This appeal seeks reversal of a jury award of punitive damages for Delmar Broeker (Broeker) and against Miller Pipeline Corporation (Miller Pipeline). 1 On April 12, 1979, Broeker was injured when his vehicle was rear-ended by a truck driven by James Bartrum (Bartrum), an employee of Miller Pipeline. Broeker filed suit against Bartrum and Miller Pipeline for damages. An amended complaint added a request for punitive damages. 2 The jury awarded Broeker $50,000 in compensatory damages and $75,000 in punitive damages. Miller Pipeline does not challenge the award for compensatory damages. It presents only the following issue for review: .
Was there sufficient evidence to support the trial court's submission of the punitive damage issue to the jury and to support the jury's verdict awarding such damages? 3
Upon examining the evidence and the arguments presented by counsel, we restate the issue as follows:
When does heedless or reckless disregard of the consequences or rights of others imply malice or the state of mind necessary to justify an award of punitive damages?
Examining the evidence in a light most favorable to the judgment, we find that on April 12, 1979, at approximately 7:00 A.M., Broecker, driving a 1976 Dodge van, was stopped for a traffic signal at an intersection in Marion County, Indiana. He sustained back injuries when a truck owned by Miller Pipeline and driven by Bartrum, an employee of Miller Pipeline, struck the rear of the van when the brakes on the truck failed. The truck was pulling a 2,000 pound air compressor at the time.
Larry Bilbrey (Bilbrey), another employee of Miller Pipeline, was a passenger in the truck at the time of the collision. Both Bartrum and Bilbrey had been intermittently driving the particular company truck involved in the accident for ten days. During that entire time, the red brake warning light was lighted. Apparently, the warning light had also been on at previous times. In addition, Bartrum and Bilbrey had experienced difficulty with the brakes. There was usually no problem in the morning hours, but by mid-afternoon, the brakes had to be pumped several times before the truck could be stopped. On several occasions, the brakes had gone completely to the floor.
Realizing that this was dangerous, Bart rum reported the problem to his foreman, Paul Groves (Groves). Groves told Bart-rum that it should be "taken care of," but he did not give Bartrum any specific instructions, nor did he ever check thereafter to verify that the problem had been corrected. On the day preceding the collision, or possibly the morning of the accident, Bil-brey and Bartrum took the truck to the Miller Pipeline maintenance department, where they reported the brake problem to a mechanic.
One of Miller Pipeline’s mechanics inspected the brake fluid level in the master *179 cylinder and checked the pedal for pressure. This took approximately ten minutes. The mechanic determined that the fluid level was sufficient and the truck had brakes at that moment. No repairs were done. Despite the fact that the brake warning light was still on and other company trucks may have been available for use, Bartrum went back out on the road with instructions from the mechanic to "be careful." William Wright, a witness for Broeker, testified that the brake defects responsible for the collision were not sudden occurrences and could have been discovered pri- or to the accident if the mechanic had done a more thorough inspection.
At the time of the collision, Miller Pipeline did not keep written maintenance records. 4 If employees discovered a problem with a vehicle, they were to bring it into the maintenance department for repair. Neither the problem nor the repairs done were recorded.
Miller Pipeline's maintenance depart ment, which consisted of seven or eight mechanics, was responsible for maintenance of all vehicles and equipment. The department conducted yearly vehicle inspections as required by law, but there was no other regular procedure for prevents tive safety inspections. Most trucks, however, were examined during the winter months when business was slow. No logs were kept to indicate what work had been done or which vehicle had been inspected. Nor were there any procedures to ensure that all vehicles were inspected or to establish what an inspection would entail.
Miller Pipeline argues that an award of punitive damages is justified only if there was some evidence that its wrongful conduct was intentional and malicious. Broeker, on the other hand, maintains that a showing of malice, ill will, or intentional wrongdoing is not necessary; rather, punitive damages may be imposed if Miller Pipeline acted willfully in an abusive, wanton or oppressive manner in heedless disregard of the consequences.
Broecker relies on the fact that in many Indiana decisions, the courts have described the conduct necessary to support punitive damages as that which is malicious, oppressive, or in heedless disregard of the consequences. See Sexton v. Meridian Mutual Ins. Co. (1st Dist.1975)
He stresses the fact that the term "heedless disregard of the consequences" is used in the disjunctive. Moreover, he points out that some cases have used the term without reference to other descriptive words. 5
As Miller Pipeline points out, our courts have previously addressed this precise issue. In Hibschman Pontiac, Inc. v. Batchelor (3rd Dist.1976) Ind.App.,
*180 "[A]t the core of these descriptions is a consideration of the quality of the actor's conduct that characterizes it as reprehensible. It embodies a consciousness of intended or probable effect calculated to unlawfully injure the personal safety or property rights of others. In some instances it may consist of the conscious desire to maximize rather than mitigate the amount of injury suffered.
If one were to select a single word or term to describe this essence, it would be "malice." To warrant punitive damages the tort complained of must be committed maliciously. The malice may be actual or constructive. Actual malice may be express or implied." Id. at 385 (footnotes omitted) (Emphasis supplied.) 6
Elaboration on the point was made in Prudential Ins. Co. v. Executive Estates (2d Dist.1977)
Broecker contends, however, that these decisions are not controlling. First, he argues that Indiana courts have not addressed the issue in the context of the fact situation presented. Therefore, it would be more appropriate to look at Indiana decisions which discuss punitive damages in motor vehicle collisions and at decisions in other jurisdictions in which punitive damages were imposed in analogous cireumstances.
7
Broecker additionally maintains that cases such as Hibschman Pontiac, Inc. v. Batchelor, supra,
I.
A. PUNITIVE DAMAGES IN INDI ANA VEHICLE COLLISION DECL-SIONS
Although the Indiana cases Broeker cites do discuss an award of punitive damages in motor vehicle collisions, those cases must be distinguished. The issue presented in those decisions was not whether a heedless disregard of consequences would support a punitive damage award. In Smith v. Mills (1st Dist.1979)
In Glissman v. Rutt (3rd Dist.1978)
Finally, in Norfolk & Western Railway Co. v. Hartford Accident & Indemnity Co. (N.D.Ind.1976)
B. PUNITIVE DAMAGES IN VEHICLE COLLISIONS IN OTHER JURISDICTIONS -
We next consider the cited decisions from other jurisdictions which have either discussed an award of punitive damages in similar factual situations or have defined similar conduct as a heedless disregard of the consequences. Both Broeker and Miller Pipeline cite these decisions to support their respective contentions.
In Goff v. Lubbock Bldg. Products (Tex.Ct.App.1953)
*182 Although this was a cursory inspection in view of the fact that the red brake light remained on, the record reveals that the mechanic told Bartrum and Bilbrey he believed the light indicated a problem with the emergency brake. The fact that the mechanic told Bartrum and Bilbrey to "be careful" does not indicate that this conduct was more than poor judgment. The mechanic did hot testify; therefore the intended meaning of his words to "be careful" is mere speculation.
In Nichols v. Baker (1966)
The red brake warning light did indicate a continuing problem, but both Bilbrey and Bartrum testified that they were confused about what the light meant. Both appeared to believe it could indicate a problem with the emergency brake. Bilbrey did admit that, after the inspection, he felt the truck was being sent back on the road with bad brakes, but he also testified that he did not have any reason to doubt the mechanics judgment. Furthermore, Bartrum, who was driving the truck stated that on the day of the accident he did not feel the truck was dangerous because he believed pumping the brakes would stop the truck.
In Womack v. Preach (1945)
In Kindellan v. Arwood Material Co. (D.Tenn.1972)
In West Cash & Carry Bldg. Materials of McComb, Inc. v. Palumbo (Miss.1979)
C. PUNITIVE DAMAGES IN PRODUCTS LIABILITY DECISIONS IN OTHER JURISDICTIONS
Broecker cites products liability decisions in other jurisdictions which allowed recovery of punitive damages against manufacturers of motor vehicles when a collision resulted from defective components. Broecker would have us compare the manufacturer's design defects to the brake defects present in Miller Pipeline's truck. There is, however, a distinct difference between a products liability case involving a design defect which effects hundreds or thousands of people throughout the United States and a negligence action involving a defect in one particular vehicle.
The purpose of punitive damages is to punish the wrongdoer and in the public interest deter others from similar misconduct. Travelers Indem. Co. v. Armstrong (1982) Ind.,
Broecker presented Paul Hughes, an expert witness on preventative maintenance programs. Mr. Hughes had worked primarily with trucking companies engaged in extensive interstate travel with fleets of up to 1600 vehicles. 10 He described preventative maintenance programs, which utilize written repair records, guarantee inspections at regular intervals, thus ensuring that the vehicles are safe to operate. The programs are also designed to preserve the maximum trade-in value of each vehicle. 11
There is no evidence that Miller Pipeline's system of reporting mechanical problems as they occurred was inadequate for a company which is not in the business of transportation and whose trucks travel short distances. 12 Although Mr. Hughes testified that he did not know of any particular trucking company that did not use some form of a written fleet maintenance record, his testimony on preventative maintenance programs was specifically not offered to establish a standard of practice in the business.
*184 Similarly, although a different inspection system might have disclosed the brake defect, Miller Pipeline did conduct a yearly inspection pursuant to state law, which included a brake inspection. This yearly inspection had been performed on the truck involved in the collision. In addition, most of its vehicles were examined during the slower winter months. Even if Miller Pipeline had had different maintenance and inspection systems, its mechanic may have demonstrated the same negligent judgment; in which case, the accident would still have occurred.
Broecker stresses that in the product liability cases, the courts described the conduct supporting punitive damages as a heedless disregard of the safety of others or rights of others. Nonetheless, the defendant's actions were of a more direct and deliberate nature. In Rinker v. Ford Motor Co. (1978) Mo.App.,
Apparently Broecker also is suggesting that because the courts in Wangen and Rinker did not require malice and permitted punitive damages for misconduct characterized as a complete or reckless indifference to, or conscious disregard for, the rights and safety of others, this court should apply the same standard. Indeed, in negligence cases involving vehicle collisions, some courts in other jurisdictions have held that malice is not necessary and punitive damages may be imposed if conduct is in "heedless or reckless disregard of the consequences." Rutland v. Dean (1939)
Smith v. King (1951) Ky.,
We note that just as Indiana decisions have used various terms to describe wrongdoing which will support punitive damages, courts in other jurisdictions have done the same. Regardless of the language used, most courts have allowed punitive damages to be imposed only where the conduct is more outrageous than mere heedless disregard of the consequences. See 62 A.LR.2d 813, 816. See also, Smith v. Gray Concrete Pipe Co., Inc. (1972)
IL
Broecker contends that contract cases like Hibschman Pontiac, Inc. v. Batchelor, supra,
We do not agree that conduct which might be described as in "heedless disregard of the consequences," is necessarily so reprehensible as to justify punitive damages. As previously discussed, this court has specifically stated that something more than a state of mind characterized as a heedless disregard of the consequences is required to impose punitive damages. Harper v. Goodin, supra,
Although those cases were contract actions, there is no basis to disregard their logical application to tort cases. First, punitive damages are allowed in contract cases only where there are elements of an independent fort or a tortious breach. Second, the purposes of punitive damages, to punish and deter, are the same whether the cause of action is in negligence, defamation, or contract.
To sanction punitive damages solely upon the basis of conduct characterized as "heedless disregard of the consequences" would be to allow virtually limitless imposition of punitive damages. There is no right to punitive damages, and as a general rule, punitive damages are disfavored because they are a "windfall" to the plaintiff and allow punishment without the safeguards of criminal procedure. See Travelers Indem. Co. v. Armstrong, supra,
In Travelers Indem. Co. v. Armstrong (1982) Ind.,
"'The issues produced by the punitive damages concept are inherently issues of degree, i.e. was the conduct slightly negligent, negligent, very negligent, grossly negligent, wanton or heedless? Was the conduct malicious or merely inconsiderate or impolite?" Id. at 860.
Rather than specify which degree of misconduct would support an imposition of punitive damages or attempt to redefine the term heedless disregard of consequences, the court adopted a more strict burden of proof: clear and convincing evidence. In discussing the adoption of that standard, the court noted that there is no right to punitive damages and stressed that such damages should not be allowed where the evidence is merely consistent with a hypothesis of malice, fraud, gross negligence, or oppression. Id. at 362.
It is not necessary, however, to remand this cause for trial on the issue of punitive damages, using the clear and convincing standard, because we find as a matter of law, that the evidence here does not meet even the lesser preponderance of the evidence standard.
Miller Pipeline's conduct cannot be condoned, and taken as a whole, may demonstrate more than failure to exercise reasonable care, 13 but it does not imply malice or an equivalent state of mind. Even if, as *186 Broeker urges, Miller Pipeline's conduct could be characterized as a heedless disregard of the consequences, the law of Indiana requires more. Accordingly, we vacate the jury's award of punitive damages, and order the trial court to modify its judgment ° consistent herewith.
Notes
. Broeker's wife Barbara filed a separate complaint for damages, alleging loss of services. The trial court dismissed this cause on the ground it had been merged with Broeker's amended complaint. The jury awarded $25,000 to Barbara Broeker. That verdict is not being challenged.
. Upon motion by Broeker, Bartrum was dismissed from the suit. A third defendant, Don W. Miller, Inc., who allegedly rented the truck to Miller Pipeline, was also dismissed.
. At trial and in his appellant's brief, Broeker challenged the giving of any instruction which would authorize an award of punitive damages but during a post-briefing conference pursuant to Appellate Rule 2(C) agreed that the asserted error in giving such an instruction was subsumed in his argument that the evidence was insufficient to justify punitive damages.
. Miller Pipeline initiated a written, preventative maintenance program after the collision, but does not concede that lack of a prior written program constituted negligence.
. This court has previously recognized that Jones v. Hernandez (1970)
. It is more accurate to say that the requisite malice must be "actual" but that it may be either express or implied. In this sense, constructive malice is implied rather than express.
. Miller Pipeline also cites numerous Indiana and foreign court holdings, but for the opposite proposition, that punitive damages should not be allowed. We agree with Broeker that many of those decisions involving brake failure in vehicle collisions, to which Miller Pipeline gives lengthy discussion, are not particularly helpful because the issue of punitive damages was never raised and any determination of how the courts would have dealt with that issue is pure speculation.
. Broeker points out that Bilbrey did not actually see the mechanic hit the pedal, so it may have had to be pumped several times before obtain *182 ing "pedal." There is no evidence, however, to support that conclusion.
. Miller Pipeline did not give its mechanics any instruction or training on company repair policies or procedures, but they were instructed to make all necessary repairs. Broceker also suggests that Miller Pipeline's maintenance department had a general attitude of not wanting to do repair work when it was brought to them. Bartrum testified that the department was "am-bunctious", but he could not define that term and stated that, nonetheless, they would do the repair work.
. Miller Pipeline indicates that its fleet was much smaller, but the record is silent as to the actual number of vehicles Miller Pipeline possessed. The evidence establishes only that there were over 100 vehicles. Mr. Hughes had worked for one gas company which did work similar to that which Miller Pipeline does.
. Mr. Hughes worked for common carriers which unlike Miller Pipeline were subject to federal regulations. There is conflicting evidence as to whether the preventative maintenance programs in these companies were established in part to comply with these regulations.
. The average truck at Miller Pipeline accumulates only 3,000 miles per year. The particular truck involved in this incident was eight years old and had travelled 15,548 miles.
. Mere negligence or inadvertence will not support punitive damages. Hibschman Pontiac, Inc. v. Batchelor, supra,