dissenting.
I disagree with that part of the majority opinion which holds it is proper to allow a civil jury to award punitive damages as punishment and as a warning to others after a criminal proceeding has already imposed sanctions by way of incarceration and fine for the identical purposes. Punitive damages, we have said, are "awarded by way of punishment to the offender and as a warning to others,” Martin v. Cambas, 134 Or 257, 261, 293 P 601 (1930), and they *219"can only be justified on the theory of determent,” Noe v. Kaiser Foundation Hosp., 248 Or 420, 425, 435 P2d 306, 27 ALR3d 1268 (1967). In order to see that the purposes of punitive damages are identical with those for the imposition of criminal punishment, we have only to consult ORS 161.025, which enumerates the purposes sought to be accomplished by the chapter on crimes and punishments. This section states, in part:
“(1) The general purposes of chapter 743, Oregon Laws 1971, are:
"(a) To ensure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the correction and rehabilitation of those convicted, and their confinement when required in the interests of public protection.
"(b) To forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests.
"(c) To give fair warning of the nature of the conduct declared to constitute an offense and of the sentences authorized upon conviction.
"* * * * *.” (Emphasis added.)
The majority’s essential failure is to explain by what logic the law should provide for two successful proceedings to punish a wrongdoer — something the common law does in no other context. The writer of this dissent has enough difficulty explaining why the law should provide two proceedings, one criminal and the other civil, to accomplish the same purpose, let alone explain why there should be two successive successful proceedings.
The clear thrust of the majority opinion is that the imposition of the penalties provided by the criminal law are inadequate to deter. The majority says,
"During our consideration of this case it has been argued to us that because of the enactment of ORS 161.025(1), although the legislature may not have had the particular culprit in mind when it set the range of penalties for crimes, it did set minimum and maximum standards which the legislature believed to be sufficient *220to deter in the gamut of cases. We reject this line of reasoning.”
This rejection is made directly in the face of the following declarations in ORS 161.025 which state the legislature’s further purposes:
"(e) To differentiate on reasonable grounds between serious and minor offenses.
"(f) To prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders.
"(g) To safeguard offenders against excessive, disproportionate or arbitrary punishment.” (Emphasis added.)
By what process the majority arbitrarily rejects the legislature’s stated proposes is not apparent.
In addition, the majority contends that, in setting maximum sentencing standards, the legislature anticipated the availability of punitive damages as an additional sanction. There is, of course, no evidence to support this contention; and, indeed, the portions of ORS 161.025 set forth above support the opposite contention. The position of the majority seems to be that the legislature set maximum sentences which it nevertheless believed were inadequate to carry out its purpose of determent. This is a very peculiar way to read a statute — to conclude that the legislature intentionally failed to achieve its stated purpose. Without sensing any inconsistency, the majority then turns around and argues that there is nothing unique about allowing punitive damages after criminal sanctions have been exacted because in one instance Oregon’s legislature has explicitly so provided.
The majority uses the argument that only the more serious conduct is prosecuted criminally and that this dissent’s proposal would leave those guilty of less serious offenses subject to punitive damages while those guilty of more serious conduct would not be. This argument is only as good as the majority’s asumption that those guilty of serious conduct will not go to jail or be otherwise adequately punished for the seriousness *221of their offenses by the criminal justice system whose purpose is adequate punishment and determent — an assumption for which I claim there is no basis.
It is argued that in cases of this kind it was not the intention of the legislature to preclude the civil courts from allowing punitive damages because ORS 161.045(3) states that the Oregon Criminal Code of 1971 does not affect any right or liability to damages or penalty authorized by law in a civil action. However, the courts, not the legislature, created punitive damages for cases like this one, and the above statute does not address the problem of whether it is sensible for the common law to allow punitive damages in situations in which sanctions have already been applied by a criminal court. The statute says only that the legislature will not interfere if civil courts think that punitive damages are proper under the circumstances. The question of their propriety is the one under consideration here, given the facts of prior criminal punishment and the stated legislative purposes in providing for criminal sanctions.
In summation, the majority opinion amounts to a holding that persons sentenced for crimes should be punished a second time by the circuit courts despite the intention of the legislature that the penalties it was prescribing be "proportionate to the seriousness of offenses,” that they "[prevent] the commission of offenses through [their] deterrent influence,” that they "safeguard offenders against excessive disproportionate or arbitrary punishment,” and that they "give fair warning.” In the face of these legislative statements, the majority says that "[w]e must assume the position of the proverbial ostrich to believe that the 'gamut’ of sanctions provided by the criminal code of this state deters crime.” The majority then moves into the business of assessing penalties for crime where the legislative penalty has already been exacted for the same purpose and for the same conduct. I lack the omniscience of the majority which causes it to con-*222elude that insufficiency of legislative penalties is the cause of the increase in crime.
Finally, the majority finds it necessary to bolster its legal position by finding that defendants have failed to comply with our rules and are therefore in no position to assert their legal position. Rule 6.18 of our appellate Rules of Procedure is normally applied only when the court is actually inconvenienced by a party’s failure to comply. This is not such a case.
DENECKE, C. J., joins in this dissent.