concurring and dissenting.
Although I concur with the reaffirmation that Bud Wolf did not waive its right to object to the sufficiency of the evidence to support the award of punitive damages, I cannot agree that the evidence and instructions presented to the jury were so inadequate that we are now required to reverse our earlier decision regarding the $75,000 punitive damages award.
In Travelers Indem. Co. v. Armstrong (1982), Ind., 442 N.E.2d 349, our supreme court explained:
"[P junitive damages should not be allowable upon evidence that is merely consistent with the hypothesis of malice, fraud, gross negligence, or oppressiveness. Rather some evidence should be required that is inconsistent with the hypothesis that the tortious conduct was the result of a mistake of law or fact, honest error of judgment, over-zealousness, mere negligence or other such noniniguitous human failing."
Id at 362.
The jury in the present case certainly could have found Bud Wolf's conduct *573fraudulent. However, the evidence was not inconsistent with a finding of an error in judgment, human failing, or negligence. . The evidence simply does not evince the extreme conduct required of Bud Wolf both by the words of the instructions and by the Indiana Supreme Court. See Orkin Exterminating Co. v. Traina (1986), Ind., 486 N.E.2d 1019; Travelers Indem. Co., supra.
I fail to see how the absence of more elaborate instructions now requires us to change our earlier resolution that clear and convincing evidence of the requisite malice was absent in this case. In fact, the instructions given to the jury used nearly the same language as that employed in Travelers Indem. Co., supra.
The jury was instructed:
"If you find that George and Patsy Robertson are entitled to recover, then in addition to the actual damages to which you find them entitled, you may award an additional amount as punitive damages if you find by clear and convincing evidence that Bud Wolf Chevrolet, Inc., acted with malice, fraud, gross negligence or oppressiveness which was not the result of a mistake of fact or law, honest error or judgment, overzealousness, mere negligence, or other human failing in the sum as you believe will serve to punish the Defendant and to deter it and others from like conduct in the future."
Record at 118 (emphasis supplied) [hereinafter referred to as Punitive Damages Instruction]; see Travelers Indemn. Co., supra.
The jury was also instructed:
"Clear and convincing may be defined as an intermediate standard of proof greater than a preponderance of the evidence and less than proof beyond a reasonable doubt and requires the existence of a fact be highly probable."
Record at 106.
The majority now finds error in the failure of the instructions to emphasize the stringency of the clear and convincing standard and the defendant's presumed innocence. Yet, the jury was informed in sufficient detail of the high burden placed on the plaintiff to merit an award of punitive damages. Furthermore, the jury was explicitly instructed on what conduct it must not find if it were to render a verdict of punitive damages. See Punitive Damages Instruction, supre. In my opinion, the emphasized portion of the Punitive Damages Instruction essentially informed the jury of the defendant's presumed innocence. Cf. Hanas v. Rasmussen (1985), Ind.App., 484 N.E.2d 63, trans. denied (no error to refuse tendered instruction when trial court's given instructions cover substance of proffered instruction).
I still agree with the language in our previous opinion which concludes that, "[wlhile we do not condone Bud Wolf's conduct, we must say, as a matter of law, that the quasi-criminal element of malice was not demonstrated by evidence sufficient to meet the clear and convincing standard." Bud Wolf Chevrolet, Inc. v. Robertson (1986), Ind.App., 496 N.E.2d 771, 777.
Garden variety fraud should not result in punitive damages. See Orkin Exterminating Co., supra; Travelers Indem. Co., supra; Miller Pipeline Corp. v. Broeker (1984), Ind.App., 460 N.E.2d 177. The effect of the majority position is to allow punitive damages for fraud or "mistake of law or fact, honest error of judgment, over-zealousness, mere negligence or other such noniniquitous human failing." Travelers Indem. Co., supra, at 362.
In keeping with our supreme court's reluctance in awarding punitive damages when the evidence does not clearly justify such an extreme measure, I would deny the petition for rehearing. The judgment awarding punitive damages should be reversed.