dissenting.
I respectfully dissent. It is my opinion that the award of exemplary damages under Article 8307c, Tex.Rev.Civ.Stat.Ann., is improper. I would reverse the judgment of the court of civil appeals and remand the cause to the trial court for redetermination of damages.
Article 8307c is a statutory cause of action which protects the employee from wrongful discharge or other discrimination because he files a compensation claim. The “reasonable damages” language contained in Article 8307c is a statutory remedy which grows out of the employer-employee relationship. Exemplary damages may not be recovered for mere violation of a statute. Jones v. Ross, 141 Tex. 415, 173 S.W.2d 1022, 1024 (1943); McDonough v. Zamora, 338 S.W.2d 507, 514 (Tex.Civ.App.-San Antonio 1960, writ ref’d n. r. e.). Breach of the employment relationship gives rise to an action in contract, not in tort. As a general rule exemplary or punitive damages are not allowed for breach of contract. A. L. Carter Lumber Co. v. Saide, 140 Tex. 523, 168 S.W.2d 629, 631 (1943); McDonough v. Zamora, supra at 513. Even if the breach is malicious, intentional or capricious, exemplary damages may not be recovered unless there is a duty imposed by law or a distinct and independent tort is alleged and proved. A. L. Carter Lumber Co. v. Saide, supra at 631; Mobile County Mut. Ins. Co. v. Jewell, 555 S.W.2d 903, 912 (Tex.Civ.App.—El Paso 1977, writ ref’d n. r. e.); McDonough v. Zamora, supra at 513. I would hold that Borner’s suit is a statutory cause of action arising out of the employment relationship and as such, will not support recovery of exemplary damages absent proof of an independent tort.
Section two of Article 8307c provides that an employer shall be liable for “reasonable damages suffered by an employee.” Exemplary damages are not awarded to a plaintiff in order to compensate him, but rather to punish a wrongdoer and deter future acts of wrongful conduct. Southern Cotton Press & Mfg. Co. v. Bradley, 52 Tex. 587, 598-99 (1880); Hays v. Houston G.N.R.R. Co., 46 Tex. 272, 280 (1876); Pedernales Elec. Co-op., Inc. v. Schulz, 583 S.W.2d 882, 884-85 (Tex.Civ.App.-Waco 1979, writ ref’d, n. r. e.); Courtesy Pontiac, Inc. v. Ragsdale, 532 S.W.2d 118, 122 (Tex.Civ.App.-Tyler 1975, writ ref’d n. r. e.); -Bank of North America v. Bell, 493 S.W.2d 633, 636 (Tex.Civ.App—Houston [14th Dist.] 1973, no writ). In my opinion, “reasonable damages suffered by an employee,” means compensatory damages and/or back wages, not exemplary damages.
The cases cited by Borner supporting recovery of exemplary damages are distinguishable. K.W.S. Mfg. Co. v. McMahon, 565 S.W.2d 368 (Tex.Civ.App.-Waco 1978, writ ref’d n. r. e.) was a suit for five percent of the stock of a corporation based on actionable fraud and for wrongful termination of an employment agreement. Exemplary damages were recovered; however, a distinct tort independent of the contract action was involved. The court of civil appeals recognized that exemplary damages cannot be recovered for breach of contract absent an independent tort. Id. at 372.
Christopher v. General Computer Systems, Inc., 560 S.W.2d 698 (Tex.Civ.App-Dallas 1977, writ ref’d n. r. e.) involved an action by the seller of computer equipment against a corporate buyer and its sole stockholder for misappropriation of trust funds. This was held to be a willful tort sufficient to support recovery of exemplary damages. Id. at 707.
Pan American Petroleum Corp. v. Hardy, 370 S.W.2d 904 (Tex.Civ.App.-Waco 1963, *456writ ref’d n. r. e.), was a suit to recover actual damages for failure to develop a gas lease as a prudent operator, and to recover exemplary damages for misrepresentations, falsifications, and concealment of material facts by the defendant. Both actual and exemplary damages were awarded. The court submitted a definition of exemplary damages which included “compensation for inconvenience, reasonable attorney fees, and other losses too remote to be considered under action damages.” Id. at 908. This is similar to the definition submitted in the instant case. Pan American, however, involved an actionable tort. The present case does not.
Allison v. Simmons, 306 S.W.2d 206 (Tex.Civ.App.-Waco 1957, writ ref’d n.r.e.), was a usury case involving conspiracy, interlocking ownership, operation of a usurious brokerage device, and unreasonable harassment in collection methods. Actual and exemplary damages were recovered. The same definition of exemplary damages used in Pan American, supra, was submitted. Id. at 211. The court of civil appeals held the definition proper. Again, Simmons involved a distinct and independent tort action.
Although the majority specifically disapproved the trial court’s definition of “exemplary damages,” it allows recovery of exemplary damages because “there was no objection to the definition of ‘exemplary damages.’ ” I strongly disagree. Carnation specifically objected at trial that such element of damages was not recoverable under Article 8307c, and, therefore, the issue should not have been submitted. Carnation’s objection was specific and sufficient to preserve error on this point. Tex.R.Civ.P. 274; Texas Employers' Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, 1002 (1944).
I would reverse the judgment of the court of civil appeals and remand the cause to the trial court for proper determination of damages.