*1 keeping in placed has matter, Legislature of this the remand Upon Bank Review.” fur- the Court of may.wish to Review Bank Court of Banking to the matter ther remand the the view ex- and, adopted also wherein we sufficient agency to make Board for Supreme Court pressed by the U. S. ones that the assuming findings of B. Corp. R. v. N. L. Camera fact' — Universal suffi- are not already made it has L.Ed. 71 S.Ct. (1951), U.S. review. judicial cient to afford 456: has Bank Review event, when the Court * * * intervene This will Court of fact and findings determined rare in- only ought be the what Banking Board of law conclusions (of standard substantial stance when the proper re- sufficiently so that stated are misap- appears been evidence) to have required view be made misapplied.” prehended grossly Board, supra, Banking Brown guided In the future we shall be authorized will then viewing court determining wheth principles in the above contemplated give review the full review a decision grant er to certiorari to Board, supra. Banking Brown v. Review of Bank where Court order of the notice that We solely grounded decision is “a it concludes of Bank Review sup Banking Board was the order granted.” We been Charter should have The term ported by evidence. substantial this mat assume that final review is defined in Yellow “substantial evidence” single determines ter if the court (1947), Transit Co. v. State ad by the Board question decided issue or 178P.2d 83. supported versely applicants was to the Review Judgment of of Bank the Court court in substantial evidence is remanded reversed and the cause of a ordering stead of the issuance itself proceedings. further to the the matter charter will remand concur. All agency to ascer Justices Banking Board for that all of tain to its satisfaction whether ap
statutory to the prerequisite conditions
proval application of an a bank char
ter, O.S.1971, F, provided
have been met. guidance
For further
parties, general and for the and bar bench ly, opportunity we take this to note that Petitioner, T. N. BURTON, the question Banking of whether Board’s supported by order was substantial E. A. Respondent. JUZWIK, presented evidence again record be No. 45753. guided by pro court we will be our Supreme Court of Oklahoma. Banking nouncement in Vose v. Board June 1974. Okl., wherein stat we ed : Oklahoma, “In the Legislature has
** * charged the Bank Court of
Review and not this Court with the nor- primary
'mal and responsibility of re-
viewing Banking Board orders. Wheth-
er on the record aas there sub- whole
stantial support evidence to findings
of the Banking Board is question *2 Allen, Loeffler, Jr., H. Loeffler &
David Bristow, petitioner. for McMillan, Harry & M. Blackstock Bristow, McMillan, respondent. for : IRWIN, Justice pro- commenced [plaintiff], Petitioner against respondent [defendant], ceedings damages punitive recover actual defendant legedly because sustained agreement. Plain- breached an oral trust alleged oral on an tiff’s action was based trustee, defendant, whereby ac- quired gas oil lease and title to an trust, conveyed oil and party. third gas lease to an innocent defendant’s mo- The trial court sustained allegations relating plaintiff’s tion to strike damages plaintiff’s and struck jury from the docket. is Certified In- Presented review terlocutory places in which issue Order puni- plaintiff’s a claim for right to assert to a trial. tive resolving the issue plain- damages we must determine purview tiff’s action comes within O.S.1971, 9, provides: the breach of an “In action for obligation guilty has been defendant where the malice, actually or oppression, fraud or jury, in addition to ac- presumed, the give tual punish- example, by way of sake ing the defendant.” summarized, plaintiff Briefly gas oil and lease of an The owners that: agreed lease to orally sell $2,000.00 paid agent agent plaintiff for an undivided lease, Thereafter, the owners of lease. orally defendant agent, the bal- pay agreed defendant would lease; price purchase ance of the might transferred to defend- lease. Whatever have been the lease would plaintiff ant; hold the lease between and defend- and defendant ant rightful after the transferred to de- the other lease was trust for fendant, transferred to de- the transfer made owners. The lease prior an oral agreement the lea'se own- transferred fendant but defendant ers, plaintiff’s *3 and defendant. It agent, party. to a third alleged for the breach oral of for actual dam- plaintiff’s allegation ment plaintiff that seeks because that in breach of the ages, plaintiff alleged the trust to the al- was created convey agreement and trust oral leged rights oral the and and interest, plaintiff his undivided ½2nd obligations parties must be measured assigned fendant entire lease to a third by agreement. oral took the same with- assignee and the out that the value notice. Plaintiff gravamen Plaintiff contends of $2,000.00, of his interest the lease was in his tort regardless action sounds in $2,000.00 damaged and that he had been relationship nature of original wrongful acts of in for defendant parties and in such instances convey breaching his oral damages may be awarded. plaintiff his interest in the undivided ½2nd Plaintiff cites Fort & Smith R.W. lease in which defendant held trust for Ford, 575, 126 wherein him. we held: allegations Plaintiffs petition “A stating a contract of car- damages, by the trial were stricken riage injury consequent and an charging court, assignment by were: defendant upon duty owing plain- violation of of undivided Vs2nd tiff, in an against a action common car- party, lease to third which defendant rier, states a action sounding in plaintiff, held trust for was done contract, tort rather than although it al- fraudulently, willfully maliciously and leges express contract as an induce- plaintiff his intent to defraud inter- ment; gist action being de- est, and in addition to actual public duty.” fendant’s breach aof punitive damages
he was entitled in the $6,000.00. sum of case, In the plaintiff purchased Ford had relationship Plaintiff contends that the railway Spiro Skullyville ticket from between defendant and himself that of and stop Skullyville train did trustee/beneficiary upon suit breach beyond was carried his desti- fiduciary of a duty is not an action based nation. An examination of the case dis- upon supra, authorizes an closes that were allowed award for on theory action was Okl., Powell based v. Chastain of car- riage gravamen gist we said but the example plain- classic of a tiff’s resulting action duty trust is a situation wherein a was for breach of a ow- ing public imposed by transfer of to the property real law. made to one person and the consideration therefor Smith, In Hobbs v. 115 P. paid by person; another and under such 347, plaintiffs purchased hogs some presumed circumstances a to result defendant hogs and the had cholera. The by person favor or for whom hog plain- cholera was communicated to payment such is made. tiffs’ hogs plain- other a number
According plaintiff’s petition, the oil tiffs’ hogs sought damages died. Plaintiffs gas lease was transferred to defend- expenses the nature of incurred them ant, plaintiff paid $2,000.00, through for hogs, for caring the diseased renovat- agent, for an ing undivided interest in premises stop their cholera from tort, wrong bring action ex hogs. of their spreading and the death delicto.” we held: Therein analysis An of the decisions which in ef- par- between the the relation “Where “injured party hold fect has been established ties to wrong the contract or treat the implied, if express or bring as a tort and an action ex delicto” ex- imposes duties because certain discloses the created, vio- istence not for breach of but tor- may be obligations lation of the contract per- conduct of the tious defendant maintained, an action in tort waived and non-performance formance or aof imposed violation law, imposed by of the relation- reason dut[y].” ship parties, although the relation- it is manifest that said that The court ship have been created contract. *4 duty, if plaintiffs the- the defendant owed Shaffer, Refining In Sinclair Co. v. with chol- hogs he were infected knew the 610, 571, quoted ap- we with plaintiffs they so era, to them not sell to proval from the of Trustees of Hor- case plaintiffs’ in contact with would come Sherwin, 259, ton’s Estate 63 Okl. them cholera. and thus infect with hogs, following: only Defendant not breached e., healthy hogs, but failing i. to deliver plaintiff’s right “As to to ex- recover duty in de- breached common emplary damages, only for the hogs. livering plaintiffs diseased to obligation arising breach of an from damages were allowed because de- Punitive exists, right where such contract duty in his common law fendant breached here, obligation where a breach of an hogs delivering knowingly the diseased arising from is counted on. contract * * plaintiffs’ part actual exemplary *. an action hogs damages resulted from diseased in the ab- cannot be recovered * * hogs plaintiffs’ healthy contaminating sence of statute. premises. at bar the be- In the case issue in The Oklahoma Natural Gas created plaintiff and defendant was tween Pack, did not agreement. by alleged oral virtue right pu- a claim involve assert alleged allegedly breached Defendant damages but the measure actual nitive by conveying the entire oil agreement oral approv- quoted convey- damages. Therein we with gas to third instead a interest. plaintiff his ing to undivided al wherein it is stated: I R.C.L. gravamen of actions * * * duty obligation, vi- oral alleged based breach of rise gives to a cause olation which convey plaintiff his undi- agreement action, by byor created contract may be lease, and the vided interest in Ys2nd independent of contract. positive law rights obligations plaintiff and of both is a broad distinction There be this defendant must measured arising ex contractu and of action causes statutory agreement. au- oral There no delicto, matter ex and mere damage in allowing punitive thorization into a tort. But cannot be converted the case bar. law, duty imposed there be If, by petitioner, he is enti- as contended parties, reason relation punitive to assert a claim for relation created con- tled though the effect, so, O.S.1971, has no force or tract, neglect to this is when injured of action for* per- a cause gives this contract, plaintiff action, arising out breach of and he son breach “was done merely alleges upon the or treat fraudulently, willfully, allegation described, Following and mali- last ciously sought punitive damages Plaintiff with the intent defraud [*] n [*] ft sum of $6,000.00. my opin- it is Simplifying pleadings,
We hold that obligation ion that action is for breach of an aris- Plaintiff the existence of ing court cor- from contract and the trial aforementioned a trust rectly pursue motion to then sustained defendant’s elected plaintiff’s pleadings allega- covery delicto, strike including from dam- ages. tions adjudicated response be suf- pleadings
The issues to are not mentioned aforesaid, ficiently Appellee filed, as the case now stands (Defendant) framed among pleadings, the correctness of Court to determine other It is demurrer. striking the trial in dealing court’s order case fundamental demurrer Therefore, every docket. the correct- must allegation treat plaintiff, ness the trial court’s in this re- logical order conclusions gard adjudicated. therefrom, light will not in a most favor- party. This, able my opinion, to such Certiorari to review Certified Interlocu- very includes the of the trust tory granted part; the trial Order majority seems to striking plaintiff’s allegations court’s order feel must be established before recov- *5 affirmed; to ery of kind could be made. I do not trial striking court’s order the case from quarrel majority with the correctly when jury not adjudicated. docket states that the existence a contract of (trust
DAVISON, agreement) ordinarily equitable is J., BERRY, C. and matter. I find LAVENDER, do fault JJ., majority, with HODGES concur. however, when it completely overlooks the WILLIAMS, J., V. C. and SIMMS and effect of the Defendant’s (Appellee’s) de- DOOLIN, JJ., dissent. murrer. necessary No citation is when I majority petition remind the that “a BARNES, J., participating. not liberally must be construed 1 DOOLIN, (dissenting). murrer.” Justice principal vice of majority opin- contends, Burton (Appellant) among ion Appellant is that the (Plaintiff) did al- other things, that of lege four, paragraphs five and six of his cause against of (Appellee) action Juzwik petition that Appellee action of is not the agreement, oral contract or trust (Defendant) particu- was tortious. More Appellee’s willful, malicious, but is and in- larly, six, in paragraph Appellant made contract, tentional of breach in na- tortious the following allegations: ture, entitling Appellant to both jury Appellee trial. con- assignment “That the said E. A'. tends, hand, on the other (Defendant) of the undivided Juzwik men Appellant’s equi- is of action %2nd said which he leases table to establish a resulting or construc-
held in
plaintiff Helmco,
trust for this
to
tive
trust
from an oral
Ltd., Inc.,
aforesaid,
as
done
subject
23
giving
to
9 or
O.S.A.1971 §
fraudulently, willfully,
maliciously
to a
trial.
with
the intent
defraud
his said interest in'said leases which the
early
case of Oklahoma Natural
said E.
Pack,
A.
held in
330,
trust
him.” Gas Co. v.
1. 11A Oklahoma
21 of his interest wrongful transfer . . conten- that this Court held tort was that leases—however aforesaid are limited tion occasioned, regardless of the contrac- In its is incorrect.” for breach vi- obligation which nature of the case, tual held: syllabus this Court first olated. is a com- every contract “Accompanying thing perform the mon law Appellant’s cause Appellee suggests that care, skill, rea- agreed to be done 23 solely in contract under of action arises faithfulness, and expediency, and sonable en- Appellant 9 and that O.S.1971 § any of to observe negligent failure argues He titled as a as well is a tort these conditions primary question concerned injured trust establish the existence or elect rightfully argues ment and the existence bring wrong as a tort treat the equitable in nature and delicto.” in his latter non-jury matter. The fault consistently followed has argument completely
This Court
is that he
overlooks
demurrer,
and intentional
negligent
rule as to both
and I assert
the effect of his
obligations.
perform contractual
hearing
failure
time
when
Co.,
Torpedo
117
v. Central
legal
See
that all
con-
demurrer had been filed
Jackson
426,
338;
245,
Okla
246
46 A.L.R.
plead Appellant’s
Okl.
clusions
inferences
Graham,
Okl.
v.
188
favorably
homa Natural Gas
Petition must be construed most
Barton,
173;
521,
Morriss v.
Appellant, including
111 P.2d
451, and
Oil
Hall
logically
190 P.2d
performed
Okl.
contract.
It
follows
Jones
(Okl. 1969).
Corp.
Claro,
v.
Natural Gas Co.
under Oklahoma
Pack, supra, Appellant is entitled
plead-
Either
an examination
plead
in favor
his action
ex delicto.
Cobb,
Vogel v.
ings
suggested by
Smith,
case
Okl.
Hobbs
148 A.L.R.
in-
(Appellant) be entitled to would have been best and
Such action would
proper preserved have and would both rights,
Plaintiff’s and the Defendant’s the end of Plaintiff’s Defendant at certainly evidence be entitled Rory YOUNG, age under an infant mur as showed proof to whether or not the twenty-one years, who sues his father him entitled relief ex or contractu friend, al., Appellees, and next et delicto, all. say by opinion I dissenting do CITY, municipal OKLAHOMA cor- that Appellant absolutely to an entitled poration, Appellants. instruction at the as to No. 47051. trial, time of unless his at such evidence Supreme Court Oklahoma. time entitled him thereto. April 9, 1974. I majority opinion wrong think the Rehearing As Corrected on Denial of an additional reason. To me it overlooks July 1, 1974. say those cases which nature *7 grievance rather than the form of pleadings be the deciding should factor or not the sounds ex delicto Barton,
or ex contractu. See Morriss v.
supra, syllabus 6 :
“Whether an action in tort sounds
arises ex contractu must be determined the nature of
rather than the form pleading.”
and, page 457 of P.2d:
“If the complained transaction had its
origin in a placed contract which
parties in that, relation in at-
tempting the promised serv-
ice, the committed, tort was then the
breach of the contract is not the
men of the suit. The in such