Reed v. Fichencord , 96 Okla. 3 ( 1923 )

Section 5975, Comp. Okla. Stat. 1921, provides as follows:

"In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant."

Therefore, in order to entitle the plaintiffs to recover exemplary damages in this case, the proof must show some element of fraud, malice, or oppression. As was stated by this court in the case of Sale v. Shipp, 58 Okla. 602, 160 P. 502:

"The act which constitutes the cause of action must be actuated by or accompanied with some evil intent, or must be the result of such gross negligence — such disregard of another's rights — as is deemed equivalent to such intent."

And, where there is a want of any of these elements, the damages recoverable are confined to the loss sustained and nothing more. Western Union Tel. Co. v. Reeves, 34 Okla. 469,126 P. 216; Ft. S. W. Co. v. Ford, 34 Okla. 576,126 P. 745, 41 L. R. A. (N. S.) 745; Williams v. Baldrey,52 Okla. 126, 152 P. 814; Haskell Nat. Bank v. Stewart, 76 Okla. 58,184 P. 463.

Inasmuch as Mr. Justice Cochran, in his statement of the facts in this case, has been very brief, I deem it necessary to go into them more at length, for the purpose of showing that there was no evidence whatever, as I view the case, supporting the verdict of the jury as to exemplary or punitive damages.

The record in the case discloses that the plaintiff, H.F. Fichencord and Blanche Fichencord are husband and wife, and in 1918 were engaged in farming and operating a threshing machine in Wagoner county, Okla.

The record further discloses that the defendants below were citizens of Wagoner county, and during the period covered by the transactions involved were members of or connected with the council of defense and the food administration of Wagoner county, organized to aid in developing and conserving the country's resources under the general war plans inaugurated by the federal government during the war with Germany.

The testimony in this case covers almost 1,000 pages of the record, but it has been carefully examined with the view of reaching a just conclusion upon this proposition.

In the first place, it must be admitted that this case is exceptional in many of its aspects, and although unnecessary, as I view the law and the facts, it is the one case where the proverbial exception might with propriety be applied rather than the rule. The occurrences which gave rise to this case transpired at a time of national peril when the resources of the country were being marshaled to the straining point in the effort to make successful the most stupendous governmental undertaking in history. American lives had been treacherously destroyed on the high seas, and American blood had flowed on the battlefields in France. Loyalty in this country was aroused as never before, and the personal equation was often lost sight of in the determination to make the nation a unit in the prosecution of the war. The defendants were engaged in this war work, and the records show that in the effort to increase and speed production of food stuff they took measures similar to those adopted in practically every county of every state in the Union.

The county council of defense, of which they were members, and which was at least a semiofficial organization, having been organized by the authorization of the federal government, prescribed rules for the harvesting, threshing, and distribution of food crops. Due to their sincerity in their work in this organization, and their patriotism, they probably doubted the good faith and patriotism of those who questioned either the wisdom or the necessity of the regulations of said organization, and to them positive proof of loyalty was acquiescence in the plans suggested by the federal administration.

Whether justifiably so or not, the record discloses that the plaintiffs had evidently aroused suspicions as to their loyalty. The record further discloses that the plaintiff, H.F. Fichencord, had been arrested on two occasions at about that time, once for appearance before the county council of defense for some reason not clearly disclosed by the evidence, and the other for appearance before the United States commissioner at Muskogee upon the charge of espionage. There is some evidence, however, tending at least to show that these defendants were responsible for the federal warrant.

The record further discloses that the plaintiffs failed and refused to comply with an order of the county council of defense to thresh all crops in each neighborhood before proceeding to another. As a matter of economy and staving of time, this regulation seems to have been reasonable.

After this refusal on the part of plaintiffs, defendants took charge of the threshing machine during the absence of the plaintiffs and proceeded to thresh the crops of those farmers which the plaintiffs had failed to thresh. The record further discloses that the defendants had the machine in their possession from July 10, to July 24, 1918, and that the net proceeds from its operation were delivered to the plaintiffs.

We think this strongly rebuts any presumption of malice; that defendants believed they had authority to commandeer the machine is amply shown by the testimony. Even though the testimony was sufficient to establish the fact that the defendants were responsible for the arrests of the plaintiff, H.F. Fichencord, yet there is no evidence that would warrant the conclusion that the taking of the machine and the arrests were a result of any conspiracy between the defendants to oppress the plaintiffs. Malice and oppression, actual or presumed, must be present in the act made the basis of the action to authorize exemplary damages.

I am of the opinion that there was not sufficient evidence to warrant the trial court in submitting to the jury the question of exemplary damages, and must, therefore, dissent from the majority opinion affirming such action.