dissenting. The fundamental duty of an appellate court is to insure that a fair trial is held. Because of two prejudicial errors, the trial under review was unfair. I would reverse and remand for a new trial.
The appellee, plaintiff below, filed suit for arrearages in rent and damages to the rental property. The issues were whether the appellant had paid his rent and whether he had damaged the rental property. There were no other issues. Yet, the appellee was allowed to call a chemist to testify that a substance found at the rental property was marijuana. The testimony of the chemist did not tend to make the existence of any fact at issue more probable or less probable. It was not relevant evidence. Unif. R. Evid. 401, Ark. Stat. Ann. § 28-1001 (Repl. 1979). The evidence, not relevant, was not admissible. Unif. R. Evid. 402. Appellee’s sole purpose in calling the chemist was to unfairly prejudice the jury against the appellant.
A second error was the award of punitive damages. The majority opinion does not state whether affirmance of punitive damages is based on the theory of contract or on the theory of tort.
For more than a century we have held that punitive damages are not ordinarily recoverable for breach of contract. Snow v. Grace, 25 Ark. 570 (1869); McClellan v. Brown, 276 Ark. 28, 632 S.W.2d 406 (1982). The exception is where there is a willful or malicious act in connection with a contract. See Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981). The evidence, which is set out in the majority opinion, does not show any affirmative act by the appellant; instead, it proves a failure to act. A failure to act will not support an award of punitive damages in a contract action. McClellan v. Brown, supra. Therefore, the punitive damages cannot be affirmed on the theory of contract.
Correspondingly, appellant’s breach of his rental contract should not be treated as a tort. In Findley v. Time Ins. Co., 264 Ark. 647, 573 S.W.2d 908 (1978), we stated:
Prosser has pointed out that an action in tort cannot ordinarily be based upon a breach of contract which amounts to mere nonfeasance, which means not doing the thing at all, as distinguished from misfeasance, which means doing it improperly. “Much scorn has been poured on the distinction, but it does draw a valid line between the complete non-performance of a promise, which in the ordinary case is a breach of contract only, and a defective performance, which may also be a matter of tort.” Prosser, Torts, § 92 (4th ed., 1971). We recently applied that very distinction, citing Prosser, in Morrow v. First Nat. Bank of Hot Springs, 261 Ark. 568, 550 S.W.2d 429 (1977).
The lack of affirmative action by a defendant does not always prevent an award of punitive damages. There can be vicarious liability for punitive damages. The general rule is set out in 58 Am.Jur.2d § 458 as follows:
Generally, where there is an attempt to hold one person civilly liable for the negligence of another, it must be made to appear that the relation of principal and agent or master and servant existed between the two at the time the tort was committed, and that the tortious act was committed in the course of employment or within the scope of the agency, or that the person sought to be held responsible was engaged in a joint venture or enterprise with the one who was negligent.
We have held that an award of punitive damages would be justified against an employer railroad for the acts of its servants if the jury found that “the tort or wrong of the servant . . . was in the line of his employment, and was willful, wanton, or malicious.” St. Louis, I.M. & S. Ry. Co. v. Wilson, 70 Ark. 136, 144, 66 S.W. 661 (1905).
The rule has changed little over the years. In Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1982), we held that “a corporation may be held liable for exemplary or punitive damages for such acts of its agents or servants acting within the scope of their employment as would, if done by an individual acting for himself, render him liable for such damages.” Id. at 1044.
However, we adopted a different rule when the principal is an individual. In Foster v. Pitts, 63 Ark. 387, 38 S.W. 1114 (1897), we held that an individual principal is not liable for punitive damages “unless it appears that he aided, adopted, or ratified the malicious act of the agent with full knowledge of the facts.” Id. at 393. Here, the appellant did not aid in, nor adopt, nor ratify the damage done by his guests. He should not be liable for punitive damages. I would reverse and remand for a new trial.
I am authorized to state that Mr. Justice Purtle joins in this dissent.