concurring in part, dissenting in part.
I concur in those parts of the majority opinion in which (1) the judgment for compensatory damages is affirmed, (2) the award of attorney fees is disallowed, and (3) the segregation of trials is approved. I respectfully dissent from a part of the majority discussion concerning the judgment for punitive damages. I agree with the majority (as I understand the opinion) that this case is not governed by the Unlawful Trade Practices Act.
I respectfully dissent from that portion of the majority opinion regarding the issue of punitive damages, which commences with the sentence:
"* * * For those reasons, as stated in Harrell, we hold that gross negligence or recklessness is not, in and of itself, sufficient to support an award of punitive damages. * * *”
*243My first reason for this dissent is that I believe the quoted language is unnecessary to the decision of this case. My second reason is that I do not understand the distinction between "wanton misconduct” and conduct which is "grossly negligent or reckless.”1 My third reason is that I do not perceive what additional facts would be necessary "to support an award of punitive damages” where the conduct of the defendant amounts to no more than "gross negligence or recklessness.” Perhaps the majority believe that it is the consequences of reckless conduct which would permit an award of punitive damages. I cannot conceive of a situation in which the plaintiff would be entitled to go to the jury on general damages under 1 Restatement of Torts 2d, § 46 (Outrageous Conduct Causing Severe Emotional Distress) where the jury should not also be empowered to award punitive damages. Yet under § 46 one may be liable for recklessly inflicting severe emotional distress as well as intentionally inflicting severe emotional distress. See Comment i:
"The rule stated in this Section applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct. It applies also where he acts recklessly, as that term is defined in § 500, in deliberate disregard of a high degree of probability that the emotional distress will follow.”
In addition to my misgivings concerning the meaning of the language quoted from the majority opinion, I note the conscious choice of the elected representatives of the people of this state, namely the legislature, to permit the trier of fact to award punitive damages for conduct which would ordinarily amount to simple negligence only. The Unlawful Trade Practices Act, ORS 646.605 to 646.652, provides for the allowance of *244punitive damages for what appears to be "ordinary negligence.” ORS 646.638 permits an award of punitive damages against one who engages in an unlawful practice proscribed by ORS 646.608 if the person perpetrating the unlawful trade practice "knew or should have known that his conduct was a violation.” ORS 646.605(9).
I realize that this case is not truly concerned with an unlawful trade practice, although the parties, one or the other, have tangentially treated it as if it were. If it were truly to be governed by the Unlawful Trade Practices Act, this case would not and should not by reason of statute permit this court to reject an award of punitive damages by the trier of fact.
I discern a tendency in the decisions of this court to limit the situations in which a trier of fact may award punitive damages at the same time that the people of this state, speaking through their elected representatives in the legislative assembly, seek to impose sanctions upon proscribed conduct by permitting the victims of such conduct to recover punitive damages. See, e.g., the Unlawful Trade Practices Act, supra; the Oregon Antitrust Law, ORS 646.705 to 646.805; the Antiprice Discrimination Law, 646.010 to 646.180. It is true that sometimes the legislature refers to this kind of damages as treble damages; nevertheless, the effect is to impose punitive damages. Why the tender concern of this court for the plight of the grossly negligent or reckless wrongdoer escapes me.
In this case the defendant had in its possession neither a "duly assigned certificate of title” nor a "bill of sale from the registered owner” of the car at the time of its sale to plaintiff. If the trier of fact were to find that this conduct on the part of the defendant amounted to recklessness, I would hold that the trier of fact should be permitted in its sole discretion to award punitive damages.
*245Insofar as the separate opinion of Justice Holman is concerned, I simply wish to note my concern as to whether one who has "paid value for the vehicle” has an insurable interest.
I believe this state is committed not only with respect to the guest passenger law but with respect to the general law to the proposition that gross negligence is synonymous with recklessness. See Williamson v. McKenna, 223 Or 366, 354 P2d 56; ORS 161.085(9); 2 Restatement of Torts 2d, § 500. Compare Falls v. Mortensen, 207 Or 130, 295 P2d 182 (1956); Cook v. Kinzua Fine Mills Co. et al, 207 Or 34, 293 P2d 717 (1956).