*24CONCURRING OPINION OF
MARUMOTO, J., IN WHICH ABE, J., JOINSI concur in the result, but cannot agree with the reasoning in the opinion of the court nor with the statement that the contract here was breached in a wanton or reckless manner so as to result in a tortious injury entitling the plaintiffs to recover in tort.
The plaintiffs in the trial below requested and were refused instructions for punitive damages. They appealed that question and that question alone to this court. The issues presented were two in number: first, whether defendants breached a general, i.e. tort, duty owed plaintiffs in a willful and wanton manner so as to entitle them to the traditional instruction for punitive damages; and second, whether there was a contract between the parties and a subsequent breach, and if so, should punitive damages be permitted in such a situation.
In relation to the first issue, this court decided fifty years ago that it was “* * * too well established to admit of argument that in actions of tort punitive damages may, under certain circumstances, be awarded * * Bright v. Quinn, 20 Haw. 504, 511 (1911). There, and in subsequent cases, it was determined that such circumstances existed where the tort injury resulted from defendant’s willful, wanton, malicious, or oppressive conduct. Howell v. Associated Hotels, Ltd., 40 Haw. 492 (1954); Glover, Ltd. v. Fong, 40 Haw. 503 (1954). In Goo v. Continental Casualty Co., 52 Haw. 235, 473 P.2d 563 (1970), we decided that the record of the case must clearly support a finding of the conduct proscribed by the earlier holdings.
Nowhere, however, have we intimated that a defendant’s conduct might be considered as the sole factor determinative of the issues of a case. When one acts, he acts with impunity, unless his actions violate a legal duty imposed upon him by society or assumed by him in agreement with another. Therefore, it is mandatory that the actions of the defendants in this case be examined in *25relation to the violations alleged or proven by the plaintiffs.
The common law duty of a hotel to accommodate all persons who present themselves to it is ancient and well settled in Anglo-American law. Burdick, The Origin of the Peculiar Duties of Public Service Companies, 11 Colum. L. Rev. 514, 743 (1911). The duty is general, owed to the public at large, and seems to have been laid upon the innkeeper only where no special assumpsit to the same effect existed.1 The innkeeper was not obligated to provide the guest with the precise room selected but only with “reasonable and proper” accommodation, Fell v. Knight, 8 M. & W. 268, 275 (Ex. 1841); and there must have been room available at the time of the prospective guest’s presentation. Jackson v. Virginia Hot Springs Co., 209 F. 979, 980 (W.D. Va. 1913).
Considering that there was a contract in existence between the parties here, that the Outrigger arranged to accommodate the plaintiffs at the Pagoda, and that the Outrigger had no vacant rooms at the time of the plaintiffs’ presentation, I see no violation by the defendants of their duty to accommodate. This, therefore, completes my examination of all tortious conduct alleged by the plaintiffs to have been committed by the defendants. I use the term “tortious conduct” in accordance with the overwhelming weight of authority to “ * * * denote the fact that conduct whether of act or omission is of such a character as to subject the actor to liability under the principles of the law of torts.” Restatement of Torts § 6, Kuhn v. Bader, 89 Ohio App. 203, 213, 101 N.E. 2d 322, 328 (1951).
As to the second issue, I encounter no difficulty in finding that a contract for accommodations existed be*26tween the opposing parties. Furthermore, I construe the contract as including both an aesthetic expectation on the part of the plaintiffs and a particular type of accommodation, namely, one in a hotel located on the beach as is the Outrigger. Nor am I hesitant to express my outrage at the greed and lack of consideration exhibited by the hotel.
At this point, however, I must draw the line. Save in actions for breach of a promise to marry, Johnson v. Travis, 33 Minn. 231, 22 N.W. 624 (1885), no other state of this union has ever approved an award of punitive damages in an action ex contractu. See Annot. 84 A.L.R. 1345 (1933). The Restatement of Contracts § 342, reflecting this overwhelming view, flatly prohibits such a recovery. This is so even where the breach is willful, White v. Benkowski, 37 Wis. 2d 285, 155 N.W. 2d 74 (1967), or where the parties have stipulated to such damages. See Norris v. Letchworth, 167 Mo. App. 553, 554, 152 S.W. 421, 422 (1912).
Rather than denying contractual punitive damages solely on the facts of this case, I would join with the other courts of this nation and prohibit them in all contract actions. This would overcome the confusion and doubt engendered by the majority opinion in this case and preserve a freedom of contract unclouded by uncertain legal penalties. It would be better in my opinion to agree with one of the foremost authorities on the subject when he states that “ * # * it is of doubtful wisdom to add to the risks imposed on entering a contract this liability to an acrimonious contest over whether a breach was malicious or fraudulent * * * .” Cf McCormick, Hornbook Series on Damages § 81 at 291 (1st ed. 1935).
Of course where the breach is interwined with a tort then punitive damages may be given. D.L. Farr Lumber Co. v. Weems, 196 Miss. 201, 16 So. 2d 770 (1951). There seem to be two classes of such situations. The first is where the breach of contract is accompanied by a fraud*27ulent act, Wellborn v. Dixon, 70 S.C. 108 49 S.E. 232 (1904), and the second is where the breach is accompanied by an independent tort. Simpson, Punitive Damages for Breach of Contract, 20 Ohio St. L.J. 284, 287 (1959). Neither of those situations exists in this case.
Also, the question of damages for emotional distress is not before us today; yet, it has been decided. It seems far more preferable to me to strain the traditional concept of compensatory damages than to rupture the foundations of tort and contract liability. Accordingly, I would adopt the approach of Kellogg v. Commodore Hotel, 187 Misc. 319, 64 N.Y.S. 2d 131 (Sup. Ct. 1960), and label the damages received by plaintiffs as compensatory.
The Restatement of Torts, both the original and the tentative draft of the Second, at § 866, appear to reflect this latter assumption, for it does not include within the scope of its coverage parties who are under a contractual duty to each other.