(concurring in part and in result in part, and dissenting in part).
I concur in result only on the first issue because I would affirm on the merits. I concur on the second issue. I would reverse and remand on the third and last issue because the issue of punitive damages should have been submitted to the jury. Black v. Gardner, 320 N.W.2d 153 (S.D.1982); SDCL 30-17-8; SDCL 21-3-2. Since the jury found that Helene exerted undue influence over Nora resulting in liability of $10,000 involving the transfer of the municipal bonds, the jury should have had the opportunity to consider punitive damages at least on that claim. For the trial court to strike plaintiff’s demand for punitive damages as a matter of law was error. Black, supra.
The majority opinion states: “Fraud must be stated with particularity under SDCL 15-6-9(b). The terms ‘fraud’ and ‘undue influence’ are not specifically synonymous.” They do not have to be “specifically synonymous.” Both rise to a sufficient level to support liability for wrongdoing and a jury instruction on punitive damages. The complaint alleged undue influence, oppression, and malice. If this pleading was insufficient or uncertain, a motion for a more definite statement could have been demanded by Johnson, but was not. Therefore, the pleading was apparently sufficient for Johnson. The pleading was also sufficient to support the jury’s determination of liability. Therefore, it was also sufficient for punitive damages.
Undue influence necessarily involved fraud and oppression here because it constituted taking advantage of a superior position. Even if it is not automatically fraudulent or oppressive, it certainly is a jury question. Black, supra.