(dissenting).
The principal vice of the majority opinion is that the Appellant (Plaintiff) did allege in paragraphs four, five and six of his petition that the action of the Appellee (Defendant) was tortious. More particularly, in paragraph six, the Appellant made the following allegations:
“That the assignment by the said E. A'. Juzwik (Defendant) of the undivided %2nd interest in said leases which he held in trust for this plaintiff to Helmco, Ltd., Inc., as aforesaid, was done falsely, fraudulently, willfully, and maliciously with the intent to defraud plaintiff of his said interest in'said leases which the said E. A. Juzwik held in trust for him.” (Emphasis and parenthetical word supplied.)
Following the allegation as last described, Plaintiff sought punitive damages in the sum of $6,000.00.
Simplifying the pleadings, it is my opinion that Plaintiff alleged the existence of the aforementioned contract as a trust agreement and then elected to pursue recovery ex delicto, including punitive damages.
In response to the pleadings mentioned aforesaid, the Appellee (Defendant) filed, among other pleadings, a demurrer. It is fundamental in dealing with a demurrer that the Court must treat every allegation of the plaintiff, and logical conclusions arising therefrom, in a light most favorable to such party. This, in my opinion, includes the very existence of the trust agreement which the majority seems to feel must be established before any recovery of any kind could be made. I do not quarrel with the majority when it correctly states that the existence of a contract (trust agreement) is ordinarily an equitable matter. I do find fault with the majority, however, when it completely overlooks the effect of the Defendant’s (Appellee’s) demurrer. No citation is necessary when I would remind the majority that “a petition must be liberally construed upon a demurrer.” 1
Burton (Appellant) contends, among other things, that the gravamen of his cause of action against Juzwik (Appellee) is not the oral contract or trust agreement, but is Appellee’s willful, malicious, and intentional breach of contract, tortious in nature, entitling Appellant to both punitive damages and a jury trial. Appellee contends, on the other hand, that the gravamen of Appellant’s cause of action is equitable to establish a resulting or constructive trust arising from an oral contract, not subject to 23 O.S.A.1971 § 9 or giving right to a jury trial.
In the early case of Oklahoma Natural Gas Co. v. Pack, 186 Okl. 330, 97 P.2d 768 (1939), a case involving the differential in damages between contract and tort action, *21this Court held that . . the contention that plaintiffs are limited to an action for breach of contract is incorrect.” In its first syllabus in that case, this Court held:
“Accompanying every contract is a common law duty to perform the thing agreed to be done with care, skill, reasonable expediency, and faithfulness, and a negligent failure to observe any of these conditions is a tort as well as a breach of contract, and the injured party may elect to sue upon the contract or treat the wrong as a tort and bring an action ex delicto.”
This Court has consistently followed this rule as to both negligent and intentional failure to perform contractual obligations. See Jackson v. Central Torpedo Co., 117 Okl. 245, 246 P. 426, 46 A.L.R. 338; Oklahoma Natural Gas Co. v. Graham, 188 Okl. 521, 111 P.2d 173; Morriss v. Barton, 200 Okl. 4, 190 P.2d 451, and Hall Jones Oil Corp. v. Claro, 459 P.2d 858 (Okl.1969).
Either by an examination of the pleadings as suggested by Vogel v. Cobb, 193 Okl. 64, 141 P.2d 276, 148 A.L.R. 774, or by inquiry into the nature of the grievance for which redress is sought as required by Morriss, supra, it can be seen that Appellant alleged a cause of action tortious in nature, and should not have been restricted to contract action recovery or equitable actions procedures by the rulings of the trial court. As this Court said at syllabus 2 in Jackson, supra:
“Where the transaction complained of had its origin in a contract which places the parties in such a relation that in attempting to perform the promised service the tort was committed, then the breach of the contract is not the gravamen of the action. The contract in such case is mere inducement, creating the state of things which furnishes the occasion of the tort, and in all such cases the remedy is an action ‘ex delicto’ and not an action ‘ex contractu.’ ”
I am persuaded the instant case falls within that above rule, since the grievance Appellant seeks to redress is the alleged wrongful transfer of his interest in the aforesaid leases — however that tort was occasioned, and regardless of the contractual nature of the obligation which was violated.
Appellee suggests that Appellant’s cause of action arises solely in contract under 23 O.S.1971 § 9 and that Appellant is not entitled to punitive damages. He also argues that the primary question concerned is to establish the existence of the trust agreement and rightfully argues the existence of a trust is equitable in nature and as such is a non-jury matter. The fault in his latter argument is that he completely overlooks the effect of his demurrer, and I assert that at the time of the hearing when the demurrer had been filed that all legal conclusions and inferences plead in Appellant’s Petition must be construed most favorably to Appellant, including the existence of the performed contract. It logically follows that under Oklahoma Natural Gas Co. v. Pack, supra, Appellant is entitled to elect in favor of his action plead ex delicto. In the case of Hobbs v. Smith, 27 Okl. 830, 115 P. 347 (1911), a cause of action involving sale of diseased livestock under false pretenses pursuant to a sale agreement, it was held that the plaintiffs were entitled to bring a tort action, and recover exemplary damages. This Court stated:
“ . . . where a breach of contract is permeated with tort, the injured person may elect to waive the contract and recover in tort; or, differently stated, although the relation between the parties may have been established by contract, express or implied, if the law imposes certain duties because of the existence of that relation, the contract obligation may be waived, and an action in tort maintained for the violation of such imposed duties.”
Review of the pleadings reveals that Burton (Appellant) may have been entitled to seek punitive damages if his evidence would support a cause of action in tort. At least he was entitled to have his pleadings liberally construed when the demurrer *22was considered, and to present his evidence.
An additional reason for reversal may exist. It would have been much better trial practice to have ordered a preliminary hearing, without a jury, as to the existence of a trust agreement or the establishment thereof. If the trial court had followed this procedure, and no contract (trust agreement) had been proven, then Defendant (Appellee) would be entitled to have his demurrer sustained. On the other hand, if the Plaintiff (Appellant) proved the existence of the trust agreement then a trial by jury should follow since on either theory, ex contractu or ex delicto, Plaintiff (Appellant) would be entitled to a jury. Such action would have been best and proper and would have preserved both the Plaintiff’s and the Defendant’s rights, for the Defendant at the end of the Plaintiff’s evidence would certainly be entitled to demur as to whether or not the proof showed him entitled to relief ex contractu or ex delicto, or any at all.
I do not say by this dissenting opinion that Appellant is absolutely entitled to an instruction as to punitive damages at the time of trial, unless his evidence at such time entitled him thereto.
I think the majority opinion wrong for an additional reason. To me it overlooks those cases which say that the nature of the grievance rather than the form of the pleadings should be the deciding factor in whether or not the cause sounds ex delicto or ex contractu. See Morriss v. Barton, supra, syllabus 6 :
“Whether an action sounds in tort or arises ex contractu must be determined by the nature of plaintiff’s grievance rather than the form of the pleading.”
and, at page 457 of 190 P.2d:
“If the transaction complained of had its origin in a contract which placed the parties in such a relation that, in attempting to perform the promised service, the tort was committed, then the breach of the contract is not the gravamen of the suit. The contract in such case is mere inducement, creating the state of things which furnishes the occasion of the tort, and in all such cases the remedy is an action on the case.”
According to Black’s Law Dictionary, 4th Edition, “action on the case” is defined “in its most comprehensive signification, it includes ‘assumpsit’ as well as an action in form ex delicto; at present when it is mentioned it is usually understood to mean an action in form ex delicto.”
I am authorized to state that WILLIAMS, V. C. J. and SIMMS, J. join me in this dissenting opinion.
. 11A Oklahoma Digest, Pleading, <⅜^34(1).