concurring.
I concur with the majority opinion on issues I and II.
I also agree that the Supreme Court's recent decision in Traveler's Indemnity Co. v. Armstrong (1982), Ind., 442 N.E.2d 349 is to be applied, albeit not because it announces "the law as it had always existed." See, eg., Linkletter v. Walker (1965), 381 U.S. 618, 85 S.Ct. 1731, 14 LEd.2d 601.
However, I read Traveler's to speak with some particularity on the substantive proof necessary to establish a claim for punitive damages.
In concluding that there should be a requirement of proof by clear and convincing evidence (442 N.E.2d 363) the court was responding to its expressed wonderment concerning "when a heedless or reckless disregard of the consequences will support an inference of oppression or malice so as to support an award of punitive damages and when it will not." (442 N.E.2d 360).
Expressing its opposition to a rule permitting an award of punitive damages upon inferences permissibly drawn from evidence of no greater persuasive value than that required to uphold a finding of breach of contract (442 N.E.2d 363) or of mistake (442 N.E.2d 364), the court stated:
"To avoid such occurrences, punitive damages should not be allowable upon evidence that is merely consistent with the hypothesis of malice, fraud, gross *656negligence or oppressiveness. - Rather some evidence should be required that is inconsistent with the hypothesis that the tortious conduct was the result of a mistake of law or fact, honest error of judgment, overzealousness, mere negligence or other such noninguitous human failing." (Emphasis added)
442 N.E.2d 362.
I agree that the question of punitive damages in the present case must be retried in view of Traveler's.
I therefore concur.