument against punitive damages therein, it is unlikely that the court intended to restrict punitive damages to intentional torts exclusively. It is likely that punitive damages are still available in negligence cases where defendant's conduct was willful and wanton."

Professor Ghiardi apparently agreed with the Walther-Plein analysis of the Bielski dicta and commented:

"... Notwithstanding the court's statement it is likely that punitive damages can be recovered in cases where the defendant's conduct amounts to what was formerly categorized as gross negligence; that is where defendant has acted in wanton, wilful, or reckless disregard of the plaintiff's rights." Ghiardi, Punitive Damages in Wisconsin, 60 Marq. L. Rev. 753, 758 (1977).

Although in Bielski the court indicated that the public protection from reckless, wanton or wilful conduct is best served by the state's criminal laws, the court soon rejected this rationale in Kink v. Combs, supra, 28 Wis.2d at 80, where it stated:

*274 "Suffice it to say that whatever shortcomings the award of punitive damages may have, nevertheless, it must be remembered that it has the effect of bringing to punishment types of conduct that though oppressive and hurtful to the individual almost invariably go unpunished by the public prosecutor."

In Kink v. Combs and in subsequent cases this court has described the character of the conduct which will support punitive damages in language similar to that sometimes used to describe gross negligence. Although we recognize the similarity of language we need not decide, at this time, whether the behavior or acts which permit an award of punitive damages are the precise equivalent of conduct falling within the old gross negligence concept.^[6] In Bielski, the court pointed out that "gross negligence" was a "contradiction in terms" since it did not really describe negligence at all, but rather "a willingness to harm although such harm may not have been intended," or "willingness to perpetrate injury," or "a purpose to take known chances of perpetrating an injury" (16 Wis.2d at 14, 15). The court concluded, "ordinary negligence lay in the field of inadvertence but gross negligence in the field of actual or constructive intent to injure ...." (Id., at 15, emphasis supplied.)

As Professor Ghiardi noted, "[w]hile Bielski abolished the doctrine of gross negligence as a legal doctrine, in fact wanton, wilful or reckless conduct still exists." 60 Marq. L. Rev. 753, 759. And this court has recognized that such conduct subjects the wrongdoer to the possibility of punitive damages saying:

"The defendant claims that the question of punitive or exemplary damages should not have been submitted to the jury because defendant's acts were not activated by malice or vindictiveness. However, malice or vindictiveness are not the sine qua non of punitive damages.

*275 "`Where the defendant's wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action "punitive" or "exemplary" damages, or what is sometimes called "smart money."' Prosser, Law of Torts (2d ed.), p. 9, sec. 2.

"For the award of punitive damages it is sufficient that there be a showing of wanton, wilful, or reckless disregard of the plaintiff's rights. 6 C. J. S., Assault and Battery, p. 904, sec. 55b(3)...." Kink v. Combs, supra, 28 Wis.2d at 79.

[2]

Because punitive damages depend on the nature of the wrongdoer's conduct, not on the nature of the tort on which compensatory damage is based, we interpret the dicta in Bielski to mean that punitive damages are not recoverable if the wrongdoer's conduct is merely negligent. Punitive damages do not rise from negligence. Nor does every products liability case give rise to punitive damages. Only where there is proof of malice or willful, wanton, reckless disregard of plaintiff's rights can punitive damages be considered. Although Bielski eliminated the proof of aggravated conduct characterized as gross negligence in determining liability for compensatory damages and the amount thereof in negligence actions, Bielski has not been interpreted by this court as eliminating such conduct as the basis for punitive damages. We do not read Bielski as holding that "outrageous" conduct, which may also fit the description of "gross negligence," has no place in determining the existence of liability for punitive damages and in determining the amount of punitive damages in a product liability tort action. To the extent that the dicta quoted from Bielski can be interpreted otherwise, we reject such an interpretation.^[7]

*276 Ford argues that allowing punitive damages in a comparative negligence case will undermine the trial of the comparative negligence issues. A claim for punitive damages in a products liability case permits the introduction *277 of evidence relating to the wealth of the defendant, prior punitive damages awarded against the defendant, and anticipated profits of the defendant. Ford contends that this evidence is highly prejudicial to the defendant when the fact finder determines the issues of liability and compensatory damages and that the evidence introduced concerning punitive damages will distort the jury's verdict. Commentators are quick to respond to this assertion by pointing out that the reason for awarding punitive damages is that it is generally recognized that if punitive damages are not allowed, juries give vent to their desire to punish the wrongdoer under the guise of increasing the compensatory damages, particularly those awarded for pain and suffering. 2 Harper & James, Law of Torts, sec. 25.1, p. 1300 (1956). A classic example of this phenomenon is a Wisconsin case which was tried three times before different juries in different counties, twice with punitive damages allowed and once without; each verdict was for the same total amount. Bass v. Chicago & N.W. Ry., 36 Wis. 450 (1874) ($4,500 including both punitive and compensatory damages); 39 Wis. 636 (1876) ($4,500 compensatory); 42 Wis. 654, 667-72 (1877) ($2,500 compensatory, $2,000 punitive). The danger of prejudicing the jury by allowing a claim for the punitive damages is not peculiar to product liability cases; it exists in any case involving punitive damages.

We conclude that permitting the award of punitive damages in product liability cases is not inconsistent with Bielski and does not undermine the law of comparative negligence.

C.

Ford maintains that punitive damages are unnecessary in product liability cases to effect punishment and deterrence, which are the objectives of imposing punitive *278 damages in the traditional tort action and that our outlawing punitive damages in all products liability cases is in the public interest because the recovery of punitive damages would cause economically and socially undesirable consequences.

1.

Ford does not assert that there are no valid policy grounds for awarding punitive damages. Ford does not urge the complete abolition of punitive damages in all tort cases. Ford merely asserts that the accepted justifications for punitive damages, namely, punishment and deterrence, have no application in the product liability context.

In light of the history of punitive damages in Wisconsin, it is understandable why Ford is not urging the abolition of punitive damages in all tort cases. For nearly 126 years the Wisconsin courts have accepted punitive damages as part of Wisconsin tort law. In 1854, the Wisconsin Supreme Court, after carefully reviewing policy considerations militating both for and against the award of punitive damages, adopted the concept of assessing punitive damages to punish the wrongdoer and to deter the wrongdoer and others from similar conduct in the future. McWilliams v. Bragg, 3 Wis. 377 (*424) (1854).^[8] The issue of punitive damages *279 was raised in numerous cases in the nineteenth century, and this court, while recognizing the problems inherent in awarding punitive damages, repeatedly reaffirmed its adherence to the concept of punitive damages as a valuable tool in the law. In 1877, Chief Justice Ryan, in Bass v. Chicago & Northwestern Ry. Co., 42 Wis. 654, 672 (1877), although questioning the wisdom of the rule of punitive damages, concluded that the policy was too well established in Wisconsin to be overturned by judicial decision. The Chief Justice, in his concurring opinion, commented:

"I have always regretted that this court adopted the rule of punitory damages in actions of tort. In the controversy between Prof. Greenleaf and Mr. Sedgwick, I cannot but think that the former was right in principle, though the weight of authority may be with the latter. It is difficult on principle to understand why, when the sufferer by a tort has been fully compensated for his suffering, he should recover anything more. And it is equally difficult to understand why, if the tortfeasor is to be punished by exemplary damages, they should go to the compensated sufferer, and not to the public in whose behalf he is punished.... But the rule was adopted as long ago as 1854, in McWilliams v. Bragg, 3 Wis., 424, and has been repeatedly affirmed since. It is therefore too late to overturn it by judicial decision. That could well be done now by legislative enactment only."

Although controversy continues to surround the doctrine of punitive damages in the twentieth century, and although some have questioned whether tort law—which is designed to compensate an injured plaintiff—should also serve the function of the criminal law, i.e., to punish a defendant for the purpose of deterring him and others *280 from further offenses, this court has consistently and frequently said that punishment and deterrence are important considerations in the law of torts in Wisconsin. We explained our position in Luther v. Shaw, 157 Wis. 234, 238-239, 147 N.W. 18 (1914) as follows:

"... From the doctrinaire viewpoint and assuming as premises that damages should never exceed compensation and that every mulct imposed as a punishment or deterrent should go into the public treasury, the award of such damages to the plaintiff in a private prosecution would seem to be illogical.

"Speaking for myself only in this paragraph, I am inclined to admit that, assuming these premises, the lack of logic is quite apparent. But it is a commonplace observation that illogical systems of government often achieve better results than those which are strictly logical. The law giving exemplary damages is an outgrowth of the English love of liberty regulated by law. It tends to elevate the jury as a responsible instrument of government, discourages private reprisals, restrains the strong, influential, and unscrupulous, vindicates the right of the weak, and encourages recourse to and confidence in the courts of law by those wronged or oppressed by acts or practices not cognizable in or not sufficiently punished by the criminal law. The latter law must be uniform as to persons and acts, must fix a maximum and minimum punishment on this basis, and cannot always be adjusted to particular circumstances of atrocity which occasionally occur. The maximum penalty, together with compensatory damages for the wrongful taking of one little ewe lamb, would be quite inadequate and unsatisfactory in the hypothetical case put by Nathan to David. If some American multimillionaire should emulate the antics of Lucius Veratius with reference to personal or property rights, justice might require some deterrent not found in the criminal-law penalties plus compensatory damages. The ordinary case of aggravated newspaper libel where the actual damages are small, or the case of malicious abuse of legal process, will supply more modern instances."

In Kink v. Combs, 28 Wis.2d 65, 80-81, 135 N.W.2d 789 (1965), we continued our adherence to the principle *281 of punitive damages as a valuable and effective tool in the control of human conduct saying:

"Suffice it to say that whatever shortcomings the award of punitive damages may have, nevertheless, it must be remembered that it has the effect of bringing to punishment types of conduct that though oppressive and hurtful to the individual almost invariably go unpunished by the public prosecutor. Under the law of Wisconsin (sec. 59.47(2), Stats.), a district attorney is not obliged to prosecute an assault and battery and may leave the injured party to prosecute through his own attorney. Certainly, the criminal law seldom reaches an assault and battery case. By allowing punitive damages the self-interest of the plaintiff will lead to prosecution of the claim, while the same self-interest of the plaintiff would lead him to refrain from instituting a criminal action at his own expense. Punitive damages serve not only the aggrieved victim of an assault, but also society, for by this device, a quasi-criminal action is prosecuted, when ordinarily it would not be prosecuted at all. The multiple-damage suits countenanced by our statutes recognize the principle that certain types of violations will not be prosecuted unless the injured parties' judgment is fattened by the equivalent of punitive damages. These are civil actions (e.g., antitrust suits) where the public interest is served by the incentive given to private litigation. Certainly the consolidation of claims for compensation and punitive damages in one cause of action is in accord with modern principles of avoiding multiple trials.

"This court takes the position that punitive damages do serve as a deterrent...."

This court, although requested to do so, has not been willing to abandon the concept of punitive damages and has on numerous occasions reaffirmed its adherence to the doctrine. Templeton v. Graves, 59 Wis. 95,