Columbus Finance, Inc. v. Howard

O’Neill, C. J. Columbas Finance has not contested those portions of the trial court’s judgment denying recovery on the two cognovit notes and awarding the Howards compensatory damages for loss of use of their automobile. These matters are, therefore, not at issue in this appeal; that Columbus Finance wrongfully executed on the Howards’ automobile is established.* What is at issue is the availability, in an action for wrongful execution, of two — 183 — categories of money damages: punitive damages and compensatory damages for mental suffering and humiliation. Since wrongful execution is a tort action, the resolution of these issues is dependent upon principles generally applicable to tort actions. I. The Howards contend that the Court of Appeals erred in reversing the trial court’s award of punitive damages and attorney fees. The reversal was based on the appellate court’s conclusions that actual malice is an essential element to justify the award of punitive damages, and that the record revealed no evidence of such malice on the part of Columbus Finance. This court agrees with both conclusions. It is an established principle of law in this state that punitive damages may be awarded in tort cases involving-fraud, insult or malice. Roberts v. Mason (1859), 10 Ohio St. 277; Saberton v. Greenwald (1946), 146 Ohio St. 414, 66 N. E. 2d 224. If punitive damages are proper, the aggrieved party may also recover reasonable attorney fees. Roberts v. Mason, supra; Peckham Iron Co. v. Harper (1884), 41 Ohio St. 100; Davis v. Tunison (1959), 168 Ohio St. 471, 155 N. E. 2d 904. Appellants premise their claim for punitive damages on the finance company’s alleged malice in executing on the automobile. The parties disagree as to a general description of the conduct which constitutes malice sufficient to sustain an award of punitive damages. Appellee contends that an award of punitive damages is proper only if “actual malice” on the part of the wrongdoer is shown. There is case law which directly supports that position. Davis v. Tunison, supra; Pickle v. Swinehart (1960), 170 Ohio St. 441, 166 N. E. 2d 227. See, also, Smithhisler v. Dutter (1952), 157 Ohio St. 454, 105 N. E. 2d 868, in which this court recognized that actual malice is ordinarily required in order to sustain an award of punitive damages, but that an exception is made for eases involving alienation of affection of a spouse. Actual malice was defined in one punitive damages — 184 — case as “ ‘that state of mind under which a person’s conduct is characterized by hatred or ill will, a spirit of revenge, retaliation, or a determination to vent his feelings upon other persons.’ ” Pickle v. Swinehart, supra, at 443 (quoting 35 Ohio Jurisprudence 2d 142, Malicious Prosecution, Section 22). Appellants assert in their sole proposition of law that “intentional, reckless, wanton, wilful and gross acts which cause injury to person or property may be sufficient to evidence that degree of malice required to support an award of punitive damages in tort actions.” This broad statement is also correct; actual malice may be inferred from conduct and surrounding circumstances. Davis v. Tunison, supra. However, this court concurs in the conclusion of the Court of Appeals that the record in this case contains absolutely no evidence from which actual malice upon the part of Columbus Finance can be inferred. Therefore, the Court of Appeals correctly reversed the trial court’s award of punitive damages and attorney fees. II. Columbus Finance contends, as cross-appellant, that the Court of Appeals erred in affirming the trial court’s award of $760 compensatory damages for Mrs. Howard’s mental suffering, anguish and humiliation. This court agrees with that contention. In a tort action, the measure of damages is normally that amount of money which will compensate and make whole the injured party. Pryor v. Webber (1970), 23 Ohio St. 2d 104, 263 N. E. 2d 235. Plaintiffs should be neither undercompensated nor overcompensated. Ordinarily, the injured party must be able to prove not only that he suffered a particular type of injury, but also the pecuniary value thereof. The existence and value of damages attributable to mental auguish and humiliation are notoriously difficult to prove. Such damages are easily feigned and practically impossible to value. Nevertheless, it is a certainty that such damages are caused by some wrongful acts. In an admitted — 185 — ly imperfect effort to separate the valid from the invalid claims, certain rules have been developed. For example, there is liability in this state for negligent infliction of mental distress only if the complained of act also resulted in a contemporaneous physical injury. Miller v. Baltimore & Ohio Southwestern Rd. Co. (1908), 78 Ohio St. 309, 85 N. E. 499; Davis v. Cleveland Ry. Co. (1939), 135 Ohio St. 401, 21 N. E. 2d 169. The apparent rationale behind this rule is that the observable physical injury caused by the wrongdoer sufficiently corroborates the injured party’s allegation of unobservable psychic injury. In the absence of a contemporaneous physical injury, damages attributable to mental distress are usually recoverable only if the wrongdoer’s act is a malicious or outrageous invasion of a personal right. See Miller v. Baltimore & Ohio Southwestern Rd. Co., supra; Housh v. Peth (1956), 165 Ohio St. 35, 133 N. E. 2d 340. In such a factual situation, the courts are confronted with an innocent victim and an intentional wrongdoer, and hence it is not surprising that the interest of the victim in obtaining full compensation is placed above the interest of the wrongdoer in protecting himself against potentially speculative damage awards. The wrongful execution in the present case involved neither contemporaneous physical injury to the Howards nor malicious or outrageous conduct on the part of Columbus Finance. Therefore, this court holds that the trial court’s award of damages for mental anguish and humiliation was unwarranted. Other jurisdictions, in cases factually equivalent to this appeal, have rendered similar holdings. Tisdale v. Major (1898), 106 Iowa 1, 75 N. W. 663; Gilbert v. Rothe (1921), 106 Neb. 549, 184 N. W. 119; Chappell v Ellis (1898), 123 N. C. 259, 31 S. E. 709; Stone v. C. I. T. Corp. (1936), 122 Pa. Sup. 71, 184 A. 674; Ainsa v. Moses (Tex. Civ. App. 1907), 100 S. W. 791; Anderson v. Sloane (1888), 72 Wis. 566, 40 N. W. 214. For the foregoing reasons, that portion of the judgment of the Court of Appeals reversing the trial court’s award of punitive damages and reasonable attorney fees — 186 — is affirmed, and that portion of the judgment of the Court of Appeals affirming the trial court’s award of compensatory damages for mental suffering, anguish and humiliation is reversed. Judgment affirmed in part and reversed in part. Stern and P. Brown, JJ., concur. W. Brown, J., concurs in paragraph one of the syllabus and in the judgment. Herbert and Corrigan, JJ., concur in paragraph two of the syllabus and dissent from the judgment in part and concur in part. Cblebrezze, J., dissents. Footnotes [*] Both lower courts referred to the action asserted in the cross-complaint as one for wrongful attachment. This designation was incorrect. Attachment has been defined as “a provisional auxiliary remedy, created by statute, whereby a creditor can obtain a contingent lien on property of the debtor, and thus have this property kept available to satisfy any judgment which he may recover against the debtor * * Oleck, Debtor-Creditor Law, 30, Section 8. This court has described attachment as “an execution before judgment * * *.” Green v. Coit (1909), 81 Ohio St. 280, 285, 90 N. E. 794, 795. In this state, the tort of wrongful attachment is an offshoot of malicious prosecution or abuse of process. Fortman v. Rottier (1858), 8 Ohio St. 548; Crow v. Sims (1913), 88 Ohio St. 214, 102 N. E. 741. There was no attachment in the present ease; the Howards’ automobile was seized by the finance company not as security for a potential judgment, but to satisfy a judgment already rendered. The prejudgment remedy of attachment has a postjudgment counterpart—the writ of execution. 30 American Jurisprudence 2d 445, Execution, Section 1, describes executions in these terms: “Generally speaking, an execution is a remedy afforded by law for the enforcement of a judgment. It is the means by which a judgment is made effective. Its object is to obtain satisfaction of the judgment on which the writ is issued.” A person whose property is wrongfully seized pursuant to a writ of execution has a cause of action based either on trespass—Gibson Stockwell & Co. v. Chillicothe Branch Bank (1860), 11 Ohio St. 311—or conversion—Sparling v. Todd (1875), 27 Ohio St. 521; Kimmel v. Paronto (1895), 52 Ohio St. 468, 43 N. E. 1040. The present appeal clearly involves a wrongful execution.