ON CIVIL PETITION TO TRANSFER
Plaintiffs-appellees George and Patsy Robertson (Robertsons) were awarded $3,500.00 in compensatory damages and $75,000.00 in punitive damages in the jury trial of their claims arising from their purchase of a Chevrolet truck from defendant-appellant Bud Wolf Chevrolet, Inc. (Bud Wolf). Upon appeal to the Court of Appeals, the compensatory damage award was affirmed and punitive damages, initial
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ly reversed, were reinstated upon rehearing. Bud Wolf Chevrolet, Inc. v. Robertson (1986), Ind.App.,
Among contentions presented by Bud Wolf in seeking transfer is the argument that the rehearing opinion of the Court of Appeals conflicts with Martin Chevrolet Sales, Inc. v. Dover (1986), Ind.App.,
Bud Wolf contends that the award of punitive damages is excessive and contrary to law. The evidence most favorable to the judgment discloses that on January 31, 1978, Robertsons purchased a 1978 Chevrolet truck from Bud Wolf for $10,548.75. Robertsons were told that the truck was a "new" truck with 850 miles on it because a salesman had driven it back and forth to work during the month. The Robertsons were not told that prior to the sale, the truck had been struck by another vehicle engaged in clearing the snow from the Bud Wolf lot, resulting in repairs including a replacement hood and windshield and application of great quantities of plastic filler under the truck's right side. The frame cross rail was bent and a quantity of "shims" was found to have been installed under the cab mount to realign the truck, which Robertsons alleged was a result of the pre-sale collision repair.
The Court of Appeals initially reversed the award of punitive damages because it found the evidence was insufficient to "permit a conclusion of malice," and that the "determinative issue was whether quasi-criminal malice has been proved."
The sole issue presented in Traina, an action arising in tort, was whether the evidence was sufficient to sustain punitive - damages. Expressly conceding that punitive damages may be awarded upon a showing of willful and wanton misconduct, even absent malice, ill will or intent to injure, this Court declared that to affirm an award of punitive damages, the reviewing court must find that under the cireumstane-es known, the defendant "subjected other persons to probable injury, with an awareness of such impending danger and with heedless indifference of the consequences." Traina,
Cases recognizing that punitive damages may be awarded in contract actions are in substantial accord as to the obduracy required for such an award. In Vernon Fire & Casualty Ins. Co v. Sharp (1976),
Therefore, in both tort and contract actions, while proof of malice may be relevant to show the obduracy necessary for punitive damages, the element of malice is a mere alternative, not an essential prerequisite, to obtain punitive damages.
While both Traina and Travelers emphasize the need for "clear and convincing" proof tending to approach the certainty required in criminal convictions, the standard of appellate review for sufficiency on the issue of punitive damages should impose neither greater judicial serutiny nor lesser deference to jury determinations than in review of other sufficiency questions. In addressing the issue of sufficiency of evidence, we will affirm a judgment of punitive damages if, considering only the probative evidence and the reasonable inferences supporting it, without weighing evidence or assessing witness credibility, a reasonable trier of fact could find such damages proven by clear and convincing evidence. Cf. Case v. State (1984), Ind.,
In the present case, the jury could have found by clear and convincing evidence both (1) that Bud Wolf's conduct, even if not proven to be malicious, nevertheless constituted fraud, gross negligence or oppressiveness, and (2) that Bud Wolf's conduct was inconsistent with any contention of mistake of law or fact, honest error of judgment, overzealousness, mere negligence, or other such noniniquitous human failing. In selling the vehicle to Robert-sons, Bud Wolf misrepresented it as "new," concealing the prior collision and extensive repair work, and charged the price of a new vehicle, without negotiating a lower price based upon the damage. When the Robertsons discovered that the vehicle had been damaged before purchase, and brought it to Bud Wolf's attention, the dealer refused to make adjustment on grounds that the warranty had expired. Actions of employees and agents of a corporation, when done in the scope of their employment, are attributable to the corporation. Hibschman Pontiac,
In its opinion on rehearing, the Court of Appeals opined that the jury instruction, while "not so incorrect as to mandate reversal[,] ... simply did not go far enough."
The following punitive damage instructions were given to the jury:
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 *138 deter it and others from like conduct in the future.
Clear and convincing evidence 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.
Notwithstanding observations contained in Traina dicta,
With respect to Bud Wolf's argument that punitive damages were excessive, we agree with the Court of Appeals' analysis and resulting conclusion that, given the nature of Bud Wolf's conduct in this case and the evidence regarding Bud Wolf's assets, the punitive damages awarded by the jury were not excessive.
Except as expressly adopted and incorporated by reference above, the original and rehearing opinions of the Court of Appeals are vacated, and the trial court judgment is affirmed.