Columbus Finance, Inc. v. Howard , 42 Ohio St. 2d 178 ( 1975 )

Corrigan, J.,

dissenting in part and concurring in part.

At least two reasons impel me to withhold my assent from the first paragraph of the syllabus herein, and from Part I of the majority opinion and the judgment thereon which reversed the trial court’s award of punitive damages and reasonable attorney fees.

1 do concur in paragraph two of the syllabus and in Part II of the opinion and the judgment thereon.

The primary reason for my disagreement is that paragraph one of the syllabus erroneously states the law that would govern punitive damages in an action for wrongful execution in Ohio in the future. Secondly, the rationale and conclusion of Part I of the majority opinion misconceives the applicable principles of punitive damages. To promulgate the doctrine that, in an action for wrongful execution, actual malice, fraud or insult on the part of the wrongdoer must be shown in order to justify an award of punitive damages is, in my view, heterodox.

As stated in 30 American Jurisprudence 2d 873, Executions, Section 766: “In a proper case, punitive damages may be recovered in an action for wrongful execution. This is true where it appears that the defendant * * * [engaged in] such conduct, either wilful, wanton, or grossly negligent as to show a conscious indifference to consequences. * * *” (Emphasis added.) Under such circumstances malice may be implied, and a showing of actual malice is not needed. Actual malice is that state of mind under which a person’s conduct is characterized by hatred or ill will, a spirit of revenge, retaliation, malevolence, spite, or enmity toward another person. However, malice may be implied when a person intentionally does an act which is wrongful to the detriment of another. The term “wrongful” imparts in its turn the infringement of some right.

The rule as to malice, in connection with punitive damages, is stated as follows by Hart, J., in his dissenting opinion in Saberton v. Greenwald (1946), 146 Ohio St. 414, at page 437, and there was no division of the court on this statement:

“This court has, over the years, recognized the propriety of submitting to a jury the question of assessment of punitive damages in certain tort cases where the defendant’s wrongdoing has been intentional and deliberate, or has the character of outrage frequently associated with crime. * * * Generally the application of the doctrine is confined to cases where there is involved actual malice, interference with marital relations, or wanton personal injury, such as in cases of seduction, assault and battery, false imprisonment, or wrongful expulsion from public passenger vehicles or places of public entertainment.” (Emphasis added.)

The rule was succinctly reiterated in the charge of the trial court as reported in the case of Smithhisler v. Dutter (1952), 157 Ohio St. 454, 458:

“ ‘Hatred, ill will, or actual malice toward the injured party is not a necessary ingredient of legal malice as applied to torts, nor is it necessary that the act complained of proceed from a spiteful, malignant, or revengeful disposition. If it be wrongful, unlawful and intentional, and the natural and probable result of the act is to accomplish the injury complained of, malice is implied.’ * (Emphasis added.)

On the question of punitive damages in an action for the wrongful taking of goods, in an annotation in 54 A. L. R. 2d 1379, Section 5(a), the rule is again found:

‘ ‘ In some cases it has appeared that the creditor seized the plaintiff’s property by means of legal process, taking and withholding it from the plaintiff on the pretext of enforcing the debt. Where it was proved that there was malice, insult, wilful and wanton disregard of the plaintiff’s rights, or the like, exemplary or punitive damages have been allowed.

“Thus, in Kentucky Trust & Security Co. v. Ringo (1911), 145 Ky, 190, 140 S. W. 154, the court stated that if the jury believed that the property was taken from the plaintiff without right or lawful excuse, under the circumstances detailed by her in her testimony, it would be warranted in awarding not only damages she actually sustained, but further damages by way of ‘smart money.’ Plaintiff testified that an agent of the defendant came to her house, accompanied by a constable, and over her objection took her furniture, loaded it in a wagon, and put it in a public storage room, refusing to return it to her upon her request, even though she told him she did not owe his company anything. After a lapse of eight or ten days, she again requested her furniture, and was allowed to take it after paying the storage charges and hauling charges. The jury found that the defendant had invaded the plaintiff’s home without right, punitive damages therefore being authorized.” (Emphasis added.)

Finally, as authority for the position I take that Columbus Finance is responsible in punitive damages for the intentional and wrongful seizure of the Howards’ automobile under a writ of execution by the employees of Columbus Finance, I find support in the classic conclusion of Judge Learned Hand in his opinion in the case of Nelson v. American West African Line (1936), 86 F. 2d 730, that:

“A principal is not chargeable with wilful acts, intended by the agent only to further his own interest, not done for the principal at all. * * # Restatement of Agency, Section 235. Bnt motives may be mixed; men may vent their spleen upon others and yet mean to further their master’s business; that meaning, that intention is the test.” (Emphasis added.)

That meaning, that intention, radiates from the record before us as even clearer than the manifestation of the intentional wrongfulness of the execution. The faithfulness of the Columbus Finance agent to its interest may, conceivably, provide some assuagement for his tort.

Accordingly, I would reverse the Court of Appeals on the question of punitive damages and reinstate the judgment of the Municipal Court on that issue.

Herbert, J., concurs in the foregoing dissenting opinion.