ELKINGTON, J. I concur in the opinion of my respected colleagues for I find in it no error. I, as they, believe that the reduced $2.5 million punitive damage award is authorized by existing law.
I likewise concur in their view that the reprehensible conduct of defendant Sears, Roebuck & Company in this case is deserving of stern retribution. But I do not believe California’s legislative and judicial authority to be so barren of remedial resources that retribution may be accomplished only by giving to plaintiffs a windfall, to which they concededly have no right, of more than 15 times their total compensatory damages as found by the jury.
I am fearful that the law of punitive damages as it has developed in this state no longer serves any public policy, or the legitimate interests of the unentitled recipients of its constantly accelerating largess.
I therefore express my views on the subject because of the state’s announced policy that this court’s criticism of existing law be brought to the attention of the public, and of legislative and higher judicial authority empowered to change it. (See rule 976(b), Cal. Rules of Court.)
No person, regardless of how grievous the circumstances, has a “right” to punitive damages. Such “right” as there may be, will be vindicated by the compensatory damage award designed to cover his entire loss. (Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 800-801 [197 P.2d 713].)
Punitive damages are assessed only “to punish the defendant and not to compensate for any loss suffered by the plaintiff.” (Brewer v. Second Baptist Church, supra, 32 Cal.2d 791, 801; italics added.) They “are inflicted in the nature of a penalty for the evil intent.” (Fidelity etc. Co. v. Federal etc. Co. (1933) 217 Cal. 307, 319 [18 P.2d 950]; italics added.)
Trial courts and juries, within the broad areas presently to be discussed have “free” and “untrammeled” discretion whether, or not, to [759]punish a defendant found by them to have such an “evil intent.” (Brewer v. Second Baptist Church, supra, 32 Cal.2d 791, 800-801.)
In order to determine how great a punishment to inflict upon a defendant he will be judicially compelled to expose to the plaintiff, to the court and jury, and to courtroom spectators, the private details of his financial holdings and affairs. (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 869, pp. 3157-3158.)
In determining whether the defendant possessed an “evil intent,” or should be punished therefor and if so, the severity of the punishment, the court or jury will be guided by a mere preponderance of the evidence, no matter how close to balance it may be.
And, the plaintiff having no right to punitive damages, the award has the nature of a public fine imposed to punish and deter evil intent and acts. It becomes logically indistinguishable from the fine imposed as punishment for a misdemeanor (see Pen. Code, §§ 17, 19), or for a felony where the punitive damages exceed $500 (see Pen. Code, §§ 18, 672).
Were it not for Toole v. Richardson-Merrell Inc. (1967) 251 Cal.App.2d 689, 716-718 [60 Cal.Rptr. 398, 29 A.L.R.3d 988], and companion authority, holding punitive damages as permitted by our state to be constitutionally flawless, I would entertain doubt as to their due process survivability. Placing unrestricted power in a jury to direct punishment for “evil intent” by compelling the “evildoer” to pay money to another without right thereto, seems foreign to any concept of due process known to me. And such implications seem compounded by the permitted procedures, such as the preponderance of evidence test, and compulsory self-incrimination, etc.
Moreover, any judicial procedure compelling one to respond to a plaintiff’s demand for full and detailed disclosure of intimate financial affairs unrelated to the action seems manifestly a contravention of article I, section 1, of the state’s Constitution: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” (Italics added.)
[760]But, granting the constitutionality of the doctrine, I believe it to be contrary to the interest of the people of this state.
In California’s history it had long been the rule that punitive damages were recoverable only where the defendant entertained “the wrongful personal intention to injure” the plaintiff (Roth v. Shell Oil Co. (1960) 185 Cal.App.2d 676, 682 [8 Cal.Rptr. 514]; italics added), and that the essential element of malice must be actual malice [denoting] ill will on the part of the defendant, or his desire to do harm for the mere satisfaction of doing it’” (Gombos v. Ashe (1958) 158 Cal.App.2d 517, 527 [322 P.2d 933], italics added). The penalty was inflicted, as noted, only because of the actual “evil intent.” (Fidelity etc. Co. v. Federal etc. Co., supra, 217 Cal. 307, 319.) Such damages might not be awarded under any “contract” theory (Civ. Code, § 3294; Macmorris Sales Corp. v. Kozak (1968) 263 Cal.App.2d 430, 438 [69 Cal.Rptr. 719]), or under a “negligence” theory, no matter how “gross” or “reckless” the negligent act (Gombos v. Ashe, supra, p. 527). When properly awarded, punitive damages then had a modest relation to actual damages; “the granting of them [was] done with the greatest of caution [and they were] only allowed in the clearest of cases.” (Gombos v. Ashe, supra, p. 526.)
But notwithstanding those restrictive and cautionary dicta, the bases, and frequency, and measure, of punitive damages have expanded far beyond the original legislative and judicial intent and, in my respectful opinion, far beyond reason and sound public policy.
Comparison of damage awards is often idle but here, I think, it will illustrate a point. During a selected period, 1951-1958, I find the following ratios of actual to punitive damages to have been judicially approved in this state: $2,500 to $1,000—Ingram v. Higgins (1951) 103 Cal.App.2d 287 [229 P.2d 385]; $3,525 to $1,000—Sheward v. Magit (1951) 106 Cal.App.2d 163 [234 P.2d 708]; $10,000 to $10,000—Sullivan v. Matt (1955) 130 Cal.App.2d 134 [278 P.2d 499]; $2,250 to $2,000—Guillory v. Godfrey (1955) 134 Cal.App.2d 628 [286 P.2d 474]; $740.54 to $1,500—Austin v. Duggan (1958) 162 Cal.App.2d 580 [328 P.2d 224]. During those years where actual damages of $600 were awarded, a punitive damage award of $2,500 was set aside as unreasonable. (Luke v. Mercantile Acceptance Corp. (1952) 111 Cal.App.2d 431 [244 P.2d 764].) It will be noted that the highest acceptable proportionate punitive damage award was in Austin v. Duggan where it was approximately twice as large as the actual damages found.
[761]It was following those awards that, in December 1959, an actual damage award of $400 and punitive damages of $10,000 were judicially approved.. (Larrick v. Gilloon (1959) 176 Cal.App.2d 408 [1 Cal.Rptr. 360].) Since then the proportionate relationship of punitive to actual damages has continued to escalate, culminating perhaps in the actual damage award of $1,050 and punitive damage award of $200,000 (a ratio of 1 to 190) approved by Wetherbee v. United Ins. Co. of America (1971) 18 Cal.App.3d 266 [95 Cal.Rptr. 678] (hg. by Supreme Ct. den.).
In much the same way, the circumstances under which punitive damages may be awarded have been widely expanded. Although originally such damages were forbidden in actions “arising out of contract” (Civ. Code, § 3294), they are now “appropriate” and “authorized” where a “breach of contract is the basis for tort liability.” (Mayes v. Sturdy Northern Sales, Inc. (1979) 91 Cal.App.3d 69, 82 [154 Cal.Rptr. 43].) “The same act may be both a breach of contract and a tort,” and it will be such a tort where there is “an intentional act causing injury to an interest created by the contract.” (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 3, p. 2305.) Such an act “‘is independent of the contract and attaches over and above the terms of the contract. This being so, the plaintiffs may treat the injury as a tort or as a breach of contract at their election.’” (2 Witkin, Cal. Procedure (2d ed. 1970) Actions, § 90, pp. 960-962.) Thus, punitive damages become available, despite Civil Code section 3294, in an action “arising from contract” if its complaint “contains a count ex delicto.” (Walton v. Anderson (1970) 6 Cal.App.3d 1003, 1009 [86 Cal.Rptr. 345].)
In much the same fashion punitive damages are now awardable generally in negligence actions. Where once, as pointed out, there must have been actual “ill will” against the plaintiff “on the part of the defendant, or his desire to do harm for the mere satisfaction of doing it,” those stern requirements no longer apply. It is sufficient if there shall be found “an intention to perform an act that the actor knows, or should know [italics added], will very probably cause harm.” (Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 869 [118 P.2d 465]; Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286 [157 Cal.Rptr. 32].) Since it is the essence of actionable negligence that the risk of danger to the plaintiff “would have been foreseen [italics added] by a reasonable person” (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 496, p. 2761), it logically follows that punitive dam[762]ages are now permissible in all negligence actions where counsel’s awareness has brought about the joinder of a “count in tort."
These and perhaps other reasons, I think, have brought about the present-day practice of seeking punitive damages in substantially all damage actions, and what will reasonably be termed the explosion of punitive damage awards. And such punitive damage awards are observed not to be generally confined to large corporations such as defendant Sears Roebuck & Company, or so-called “wealthy” defendants. They are regularly returned also, against the “average” defendants of damage actions.
As we have seen, the amount of punitive damages has been entrusted to the discretion of the trial jury or court. And, as noted, that discretion has sometimes fixed the actual ratio of punitive to actual damages at 190 to 1, as in Wetherbee v. United Ins. Co. of America, supra, 18 Cal.App.3d 266, and 63 to 1, as by the jury in the case at bench. Punitive awards against less “wealthy” or “average” defendants will generally be of a narrower proportion, but often they are observed to be many times the actual damages.
Were it the effect of punitive damages to reasonably punish only the “evil” malefactor, or those ‘“who desire to do harm for the mere satisfaction of doing it’” (see Gombos v. Ashe, supra, 158 Cal.App.2d 517, 527), few would complain of the current rules. But in today’s society it is a rare and fortunate person who is not at one time or another exposed to a debatably valid claim of tortious negligence, or contractual breach. In the past, where one was found in such a case to have erred, the actual damages had generally been covered by insurance and even where not, the amount was closely and foreseeably attuned to the claimant’s actual monetary injury.
Insurance protects us against most of the catastrophic hazards of our existence and most important, as Justice Peters has said, it brings “peace of mind and security” into our lives. (See Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 434 [58 Cal.Rptr. 13, 426 P.2d 173].) But insurance can give no “peace of mind and security” against the ever present threat of punitive damages against any of us who, rightly or wrongly, may be found to have tortiously “breached” a contract or “negligently” injured another. Such insurance against punitive damage liability is unobtainable; it is not written by insurance companies, and it [763]is forbidden by law. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 904-905, fn. 3 [157 Cal.Rptr. 693, 598 P.2d 854]; City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 42 [151 Cal.Rptr. 494]; 4 Witkin, Summary of Cal. Law (8th ed. 1980 supp.) Torts, § 858A, p. 375.)
Nor may a judgment for punitive damages be discharged by bankruptcy. (11 U.S.C.A. § 523(a)(6); Tinker v. Colwell (1904) 193 U.S. 473, passim [48 L.Ed. 754, 24 S.Ct. 505].)
Thus in a sense we, even the most prudent among us, are constantly threatened by an immovable and treacherous Sword of Damocles. For a misguided act or perhaps the misguided verdict of a jury any of us, denied the right of indemnification by insurance, is subject to possible visitation of disaster.
Such a threat in my opinion is logically intolerable, and bad public policy. The law’s usual regard for the people’s welfare, as emphasized by Justice Peters’ concern for their “peace of mind and security,” is seemingly abandoned.
The doctrine of punitive damages has never found favor in equity, the repository of the law’s conscience. “‘As a general rule, courts of equity will not award exemplary damages.’” (Rivero v. Thomas (1948) 86 Cal.App.2d 225, 239 [194 P.2d 533].) They “cannot be awarded in a suit in equity.” (Murphy v. American Motors Sales Corp. (N.D.Ga. 1976) 410 F.Supp. 1403, 1405.) “To permit a decree for such damages would be at variance with general principles of equity jurisprudence.” (Given v. United Fuel Gas Co. (1919) 84 W.Va. 301 [99 S.E. 476, 478].)
It will also be observed that the doctrine has been repudiated by many of our sister states. I cite authority of some of them:
Connecticut. “In this state the common-law doctrine of punitive damages. .if it ever did prevail, prevails no longer.” (Hanna v. Sweeney (1906) 78 Conn. 492 [62 A. 785].)
Massachusetts. “Recovery of [punitive] damages [is] not permitted in Massachusetts.” (O’Reilly v. Curtis Publishing Co. (D.Mass. 1940) 31 F.Supp. 364.)
[764]New Hampshire. “Elements of damage do not include impositions in the nature of penalties.” (Bruton v. Leavitt Stores Corp. (1935) 87 N.H. 304, 305 [179 A. 185].)
Colorado. “The jury may not in its verdict punish a defendant for wrongdoing.” (Larson v. Lindahl (1968) 167 Colo. 409 [450 P.2d 77, 78].) “Civil actions are instituted for the purpose of redressing private wrongs; it is the aim of civil jurisprudence to mete out as nearly exact justice as possible between contending litigants. There ought to be no disposition to take from the defendant or give to the plaintiff more than equity and justice require. Yet under this rule of damages these principles are forgotten, and judicial machinery is used for the avowed purpose of giving plaintiff that to which he has no shadow of right. He recovers full compensation for the injury to his person or property; for all direct and proximate losses occasioned by the tort;.. . and then, in addition to the foregoing, he is allowed damages which are awarded as a punishment of defendant and example to others. Who will undertake to give a valid reason why plaintiff, after being fully paid for all the injury inflicted upon his property, body, reputation, and feelings, should still be compensated, above and beyond, for a wrong committed against the public at large? The idea is inconsistent with sound legal principles, and should never have found a lodgment in the law.” (Murphy v. Hobbs (1884) 7 Colo. 541 [5 P. 119, 121-122].)
Louisiana. “It has long been the settled law in Louisiana that only compensatory damages, and not punitive damages, may be recovered in an action for tort.” (Breaux v. Simon (1958) 235 La. 453 [104 So.2d 168]; and see Janssen Catering Co. v. Abadie (1924) 157 La. 357 [102 So. 428, 429]; Trenchard v. Central Laundry Co. (1923) 154 La. 1003 [98 So. 558]; Baggett v. Richardson (5th Cir. 1973) 473 F.2d 863, 865; Bacharach v. F.W. Woolworth Company (E.D.La. 1963) 212 F.Supp. 83, 85.)
Washington. “No citation of authority is required for the principle that Washington does not allow punitive damages.” (Conrad v. Lakewood General Hospital (1966) 67 Wn.2d 934 [410 P.2d 785, 789, 10 A.L.R.3d 1].) “[T]he doctrine of punitive damages is unsound in principle.” (Maki v. Aluminum Building Products (1968) 73 Wn.2d 23 [436 P.2d 186, 187].) The state’s rule is based upon the following long-established rationale: “[Other courts have frankly stated their repugnance to the doctrine, yet considered themselves bound, by former [765]decisions in their respective states, to still maintain it.... In this state it is a new question, and the court approaches its investigation untrammeled by former decisions, free to accept the reasoning which most strongly appeals to its judgment.... And this desired ultimatum, we think, will best be attained by adopting the rule laid down by Mr. Greenleaf (volume 2, § 253) that ‘damages are given as a compensation or satisfaction to the plaintiff for an injury actually sustained by him from the defendant. They should be precisely commensurate with the injury, neither more nor less; and this whether it be to his person or his estate,.. . [The doctrine] permits the jury to give what it terms “punitive,” “vindictive,” or “exemplary” damages; in other words, blends together the interests of society and of the aggrieved individual, and gives damages not only to recompense the sufferer, but to punish the offender.’... It seems to us that there are many valid objections to interjecting into a purely civil action the elements of a criminal trial,... While the defendant is tried for a crime, and damages awarded on the theory that he has been proven guilty of a crime, many of the time-honored rules governing the trial of criminal actions, and of the rights that have been secured to defendants in criminal actions ‘from the time whereof the memory of man runneth not to the contrary,’ are absolutely ignored. Under this procedure the doctrine of presumption of innocence, until proven guilty beyond a reasonable doubt, finds no lodgement in the charge of the court, but is supplanted by the rule in civil actions of a preponderance of testimony. The fallacy and unfairness of the position is made manifest when it is noted that a person can be convicted of a crime, the penalty for which is unlimited, save in the uncertain judgment of the jury, and fined to this unlimited extent for the benefit of an individual who has already been fully compensated in damages, on a smaller weight of testimony than he can be in a criminal action proper, brought for the benefit or protection of the state, where the amount of the fine is fixed and limited by law;... The party is fully compensated for all the injury done his person or his property, and for all losses which he may sustain by reason of the injury, in addition to recompense for physical pain, if any has been inflicted.... The plaintiff is made entirely whole. The bond has been paid in full. Surely the public can have no interest in exacting the pound of flesh. [¶] [W]hile jurors should be the judges of the character and weight of testimony, that judgment should be exercised under some rule, and be amenable to some law, so that an abuse of discretion could be ascertained and corrected; but, under the doctrine of punitive damages,... the whole question is left to the unguided judgment of the jury.... It seems to us that a practice which leads to so much confusion and uncertainty in the administration of the
A petition for a rehearing was denied October 29, 1980, and the petitions of plaintiffs and respondents and appellant for a hearing by the Supreme Court were denied December 10, 1980. Bird, C. J., was of the opinion that the petitions should be granted. Mosk, J., was of the opinion that the petition of plaintiffs and respondents should be granted.