Arthur and Roberta Wells appeal two orders of the Circuit Court of Hancock County, one granting the motion of the appellee, John Settimio, to set aside a verdict awarding $10,000 punitive damages to the appellants, and one denying the appellants’ motion for a new trial and for judgment notwithstanding the verdict. The appellants contend that the verdict against Settimio was improperly struck by the trial court. They pray that the judgment against Settimio be reinstated, or in the alternative, that they be granted a new trial on the issue of Settimio’s liability. We find that the $10,000 verdict for punitive damages was improperly struck by the trial court. Because of our ruling on this point we do not address the appellants’ other assignments of error. 1
This litigation originated in a civil action brought by the appellants to recover damages incurred as the result of the theft of more than $200,000 worth of jewelry and rare coins. The evidence presented by the appellants at trial shows that in August, 1977, three juveniles removed a wall safe from the appellants’ home. Appellee Gary R. Gillespie, an uncle of one of the juveniles, was enlisted to open the safe after the juveniles’ own attempts to open it were unsuccessful. Gillespie divided the jewelry and coins he found inside the safe between one of the juveniles and himself.
Gillespie subsequently contacted appellee Louis Pilotti to arrange a sale of his share of the jewelry. Pilotti arranged a meeting between Gillespie and appellee Eddie Klein, a wholesale jewelry distributor from Pittsburgh. The jewelry was delivered to Klein at Jo-Jon’s Restaurant, a sandwich shop and discount store owned and operated by appellee John Sittimio. Pilotti, Klein and Sittimio were all former acquaintances and occasional business associates. Klein’s payment of $11,500 for the stolen merchandise was delivered to Gillespie by Pilotti at the Cactus Bar, Pilotti’s place of business. Settimio was present both at the meeting at Jo-Jon’s Restaurant and at the Cactus Bar when the payment was delivered. Pi-lotti received $1500 of the $11,500 from Gillespie for arranging the deal with Klein.
The investigation of the theft from the appellants’ home resulted in the arrest of Gillespie on charges of receiving stolen goods. 2 After his arrest, Gillespie agreed to cooperate with the authorities in an attempt to retrieve the stolen merchandise. He subsequently contacted Pilotti to arrange an exchange of the jewelry for $15,-000 in “ransom” money which the appellants agreed to supply. Pilotti’s fee for arranging the еxchange was $2000. Deputy Joseph Geiss of the Hancock County Sheriff’s Department was chosen by the authorities to deliver the ransom money.
Deputy Geiss met with Pilotti and Setti-mio at a restaurant in southwestern Pennsylvania. Settimio claims that Pilotti requested that he come along on the ransom attempt in order to verify that the jewelry they received was authentic, and that he *100 was to receive $1000 for his services. Set-timio further claims he was qualified for this job because he had previous experience valuing precious stones in connection with his discount store. At the meeting, Pilotti informed Deputy Geiss that the exchange was to be made with an unnamed person in Pittsburgh. Using Settimio’s car, the three began their trip to Pittsburgh. The ransom attempt was aborted, however, when the car headed into downtown Pittsburgh and concern for the safety of Deputy Geiss prompted Hancock County Sheriff Ronald Donell, who along with West Virginia and Pennsylvania State Police had been following Geiss, to order Settimio’s car stopped. Pilotti and Settimio wеre arrested at this time and charged with criminal conspiracy. These charges were later dropped by Pennsylvania authorities.
The appellants’ complaint named as defendants the three juveniles, their parents, Gillespie, Pilotti, Klein, Settimio and several other individuals. This appeal is concerned only with appellee Settimio. The jury returned verdicts of $155,000 compensatory and $10,000 each punitive damages against the juveniles and Gillespie, and $150,000 compensatory and $10,000 each punitive damages against Pilotti and Klein. The jury returned a general verdict in favor of appellee Settimio, but assessed him with $10,000 in punitive damages. Upon hearing the verdict, counsel for the appellants requested that the jury be sent back for deliberations due to the inconsistencies in its disposition of the claims against Setti-mio. This request was denied by the trial court and the jury dismissed. The judge subsequently struck the $10,000 verdict against Settimio upon motion of defense counsel.
The appellee contends that the ruling by the trial court is cоrrect in light of the established rule in West Virginia that “[a] finding of compensatory damages by a jury is an indispensable predicate to a finding of exemplary or punitive damages, and damages awarded by way of punishment must bear a reasonable proportion to compensatory damages so found.” Syllabus Point 3,
Toler v. Cassinelli,
The appellants, on the other hand, argue that the rule stated in Toler does not address the factual and legal circumstances of a case of this nature where substantial actual damages are proven and assessed against codefendants. They urge the Court to adopt a rule to the effect that where a claim for actual damages is sufficiently pleaded and рroved, the failure of the jury to allow compensatory damages does not require an award of exemplary or punitive damages to be set aside. We find merit in the appellants’ argument.
Damages awarded to punish a wrongdoer for a wilful, wanton, reckless or malicious act and to deter others from similar conduct have a long history in Anglo-American jurisprudence. The English case generally cited as establishing such awards is Huckle v. Money, 2 Wils. 205, 95 Eng.Rep. 768 (1763), an action for trespass, assault and imprisonment. In Huckle the court refused a motion for a new trial on the ground of excessive damages, reasoning that while the injury done to the plaintiff may have been small, the nature of the defendant’s conduct justified an award of “exemplary damages.” See 1 T. Sedgwick, A Treatise on the Measure of Damages § 350 (9th ed. 1913). It has been stated, however, that the court in Huckle did not establish a new rule of damages, but rather simply adhered to the ancient English principle of affording the jury wide discretion in the determination of the amount of damages in tort cases. 1 T. Sedgwick, supra, at § 349. Thus, well into the twentieth century, it could be said: “In England, whеre exemplary damages had their origin, it is still not entirely clear whether the accepted theory is that they are a distinct *101 and strictly punitive element of the recovery, or they are merely a swollen or ‘aggravated’ allowance of compensatory damages permitted in cases of outrage.” C. McCormick, Handbook on the Law of Damages § 78 (1935) (footnote omitted).
Whatever the rule in England, in America punitive damages became an element distinct from compensatory damages. C. McCormick, supra; see also 1 T. Sedwick, supra, at 351-352; K. Redden, Punitive Damages § 2.3 (1980). In the United States, exemplary or punitive damаges are generally defined as:
damages which are given as an enhancement of compensatory damages because of the wanton, reckless, malicious, or oppressive character of the acts complained of. Such damages go beyond the compensatory damages suffered in the case; they are allowed as a punishment of the defendant and as a deterrent to others.
22 Am.Jur.2d, Damages § 236 (1965) (footnotes omitted).
The great majority of American jurisdictions permit the recovery of punitive damаges in some form.
See
C. McCormick,
supra;
K. Redden,
supra,
at § 2.1; 2 J. Sutherland,
A Treatise on the Law of Damages
§§ 391-393 (4th ed. 1916); W. Prosser,
Handbook of the Law of Torts
§ 2 (4th ed. 1971). However, it is widely held that there is no cause of action for punitive damages alone.
See
22 Am.Jur.2d,
Damages
§ 241 (1965);
Annot.,
In West Virginia the rule permitting punitive damages as a means of punishing the defendant for egregious conduct was origi
*102
nally repudiated in
Pegram v. Stortz,
The view expressed in
Pegram v. Stortz, supra,
was overruled in
Mayer v. Frobe,
1. The common law definition of the term “exemplary damages” is damages inflicted by way of punishment upon a wrongdoer as a warning to him and others to prevent a repetition or commission of similar wrongs.
4. In actions of tort, where gross fraud, malice, oppression, or wanton, willful, or reckless conduct or criminal indifference to civil obligations affecting the rights of others appear, or where legislative enactment authorizes it, the jury may assess exemplary, punitive or vindictive damages; these terms being synonymous.
Subsequent to
Mayer,
numerous West Virginia cаses have expounded upon when punitive damages are available to plaintiffs, often in contradictory or confusing pronouncements.
See, e.g., Claiborne v. Chesapeake & O. Ry. Co.,
In
Pennington v. Gillaspie,
*102 The amount of ... actual damages depend on the evidence, not upon the mere caprice or imagination of the jury.... The same is true also as to exemplary damages, for we think such damages should bear some reasonable proportion to the actual damage done else they would be unreasonable and excessive, evincing partiality and prejudice on the part of the jury, so as to justify the court in setting the verdict aside. 8
*103
The holding in
Pennington
was further explained in
Pendleton v. Norfolk & W. Ry. Co.,
The “reasonable relation” rule approved in
Pennington v. Gillaspie, supra,
was relied on by the Court in
Newman v. Robson & Prichard,
However, in
Toler v. Cassinelli,
The “reasonable relation” rule has been the subject of much criticism over the years. The thrust of the criticism is that the rule thwarts the punishment purpose of punitive damages in cases where the defendant’s conduct has been egregious but where the plaintiff has suffered indeterminate or nominal damages. This discourages the plaintiff from bringing suit and deprives the public from the deterrence of wanton acts. 9
Our recent cases disclose a trend away from strict adherence to the “reasonable relation” rule. For example, in
Leach v. Biscayne Oil and Gas Co.,
[i]n assessing [punitive] damages, the trier of fact should take into consideration all of thе circumstances surrounding the particular occurrence including the nature of the wrongdoing, the extent of *104 harm inflicted, the intent of the party committing the act, the wealth of the perpetrator, as well as any mitigating circumstances ....
Moreover, in
Mauck v. City of Martinsburg,
Furthermore, this Court has recognized that a cause of action for the tort of outrageous conduct exists in this jurisdiction and that this cause of action рermits the recovery of damages for emotional distress without proof of physical trauma where the distress arises out of extreme and outrageous conduct intentionally or recklessly caused by the defendant.
See Harless v. First Nat’l Bank In Fairmont,
Moreover, one of the theories of the cause of action authorized by our Workmen’s Compensation Act,
see
W.Va.Code § 23-4-2 (1981 Replacement Vol.), in which an injured employee may seek to hold liable his employer for damages where the employer commits an intentional tort or engages in wilful, wanton or reckless misconduct,
see Mandolidis v. Elkins Industries, Inc.,
The all embracing scope of the holding in Toler v. Cassinelli, supra, that an award of compensatory damages is a necessary predicate to an award of punitive damages, has been weakened by our more recent cases which recognize that the propriety of an award of punitive damages should not be solely dependent upon the return of a verdict for compensatory damages. Additional support for this view can be found in the West Virginia Constitution which provides that “[t]he courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law_” W.Va. Const, art. Ill, § 17. Where the plaintiff’s injury is incapable of precise measurement, the denial of punitive damages is tantamount to the denial of a remedy.
Furthermore, as demonstrated by the facts of this case, criminal conduct warranting punishment often escapes the notice or interest of the public prosecutor. Citizens faced with an under-zealous prosecutor should not be left without avenue for redress of injuries, particularly in light of our case law which recognizes that punitive damages serve to vindicate the victims of the dеfendant’s wrongful conduct and provide a substitute for personal revenge.
See Harless v. First Nat’l Bank In Fair-
*105
mont, supra; Hensley v. Erie Insurance Co.,
It has been long established in West Virginia that, as a general rule, an award of damages by a jury should not be lightly disregarded.
See Leach v. Biscayne Oil and Gas Co., Inc., supra; Addair v. Majestic Petroleum Co., Inc., supra; Davis v. Chesapeake & O. Ry. Co.,
The power of a court to set aside an award of punitive damages is the same power, and is exercised upon the same principles, as in any case of excessive damages. 1 T. Sedgewick, supra, at § 388. Thus a decision by the trial court regarding the excessiveness of the punitive award returned by the jury should flow from an ovеrall appraisal of the circumstances of the case, see Leach v. Biscayne Oil and Gas Co., Inc., supra, with the realization that the degree of punishment to be inflicted on the wrongdoer is peculiarly within the province of the jury. See C. McCormick, supra, at § 84. Only where the award of punitive damages has no foundation in the evidence so as to evince passion, prejudice or corruption in the jury should the award be set aside as excessive. See Stevens v. Friedman, supra.
The appellants alleged in their complaint that appellees Pilotti, Klein and Settimio were participаnts in a conspiracy to deprive the appellants of their property. Consistent with this theory, the appellants tendered an instruction providing that “the effect of [a] civil conspiracy is to make what was done by one or more of the conspirators the act of all of them .... ” Although inartfully worded, this instruction is basically a correct statement of law.
See, e.g., Waddey Co. v. Richmond Typographical Union,
The appellants’ evidence implicates Settimio, along with Pilotti and Klein, in a scheme to dispose of the jewelry stolen from the appellants’ home. Indeed, had the jury been properly instructed on the appellants’ conspiracy theory they may well have returned a verdict for compensa *106 tory damages against Settimio by virtue of the evidence of his participation in the conspiracy. In these circumstances we believe that proof and assessment of actual damages against Pilotti and Klein, when viewed in light of the evidence showing Settimio’s involvement, is an adequate basis for an award of punitive damages against Setti-mio.
Where there is evidence implicating the defendant as an active participant in a tortious plan or scheme which deliberately disregards the rights of others, and the jury returns compensatory damages against some of those involved in the scheme, the failure of the jury to return an award of compensatory damages against a particular defendant will not of itself allow that defendant to escape liability for punitive damages assessed against him. 10 We therefore decline to view the failure to return compensatory damages against Settimio as an exoneration by the jury. Rather, under the totality of the circumstances we find the award of punitive damages is an indication by the jury that they believed Settimio to be a culpable party whose wilful disregard of the appellants’ rights warranted punishment.
The facts of this case do not require us to address the issue of whether an independent cause of action lies for punitive damages, although our holdings in Harless v. First Nat’l Bank In Fairmont, supra, and Mauck v. City of Martinsburg, supra, point in that direction. We find that under the evidence presented below, the jury’s failure to return an award of compensatory damages against Settimio does not relieve him from liability for the award of punitive damages the jury did return.
For the foregoing reasons the order of the Circuit Court of Hancock County granting appellee Settimio’s motion to set aside the verdict is reversed. This case is remanded with directions that the verdict for punitive damages against appellee Settimio be reinstated.
Remanded with directions.
Notes
. The appеllants’ other assignments of error are: (1) the trial court erred in denying admission of a prior judicial statement made by appellee Gary R. Gillespie; (2) the court erred by not imposing sanctions on those appellees who invoked their privilege against self-incrimination during discovery proceedings, and (3) the court erred in refusing to grant a new trial against appellee Settimio.
. Gillespie subsequently entered a guilty plea to this charge. Although all three juveniles were arrested in connection with the theft, Gillespie’s conviction represents the sole criminal prosecution resulting from the police investigation.
.
See Edmond v. Fairfield Sunrise Village, Inc.,
.
See Gulf Atlantic Life Ins. Co. v. Barnes,
.
See Stinson
v.
Feminist Women’s Health Center, Inc.,
. The Court dismissed dicta in several earlier West Virginia decisions which arguably implied that punitive damages may be given.
See Sweeney v. Baker,
. Professor Hale describes this case as "an elaborate opinion which relies principally on Scriptural authority." W. Hale, Handbook on the Law of Damages at 206 (1896). Justices Bran-non, Holt and English disavowed the theological basis of the decision in a concurring note. Mayer v. Frobe, supra.
.The Court in
Pennington
cites
Stevens v. Friedman,
. K. Redden, supra at § 3.6(C); see also Morris, Punitive Damages in Tort Cases, 49 Harv.L.Rev. 1173 (1931); Note, The Reasonable Relation Rule, 9 Pac.L.J. 823 (1978); Comment, Necessity of Actual Damages to Support Awards of Exemplary Damages, 16 Minn.L.Rev. 438 (1932); Martin, The Relation of Exemplary Damages to Compensatory Damages, 22 Tex.L.Rev. 235 (1944); Note, No Award of Exemplary Damages Without a Recovery, of Actual Damages, 3 Baylor L.Rev. 591 (1951); Note, Proportion Between Compensatory and Exemplary Damages, 7 Rutgers L.Rev. 414 (1953); Comment, Punitive Damages May Be Awarded Without Compensatory Damages Where Injury Is Shown, 43 Va.L. Rev. 105 (1957); Walter, The Reasonable Relation Rule Between Exemplary and Actual Damages in Texas, 16 Hous.L.Rev. 181 (1972).
. The situation presented by this case is somewhat analagous to that in
Addair v. Huffman,