ON MOTION FOR REHEARING. There has been filed on behalf of defendant a motion for rehearing attacking chiefly that portion of our principal opinion having to do with the points raised in connection with the allowance of punitive damages. While defendant assails, among other things, the amount of such punitive award when measured in the light of the proportion it bears to the actual damages allowed, we are nevertheless content to rest our views on that phase of the case upon what has already been said in our principal opinion. If the case was one permitting the allowance of punitive damages we are convinced that the record discloses no basis for the belief that the jury were swayed by any improper motives in the matter of their allowance. The real issue goes therefore to the question of the propriety of the allowance of punitive damages at all in a case of this character, with defendant insisting in its motion that in holding that such issue was submissible we have not only failed to follow the last controlling decisions of our Supreme Court but have brought ourselves into conflict with the established rule prevailing in all jurisdictions.
Now our conclusion upon the question was based largely upon the authority of the late cases of Luikart v. Miller (Mo. Sup.), 48 S.W.2d 867, and Finke v. Boyer, 331 Mo. 1242,56 S.W.2d 372, both of which were actions for fraud and deceit, and in both of which it was expressly held, as we have pointed out in our principal opinion, that punitive damages can be awarded in cases of such character, provided only that the fraudulent representations counted upon were attended and characterized by malice, even though limited to implied or legal malice as distinguished from express or actual malice.
But defendant says that those cases can furnish no authority for our conclusion in the case at bar, since in both of them the element of trust and confidence existed between vendor and vendee, thus serving to have brought those cases within the doctrine consistently contended for by defendant, that for punitive damages to be allowed in an action for fraud and deceit the wrong of the defendant must involve violation of duty springing from a relation of trust and confidence.
We think there are two obvious answers to such suggestion on the part of defendant. In the first place, in neither of those cases did the court refer to the fact of any fiduciary relationship as being *Page 202 determinative of the right to punitive damages upon proper proof as we think it would undoubtedly have done had it intended its decision to turn upon any such proposition; and in the second place, just as was recognized by defendant itself in the course of its original briefs, in both of those cases there were parties defendant who concededly stood in no confidential relationship to the plaintiff or plaintiffs therein.
To the contrary of defendant's contention, we think the court was intending to express no new doctrine, but only to follow the theory of damages long established in this state as evidenced by its decision in Albers v. The Merchants' Exchange of St. Louis,138 Mo. 140, 159, 39 S.W. 473; wherein the court said:
"Compensation for actual loss is the professed object of the law, except where there has been fraud, oppression, or malice. In these latter cases the jury are allowed to give punitive or exemplary damages."
Furthermore it is significant that in adhering to such theory our courts find themselves in accord with what is said to be the weight of authority upon that question.
In Smith on Fraud, sec. 290, p. 311, wherein the author undertakes a discussion of the general aspects of the question now at issue, it is said:
"The allowance of exemplary damages in actions based on fraud, fraud in fact, has been the subject of much discussion, but the great weight of authority is that, in a case of actual fraud, they may be recovered."
And in 4 Sutherland on Damages (4 Ed.), sec. 1178, p. 4432, the author says of the propriety of the allowance of punitive damages in an action for fraud and deceit:
"On the principle upon which such damages are allowed where the doctrine of punitory damages prevails it is not easy to see how they are to be excluded as matter of law in cases of wilful and deliberate fraud followed by actual damage."
So we are constrained to adhere to the conclusions reached in our principal opinion regarding the propriety of the court's submission of the issue of punitive damages, and defendant's motion for a rehearing should therefore be overruled. The commissioner so recommends.