Tibbs v. National Homes Construction Corp. ( 1977 )

I find myself in general agreement with my brothers in the conclusion which they reach in this case. The author of the opinion sagely ascertains that the theory of the plaintiffs in seeking punitive damages was twofold: either because fraud was committed on the plaintiffs or, if not fraud, then punitive damages were justified because of the defendant's failure to construct the subject house in a workmanlike manner and such failure flowed from a deliberate, malicious and willful disregard of defendant's obligations to plaintiffs. As to the first of the grounds for possible entitlement to punitive damages, there was insufficient evidence of fraud to have justified the court in submitting the subject of punitive damages to the jury on a fraud theory. However, in examining the complaint in the instant action, I cannot reach the same conclusion as my brothers in concluding that the actionsubjudice is ex contractu and that recovery therefore is limited to compensatory damages and would not permit the consideration and award of punitive damages. I view the complaint as alleging acts constituting a breach of contract by the defendant, but also amounting to a cause of action in tort, thus justifying a recovery of exemplary damages on proper proof. I am favorably affected by the following text in 25 Corpus Juris Secundum 1126, 1128, Damages, Section 120:

"* * * [E]xemplary damages are recoverable for a tort committed in connection with, but independently of, the breach of contract, where the essentials of an award of such damages are otherwise present, the allowance of such damages being for the tort and not for the breach of contract. In order to permit a recovery, however, the breach must be attended by some intentional wrong, insult, abuse, or gross negligence which amounts to an independent tort."

The Corpus Juris Secundum quotation notes Saberton v.Greenwald (1946), 146 Ohio St. 414, the second paragraph of the syllabus of which holds:

"In an action to recover damages for a tort which involves the ingredients of fraud, malice or insult, a jury may go beyond the rule of mere compensation to the party aggrieved and award exemplary or punitive damages. (Roberts v. Mason, 10 Ohio St. 277, approved and followed.)" (Emphasis supplied.)

Although differing from my brothers in their evaluation of the instant action as one sounding exclusively in contract, while I believe the complaint also amounts to a cause of action in tort, the full court arrives at the same end result because of the failure of the plaintiffs to prove actual malice, even though it may be inferred in this state from conduct and surrounding circumstances.

Therefore, I concur with the determination that the judgment of the trial court be modified by granting a judgment notwithstandinging the verdict to the appellant as to punitive damages; otherwise, the judgment of the trial court should stand.