Jeffersonville Silgas, Inc. v. Wilson

• Decision Date: 11 December 1972
• Docket Number: No. 1--872A52,1--872A52
• Citation: 154 Ind.App. 398,290 N.E.2d 113
• Parties: JEFFERSONVILLE SILGAS, INC. and Mandison Silgas, Inc., Defendants-Appellants, v. Robert N. WILSON and Evelyn Wilson, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 113

290 N.E.2d 113

154 Ind.App. 398

JEFFERSONVILLE SILGAS, INC. and Mandison Silgas, Inc. Defendants-Appellants, v. Robert N. WILSON and Evelyn Wilson, Plaintiffs-Appellees.

No. 1--872A52.

Court of Appeals of Indiana, First District.

Dec. 11, 1972.

George A. Leininger, Jr., Schnaitter & Leininger, Madison, for appellants.

John Ready O'Conner, Ted R. Todd, Ford, Hensley & Todd, Madison, for appellees.

LOWDERMILK, Judge.

This is an appeal from a judgment in favor of the plaintiffs-appellees for conversion of a gas tank and fuel system. The case was tried to the court without a jury, with evidence consisting of answers to interrogatories, stipulations of certain facts, and testimony by both plaintiffs-appellees, Robert N. Wilson and his wife, Evelyn Wilson.

Defendants-appellants, Jeffersonville Silgas, Inc. and Madison Silgas, Inc., declined to present any evidence or witnesses and rested their case at the conclusion of appellants' case.

Judgment was in the amount stipulated as the value of the tank and fuel, plus interest from the date of the taking; plus the amounts prayed for mental anguish ($2,000.00) and punitive damages ($5,000.00). Appellants timely filed their motion to correct errors, which was overruled by the trial court, and this appeal follows.

Appellants admit to liability for the conversion of the tank and fuel and at trial stipulated the worth of said tank and fuel to be $380.00, plus interest from the date of conversion, which interest was in the sum of $187.09.

The issues presented by the motion to correct errors are the decision of the trial court is contrary to law, contrary to the evidence, and awarded the appellees an excessive amount of recovery.

The facts may be briefy stated as follows. In 1952, the appellees had purchased outright a one thousand gallon fuel tank from appellants and used the tank until October of 1963. Appellees purchased fuel from appellants continuously during this period of years.

Prior to the taking, a representative of appellants called on Mrs. Wilson and informed her that the company was going to take the tank because there had been no order to refill it. Mrs. Wilson's response was to the effect that the representative would have to talk to Mr. Wilson. The record is silent as to whether or not she did discuss this with Mr. Wilson.

The tank was taken by appellants a few days later while appellees were in the process of moving to a new home and this conversion was subsequently discovered by the appellees. Mr. Wilson then went to the office of appellants and discussed the problem with a clerk, who, in error, informed him that appellants owned the tank and had removed it. Mr. Wilson stated he became so angry he was shaking and left without further discussion. There is nothing in the record to show that Mr. Wilson even attempted to explain to the clerk with whom he talked that he was the owner of the tank and had purchased the same when it was first set on his property and had continued to be the owner in sole possession of the same. Appellees had no further contact with appellants until the trial of this action.

Appellants first contend that the trial court's decision granting the appellees punitive damages was contrary to law and appellants argue that punitive (or exemplary) damages cannot properly be awarded unless malice, fraud, gross negligence, oppression, or willful and wanton misconduct on its part has been proved by the evidence.

Appellants rely on the case of Murphy Auto Sales, Inc., et al. v. Coomer et al. (1953), 123 Ind.App. 709, 112 N.E.2d 589, which recognized that the rule allowing punitive damages has traditionally been construed strictly. The court, in Murphy, stated the rule as follows:

'. . . It seems clear that despite conflicting expressions the courts of this state have recognized punitive or exemplary damages in a proper case. Punitive or exemplary damages do not rest upon any ground of abstract or theoretical justice but upon the basis of an established public policy which seeks to promote the public safety and to punish through the medium of a civil proceeding a fraudulent wrongdoer, and where malice, gross fraud and oppressive conduct is shown punitive damages are allowable to deter other wrongdoers from offending in a like manner. . . . The doctrine of punitive or exemplary damages has been sparingly applied and strictly limited by the adjudicated cases in this state. . . .'

The court went on to hold that punitive damages were proper in Murphy becasue of aggravated circumstances.

This court discussed the question of punitive damages in the case of Sinclair Refining Co. v. McCullom, et al. (1940), 107 Ind.App. 356, 365, 24 N.E.2d 784, 788, as follows:

'It must be conceded, as a general rule, that in order that there may be a recovery of exemplary damages, there must be present in the circumstances some element of malice, fraud, or gross negligence. In other words, the wrongs to which exemplary damages are applicable are those, which besides violating a right and inflicting actual damages, import insult, fraud, or oppression and are not merely injuries, but injuries inflicted in a spirit of wanton disregard of the rights of others.

'Mere negligence alone does not authorize punitive damages. . . .'

Both parties rely on the case of Monarch Buick Company, Inc. v. Kennedy (1965), 138 Ind.App. 1, 3, 209 N.E.2d 922, 924, which is an action in conversion wherein the defendant-appellant was charged with tortiously converting the appellee's automobile and in which the plaintiff-appellee prayed for exemplary damages.

Our Supreme Court stated:

'. . . that where '. . . malice or oppression weigh in the controversy, exemplary or vindictive damages may be assessed.' The Louisville, New Albany and Chicago Railway Company v. Wolfe (1891), 128 Ind. 347, 352--353, 27 N.E. 606. Fraud of the defendant in his actions toward the plaintiff is also an element. Murphy Auto Sales, Inc. et al. v. Coomer, et al. (1953), 123 Ind.App. 709, 112 N.E.2d 589. The general rule concerning whether exemplary damages are allowabe in actions in conversion is found in 89 C.J.S., Trover & Conversion, § 148(b) wherein it is stated:

"It is proper to submit to the jury the question of exemplary damages where the facts authorize a finding of malicious or reckless and wanton conversion."

Appellants contend that the burden of proof is on the plaintiffs-appellees to establish the elements required for punitive damages and argue that there was not sufficient evidence to properly award punitive damages in this case.

Plaintiffs-appellees contend that a prima facie case was established at the trial and that it was proper to award punitive damages. Appellees further argue that only one element, i.e., malice, fraud, oppression, et cetera, need be shown to establish a basis for awarding punitive damages.

Appellees argue in their brief only one theory to establish that punitive damages were properly awarded. Appellees depend on the doctrine of 'implied malice' and contend that appellants' action in converting the tank was reckless, which can be inferred from the fact that the contract prepared by the appellants in 1952 specifically stated that appellees were the owners of the tank in question. Appellees further contend that there is an inference or implication of reckless and malicious conduct from the fact appellants' clerk refused to recognize any right of the appellees to the tank when Mr. Wilson went to the office of appellants to protest.

We must necessarily determine from the cases above cited that before a court may properly award punitive damages there must be some element of malice, fraud, oppression, gross negligence, or willful and wanton misconduct shown on the part of the defendant for the plaintiff to meet plaintiff's burden of proof. It is also noted that the words 'or willful and wanton misconduct' are in the conjunctive and is one and only one separate element.

Defendants-appellants' next contention is that the trial court's granting of damages for mental anguish was contrary to law, not supported by sufficient evidence, and excessive.

Plaintiffs-appellees answer this with the argument that damages for mental anguish were proper and supported by evidence of harassment and mental distress.

To support their contention plaintiffs-appellees appellees cite Anchor Stove and Furniture Co. v. Blackwood (1941), 109 Ind.App. 357, 37 N.E.2d 117, wherein damages for mental anguish were not awarded. Anchor was a replevin action, with an award of $50.00 in addition to compensatory damages. Plaintiffs-appellees, in the case at bar, contend that in Anchor the $50.00 damages were for mental anguish, but a careful reading of that case discloses that such is not correct. The trial court awarded the $50.00 for the taking and withholding of the property, but there is no mention made of damages for mental anguish.

Plaintiffs-appellees also cited Aetna Life Insurance Company v. Burton (1938), 104 Ind.App. 576, 12 N.E.2d 360, where damages for mental anguish were allowed. In this case the defendant performed an illegal autopsy on the deceased husband of the plaintiff. This case involved facts which were special to removing the innards of plaintiff's husband without her consent and his body when in the casket had a bloody looking substance running from the nose. It is our opinion that Aetna is so dissimilar to the case at bar that it is not authority for the position taken by plaintiffs-appellees.

Plaintiffs-appellees further rely on the case of Indiana Railway Company v. Orr (1908), 41 Ind.App. 426, 84 N.E. 32, where the plaintiff was wrongfully ordered off a streetcar with implied threats of physical violence in front of witnesses known to the plaintiff. The court in that case found that an implied threat of violence was present, although no physical contact or injury occurred.

The Aetna Life Insurance Company case is distinguished by Berrier v. Beneficial...