589 P.2d 698 (Okla.App. Div. 2 1978), 50172, Barnes v. McKinney

Docket Nº:50172.
Citation:589 P.2d 698
Party Name:Jack BARNES, Appellee, v. Carl D. McKINNEY, Appellant.
Case Date:August 01, 1978
Court:Court of Appeals of Oklahoma, Court of Civil Appeals of Oklahoma

Page 698

589 P.2d 698 (Okla.App. Div. 2 1978)

Jack BARNES, Appellee,


Carl D. McKINNEY, Appellant.

No. 50172.

Court of Appeals of Oklahoma, Division No. 2.

August 1, 1978.

Rehearing Denied Oct. 30, 1978.

Certiorari Denied Jan. 15, 1979.

Released for Publication by Order of Court of Appeals Jan. 18, 1979.

Page 699

[Copyrighted Material Omitted]

Page 700

Frank M. Hagedorn, Hall, Estill, Hardwick, Gable, Collingsworth & Nelson, Tulsa, for appellee.

Prichard, Norman, Reed & Wohlgemuth, Tulsa, for appellant.


Action to recover for breach of home construction contract and fraud in obtaining final payment. Trial court required an election of theories and jury returned verdict for plaintiff on the fraud count. Defendant appeals from a judgment on such verdict.

Despite the commission of critical errors against him plaintiff achieved a $4,000 jury verdict. Defendant, Carl McKinney, sought a new trial and when this was denied he appealed.


On February 24, 1973 defendant agreed with plaintiff that for $14,000 he would furnish the necessary labor and material for building a room onto plaintiff's home. When finished the new room featured, among other things, a leaky roof resulting from shoddy construction, some incredibly poor quality plumbing, and other shortcomings, which to correct, plaintiff had to eventually spend a lot of time and around $1,232.

In his first amended petition plaintiff pleaded the contract and its breach causing $3,060.26 damages in what he denominated a "first cause of action." In a "second cause of action" he alleged that defendant fraudulently obtained final payment of the contract price in the amount of $4,960.46 by falsely representing that the plumbing had passed a final city inspection an orally agreed to condition precedent to the payment. In a "third cause of action" plaintiff sought $15,025.28 in exemplary damages from defendant for the fraud he perpetrated.

The first gross error committed by the trial court was sustaining defendant's "special demurrer" to plaintiff's claim for exemplary damages. It is rudimentary and long standing statutory law that a party has a right to seek exemplary damages "for the breach of an obligation not arising from contract, where the defendant has been guilty of . . . fraud . . . " 23 O.S.1971 § 9. Here plaintiff pleaded a breach of both a contractual obligation and a noncontractual one to refrain from obtaining money from plaintiff under false pretenses which was permissible. Miller v. Wissert, 38 Okl. 808, 134 P. 62 (1913). The fact that plaintiff erroneously referred to his request for punitive damages as a third cause of action 1 did not impair his right to recover them in connection with his

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cause for fraud and the request should not have been removed from the petition by means of sustaining a "special demurrer."

The second obvious error jeopardizing plaintiff's attempt to achieve justice occurred when the trial court, at the close of the evidence, required plaintiff to "elect remedies." No inconsistency of remedies was involved. Sisler v. Jackson, Okl., 460 P.2d 903, 909 (1969). Plaintiff sought only one remedy damages and he did so under two theories: (1) breach of contract, and (2) tort. He was entitled to have both theories submitted to the jury. C. I. T. Corp. v. Shogren, 176 Okl. 388, 55 P.2d 956 (1936). And, as we have already pointed out, the jury should also have been permitted to pass on plaintiff's request for punitive damages in connection with the fraud count. Garrett v. Myers, 190 Okl. 273, 123 P.2d 965 (1942).

As it turned out, plaintiff, handicapped as he was by the judicial excision of vitals from his lawsuit, still managed to achieve a verdict for $4,000 a verdict defendant complains...

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