(concurring).
Appellee sued for $50,000.00 as damages for willful and malicious conduct on the part of the appellant which was alleged to have damaged appellee’s reputation. The jury awarded $15,000.00 as exemplary damages. The trial court excluded this amount from the final judgment.
Appellant in his points 20 through 30, all relating to the exemplary damage issues, contends in effect that the trial court erred: in admitting into evidence a certain exhibit offered by the plaintiff and certain evidence relative to punitive damages; in overruling appellant’s objections and request for instructions to disregard, when appellee argued to the jury concerning this certain plaintiff’s exhibit; in overruling objections to certain testimony outside of the pleadings; in submitting special issues 4 and 5; and in permitting appellee to make certain arguments to the jury relative to punitive damages. Appellee by counterpoint contends that the damages should be reinstated, and added to the judgment.
Appellee sought damages for libel and slander, pleading that such sum represented actual damages to his reputation. Nowhere in the pleadings did appellee seek “punitive damages” nor was the term “exemplary damages” used in the petition. The original petition seeking such damages was excepted to and the exceptions were sustained by the trial court. Appellee’s amended petition then set forth certain libelous or slanderous statements or writings, contending that the contractor was damaged. This paragraph *304in the amended petition relating to such damages reads as follows:
VI.
“In addition thereto, Contractor would show that the Owner acted willfully, maliciously and with utter and complete disregard for the rights of Contractor; has called other owners and operators of pipe lines throughout South Texas and advised them it was terminating Contractor’s contracts and made false allegations with reference to Contractor’s ability to erect and construct pipe lines, as hereinafter alleged, which willful and malicious conduct on Owner’s part has damaged Contractor’s reputation as a pipe line contractor in the amount of $50,000.-00, which sum Owner ⅛ obligated to pay Contractor. On or about October 16 and 17, 1963, Owner’s duly authorized agent, Tommie E. Lohman, in the course of his employment called Mr. Coyle of Sun Oil Co. and Mr. Bell of Mobil Oil Co. and told them in substance that contractor, Lewis was not capable of laying larger oil field pipe lines, didn’t know what he was doing, didn’t have proper equipment and that Owner Delhi was firing him off their job; on or about the same dates, Owner Delhi’s duly authorized agents, Butler and Quinn, told Tom Kelso, Andrew Quillan and Harry Ebers in substance, ‘Lewis doesn’t know what he’s doing. Let’s go ahead and break the s. o. b.’ ”
The principle of law involved is correctly stated in McDonough v. Zamora, Tex.Civ. App., 338 S.W.2d 507, ref., n. r. e., by Justice Pope. See collection of cases cited therein.
“Punitive damages are not recoverable in actions for breach of ordinary commercial contracts, though the breach is brought about capriciously and with malice.”
The allegations in plaintiffs petition which would entitle him to exemplary damages would have to be confined to tort, independently of any right to recover damages by reason of the breach of the contract. As stated in the opinion: (McDonough v. Zamora, supra)
“In other words, one may not be limited to a contract measure of damages if he actually pleads and proves a tort which is in addition to or coincident with a contract breach. It has been said that punitive damages are permitted when a breach is accompanied by ‘willful acts of violence, malicious or oppressive conduct.’ ”
The intentional breach of a contract is not punishable by punitive damages. A. L. Carter Lumber Co. v. Saide, 140 Tex. 523, 168 S.W.2d 629. The cases which apply the correct rule are those in which punitive damages have been allowed if and only if a distinct tort is alleged and proved independent but coincident to the contract action. The reason why the trial court was authorized to disregard the jury findings as to the exemplary damages was because the plaintiff did not plead, or request, or submit a special issue concerning the tortuous conduct of the defendant or his agents. This cannot be the basis for recovery through the instruction as submitted by the trial court to the jury, i. e., “Punitive damages may be assessed as punishment for wrongful acts done, if the facts warrant the same.” There were no facts proved or found by the jury authorizing exemplary or punitive damages.
The trial court was further in error in instructing the jury that: “In awarding such damages, (punitive) if any, you may consider the sense of wrong and insult to the Plaintiff Lewis, Inc., and the damage to his reputation, if any as a result of the wrongful acts, if any, of the Defendant Delhi Pipeline Corporation.” Special issues 4 and 5 should not have been submitted. *305However, the denial of the exemplary damages by the trial court when judgment was entered, cured such error.
At the time of the trial, appellee announced to the court that Lewis was withdrawing and abandoning its claim for libel and slander, and that in lieu thereof it was seeking punitive damages for malicious breach of contract. The rule of law is that in order to permit a recovery of exemplary or punitive damages, the breach of contract must be attended by some intentional wrong, injury, abuse or gross negligence which amounts to an independent tort. The fraudulent intent done with a fraudulent act is not a sufficient basis for the awarding of punitive damages. Unless the ap-pellee having alleged and produced some evidence of some willful acts of violence, malicious or oppressive conduct, then the trial court would not be authorized to submit an issue. If on the other hand appellee had plead and proved such tortuous act, then he would have to go one step further and have a finding that the principal (corporation) authorized, ratified or approved the act; or that the person responsible for the act was representing the appellant corporation in his managerial capacity and acting within the scope of his employment. I am unable to find from appellee’s pleading, such an act or count that would entitle him to an issue for exemplary damages. Macfadden’s Publications v. Hardy, Tex. Civ.App., 95 S.W.2d 1023 (1936, wr. ref.).
The conduct complained of by the ap-pellee in its pleadings may have been a separate and independent cause of action for actual and punitive or exemplary damages. However, we are not called upon to decide this point. In this case the independent tort must be coincident to the contract breach. Tortuous conduct committed after the breach of contract, no matter how malicious or inexcusable will not form the basis for recovery of punitive damages for a breach of contract. Oklahoma Fire Insurance Co. v. Ross, Tex.Civ.App., 170 S.W. 1062. In the Oklahoma Fire Insurance Co. v. Ross case, the Court was called upon to examine a judgment awarding actual damages for the breach of contract and in addition punitive damages. The Court said:
“ * * * the fact that the proof may have shown a cause of action for slander afforded no ground for a recovery of punitory damages for a breach of the contract, when the slander referred to was no part of and not connected with the breach of the contract. Hence we conclude that the plaintiff was not entitled to recover anything as punitory damages, and the court should have so instructed the jury.”
See 25 C.J.S. Damages § 120, pp. 1126-1129.
As to the other points alleged as error by the appellant, a review of the evidence discloses that much of the testimony complained of grew out of the actual breach of the contract by which the court submitted issues as to damages for such breach. In the Oklahoma Fire Insurance Co. v. Ross, supra, it was contended that reversible error was not committed in permitting the plaintiff to introduce testimony tending to sustain the slanderous charges, where such damages were not allowed. The Court said and I agree that:
“ * * * If it be conceded that the testimony referred to was not admissible, we see no reason to suppose that it had any influence with the jury in determining whether or not the insurance company had breached the contract, and the amount of actual damages the plaintiff was entitled to recover for such breach. Doubtless that testimony was considered by the jury and spent its full force in determining the question and of the amount of punitory damages; but, as we have concluded to reverse and render upon that issue, we hold that the insurance company is entitled to no further relief because of the admission of that testimony.” Oklahoma Fire Insurance Co. v. Ross, supra.
*306I am not convinced, therefore, that the appellant has demonstrated that such error that has been complained of and committed, amounted to such a denial of the rights of the appellant, as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in this case. Rule 434, T.R.C.P. I concur in the result that the judgment of the trial court should be affirmed.