W. H. and Bertha Nixon (Nixons) recovered judgment for actual and punitive damages against the City of Oklahoma City (City) for the negligent operation of its municiрal sewer system. City appealed. The Court of Appeals affirmed. City seeks certiorari solely on the grounds that the award of exemplаry damages is contrary to law.
Nixons contend the award is sustained by
City of Lawton v. Johnstone,
City argues that the
Johnstone
case does not hold that exеmplary damages are recoverable against a municipality, and, if it expresses any position, the language is dicta. City calls our attention to an earlier case,
Board of Commissioners of Rogers County v. Baxter,
City points out that the Court in City of Lawton v. Johnstone, supra, expressly stated that it was following the rule as set down in the Baxter decision. In the alternative City suggests the issue is undecided in Oklahoma and that the better rule, indeed the majority rule, is that exemplary damages may not be recovered against a governmental subdivision.
We find no inconsistencies between the Baxter and Johnstone decisions. The Baxter opinion contains an adequate statеment of the policy supporting the common law reluctance to impose exemplary damages on governmental subdivisions.
“ * * * a judgment fоr punitive damages would fall upon the taxpayers of Rogers county, who were not the willful or active transgressors. The taxpayers cannоt be said to be directly responsible for the injury suffered by the plaintiffs. It cannot be said from the *1285 record that the acts of the officers met with the approval of the citizens of that county. We think that the general sentiment among the citizens of Rogers county would be opposed to placing the burden upon one individual to furnish at his cost a public highway for the use and benefit of the citizenship of that county.”
The Baxter decision does not hоld, as argued by City, that exemplary damages are not recoverable against a governmental subdivision. Baxter simply states that it is improper to impose exemplary damages unless the citizens of the governmental unit are in some real sense participants in the wrongful conduct. As we read the John-stone case, supra, it does not authorize or impose exemplary damages in all cases, rather it is an extention of the Baxter rationale. In Johnstone, the Court said:
“The actiоn for punitive damages is against the municipality, and the burden of any judgment must fall on the citizens of the municipality. The government of the city is administered by thе citizenship, through its representatives. An action for punitive damages will not lie unless the wrongdoer is guilty of fraud, malice, or oppression in committing the acts which constitute the negligence relied upon. At most, the citizens of Lawton are passive wrongdoers according to the evidеnce contained in the record. The officers responsible for the administration of the affairs of the city were the active wrongdoers. We do not mean to say that a municipality would not be liable in any case for punitive damages for the wrongful acts of its officers. The citizеns of a municipality may acquiesce in the negligent acts of its officers and the continued wrongful administration of the affairs of the municipality tо the point of being equally culpable with their agents in the continued wrongful acts.”
The views expressed in
Johnstone
are an exception to the common rule that exemрlary damages are under no circumstances recoverable against a governmental subdivision.
The law allows the recovery of money over and above the actual loss of the offended party because as a matter of policy the punishment of the transgressor may serve as an example to the rest of society that conduct of a similar kind will not be allowed. The complaining party is allowed to recover exemplary damages not because his position is meritorious, but beсause society is benefited by deterring sim-iliar conduct.
Oller v. Hicks,
Okl.,
A majority of jurisdictions do not permit the recovery of exemplary damages from governmental subdivisions including municipalities.
Were exemplary damages to be awarded against a governmental subdivision, the persons punished would, be the taxpaying public. The very persons we seek to “benefit” by example are the ones who bear the financial responsibility for compensating the injured individual for his actual loss, and, were we to permit it, the *1286 responsibility for the satisfaction of the exemplary damages award. The function of exemplary damages is not served by rеquiring taxpayers to pay damages in excess of the actual loss. An additional award of exemplary damages would serve no useful purpose of the law. To the extent that the previous opinions of this Court in the Baxter and Johnstone cases are in conflict with the views expressed in this opinion, they are overruled.
City, in its Petition for Writ of Certio-rari attacks no aspect of this case relating to the judgment against it for actual damages or the affirmance thereof by the Court of Appeals. The Court expresses no views with respect to issues resolved by the opinion of the Court of Appeals, such as the application of the doctrine of collateral estoppel, and which are not raised in this Court.
Writ of Cеrtiorari granted; Opinion of the Court of Appeals vacated as it relates to the award of exemplary damages; Judgment of the trial court for exemplary damages reversed.