2020 Georgia Code
Title 51 - Torts
Chapter 12 - Damages
Article 1 - General Provisions
§ 51-12-5. Additional Damages for Aggravating Circumstances

1. In a tort action in which there are aggravating circumstances, in either the act or the intention, the jury may give additional damages to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff.
2. This Code section shall apply only to causes of action for torts arising before July 1, 1987.

(Orig. Code 1863, § 2998; Code 1868, § 3011; Code 1873, § 3066; Code 1882, § 3066; Civil Code 1895, § 3906; Civil Code 1910, § 4503; Code 1933, § 105-2002; Ga. L. 1987, p. 915, § 4.)

- Punitive damages, § 51-12-5.1.

- For article surveying torts law, see 34 Mercer L. Rev. 271 (1982). For article, "Punitive Damages - Their Permissible Scope," see 19 Ga. St. B. J. 118 (1983). For article discussing damages in an excess liability action, "The Liability Insurance Policy - Above and Beyond Coverage: Extra-Contractual Rights and Duties," see 22 Ga. State Bar J. 137 (1986). For article, "The Torok Tort: Recovery for Abusive Litigation," see 23 Ga. St. B. J. 84 (1987). For annual survey of the law of evidence, see 38 Mercer L. Rev. 215 (1986). For article, "Nonjudicial Foreclosures in Georgia Revisited," see 24 Ga. St. B. J. 43 (1987). For article, "Products Liability Law in Georgia Including Recent Developments," see 43 Mercer L. Rev. 27 (1991). For note, "Allowance of Punitive Damages in Products Liability Claims," see 6 Ga. L. Rev. 613 (1972). For comment on Atlanta Journal Co. v. Doyal, 31 Ga. App. 592, 60 S.E.2d 802 (1950), see 13 Ga. B. J. 234 (1950). For comment discussing admissibility of evidence of malice not previously pleaded, in light of Van Gundy v. Wilson, 84 Ga. App. 429, 66 S.E.2d 93 (1951), see 14 Ga. B. J. 358 (1952). For comment on Aderhold v. Zimmer, 86 Ga. App. 204, 71 S.E.2d 270 (1952), see 15 Ga. B. J. 355 (1953). For comment, "Are Excessive Punitive Damages Unconstitutional in Georgia?: This Question and More in Colonial Pipeline Co. v. Brown," see 6 Ga. St. U.L. Rev. 85 (1989).

ANALYSIS

• General Consideration
• Aggravating Circumstances
• Malice or Ill Will
• Pleadings
• Jury Charge
• Jury Determinations
• Applicability to Specific Cases

O.C.G.A. §§ 51-12-5,51-12-5.1, and51-12-6 must be construed together. Mallard v. Jenkins, 186 Ga. App. 167, 366 S.E.2d 775, cert. denied, 186 Ga. App. 918, 366 S.E.2d 775 (1988).

- The excessive fines clause of Ga. Const. 1983, Art. I, Sec. I, Para. XVII applies to the imposition of punitive damages in civil cases. Colonial Pipeline Co. v. Brown, 258 Ga. 115, 365 S.E.2d 827, appeal dismissed, 488 U.S. 805, 109 S. Ct. 36, 102 L. Ed. 2d 15 (1988).

Upon determination of the constitutional limit on a particular award, the district court may strike the unconstitutional excess from a jury's punitive damage award and enter judgment for that amount as a matter of law. Johansen v. Combustion Eng'g., Inc., 170 F.3d 1320 (11th Cir. 1999), cert. denied, 528 U.S. 931, 120 S. Ct. 329, 145 L. Ed. 2d 256 (1999).

Punitive damages serve purpose of punishing the defendant, of teaching the defendant not to do an act again, and of deterring others from following the defendant's example. Dyer v. Merry Shipping Co., 650 F.2d 622 (5th Cir. 1981), overruled on other grounds, Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir. 1995).

Under O.C.G.A. § 51-12-5, punishing the defendant is not a proper ground upon which to base an award of additional damages; deterring the defendant from similar future conduct is, however. Salsbury Labs., Inc. v. Merieux Labs., Inc., 908 F.2d 706 (11th Cir. 1990).

Despite the misnomer "punitive" damages, the purpose of O.C.G.A. § 51-12-5 is to deter the defendant from similar conduct in the future, rather than to punish the defendant. WMH, Inc. v. Thomas, 260 Ga. 654, 398 S.E.2d 196 (1990).

In Georgia, the purpose of punitive damages is to deter the repetition of reprehensible conduct by the defendant or others. Hospital Auth. v. Jones, 261 Ga. 613, 409 S.E.2d 501 (1991), cert. denied, 502 U.S. 1096, 112 S. Ct. 1175, 117 L. Ed. 2d 420 (1992).

Punitive damages may be awarded in suit based in tort. Pelletier v. Schultz, 157 Ga. App. 64, 276 S.E.2d 118 (1981).

By its express term, O.C.G.A. § 51-12-5 applies only to tort actions and when the action of the plaintiff in this case was one to cancel a deed (on the ground that the deed was a forgery) there could be no recovery of such damages under that section. Roberts v. Scott, 212 Ga. 87, 90 S.E.2d 413 (1955).

This section is comprehensive in its terms and embraces every tort of every character and description, committed by every kind of wrong-doer, and visits upon the offender exemplary damages, or damages to compensate for wounded feelings. Investment Sec. Corp. v. Cole, 57 Ga. App. 97, 194 S.E. 411 (1937), aff'd, 186 Ga. 809, 199 S.E. 126 (1938).

- Since the cause of action arose prior to July 1, 1987, the correct standard for awarding punitive damages was that found in O.C.G.A. § 51-12-5, rather than O.C.G.A. § 51-12-5.1 which allows punitive damages to be recovered when there is evidence of aggravating circumstances in either the act or the intention. Carter v. Myers, 204 Ga. App. 498, 419 S.E.2d 747 (1992).

Cause of action arising prior to effective date of § 51-12-5.1. - In an action for misappropriating trade secrets, the case is one to protect property and is not a continuing tort. Therefore, since the cause of action arose prior to July 1, 1987, O.C.G.A. § 51-12-5, rather than O.C.G.A. § 51-12-5.1, applied. Salsbury Labs., Inc. v. Merieux Labs., Inc., 908 F.2d 706 (11th Cir. 1990).

Damages are allowable either to deter wrongdoer or to compensate for wounded feelings, but not both. Westview Cem. v. Blanchard, 234 Ga. 540, 216 S.E.2d 776 (1975).

- When the plaintiffs do not seek compensatory damages, but only equitable relief, an award of punitive damages, under O.C.G.A. § 51-12-5, is without any foundation and cannot be made. Dunaway v. Clark, 536 F. Supp. 664 (S.D. Ga. 1982).

An award of exemplary damages cannot stand since compensatory damages were not awarded pursuant to one count of the complaint although a money judgment was entered on a second count, if the sole recovery on the first count was in equity and the trial court specifically instructed the jury that the plaintiff's prayer for exemplary damages was based exclusively on the first count, and not on the second. Artis v. Crenshaw, 256 Ga. 488, 350 S.E.2d 247 (1986).

Former Code 1933, §§ 105-2001, 105-2002, and 105-2003 (see now O.C.G.A. §§ 51-12-4,51-12-5, and51-12-6) must be construed in pari materia. Blanchard v. Westview Cem., 133 Ga. App. 262, 211 S.E.2d 135, modified, 234 Ga. 540, 216 S.E.2d 776 (1974).

Although this section does not speak of "punitive damages," additional damages allowed are what would commonly be called "punitive" in that such damages are in addition to compensatory damages and in that the award is based not on the extent of the plaintiff's injury but in the aggravated nature of the defendant's conduct. Westview Cem. v. Blanchard, 234 Ga. 540, 216 S.E.2d 776 (1975); Woodbury v. Whitmire, 246 Ga. 349, 271 S.E.2d 491 (1980).

- Though sometimes referred to as "punitive damages," the additional damages authorized in some cases by this section are in this state regarded as exemplary damages. Interstate Life & Accident Co. v. Brewer, 56 Ga. App. 599, 193 S.E. 458 (1937).

- The "wounded feelings" referred to in this section are not the same in nature as ordinary mental pain and suffering resulting from a physical injury; they relate to the self respect, sensibilities or pride of a person. Interstate Life & Accident Co. v. Brewer, 56 Ga. App. 599, 193 S.E. 458 (1937).

Mental pain and suffering, such as result from a physical injury, and wounded feelings may arise from the same wrong; and wounded feelings may be of even longer duration than the mental pain and suffering which result from a physical injury. Interstate Life & Accident Co. v. Brewer, 56 Ga. App. 599, 193 S.E. 458 (1937).

Punitive damages are not supportable when the tort is not proved. Associated Software Consultants Org., Inc. v. Wysocki, 177 Ga. App. 135, 338 S.E.2d 679 (1985); Clarke v. Cox, 197 Ga. App. 83, 397 S.E.2d 598 (1990).

In an attorney negligence case, the district court's interlocutory ruling excluding the clients' expert was case-dispositive as the crux of the clients' unjust enrichment and breach of fiduciary duty claims was the law firm's failure to meet the standard of care imposed by the attorney-client relationship; both the breach of fiduciary duty and unjust enrichment counts incorporated the allegations of legal malpractice without adding any independent factual allegations, and the latter count expressly alleged that the law firm was unjustly enriched by receiving compensation for defective, unskillful, and harmful legal advice. Additionally, the clients' O.C.G.A. § 13-6-11 attorney's fee claim and O.C.G.A. § 51-12-5.1 punitive damages claim were not supportable without an award of relief on an underlying claim; thus, the clients' claims, as pled, all required proof of attorney malpractice, and the interlocutory ruling excluding the clients' expert's testimony was case-dispositive. OFS Fitel, LLC v. Epstein, 549 F.3d 1344 (11th Cir. 2008).

- Since the jury did not return any actual damages award, the trial court did not err in striking an award for punitive damage. Kelley v. Austell Bldg. Supply, Inc., 164 Ga. App. 322, 297 S.E.2d 292 (1982).

Punitive damages may properly be based upon aggravated tort involving only property rights. Bowen v. Waters, 170 Ga. App. 65, 316 S.E.2d 497 (1984), aff'd, 175 Ga. App. 884, 334 S.E.2d 910 (1985).

Punitive damages constitute no part of a property right, since they are awarded either to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff. Hubbard v. Ruff, 97 Ga. App. 251, 103 S.E.2d 134 (1958).

Punitive damages were not assignable as a property right under former Code 1933, § 85-1805 (see now O.C.G.A. § 44-12-24). Maryland Cas. Co. v. Brown, 321 F. Supp. 309 (N.D. Ga. 1971).

The right to bring an action is property, whether actual or compensatory damages are involved, but the right to punitive damages is not property. Maryland Cas. Co. v. Brown, 321 F. Supp. 309 (N.D. Ga. 1971).

Subrogee has no right to recover exemplary damages in addition to compensatory damages. Maryland Cas. Co. v. Brown, 321 F. Supp. 309 (N.D. Ga. 1971).

Fact that damages are accumulated or enhanced does not in itself render the damages penal. Aretz v. United States, 456 F. Supp. 397 (S.D. Ga. 1978), aff'd, 660 F.2d 531 (5th Cir. 1981).

Mere negligence, although gross, will not alone authorize recovery of punitive damages. BLI Constr. Co. v. Debari, 135 Ga. App. 299, 217 S.E.2d 426 (1975); Alliance Transp., Inc. v. Mayer, 165 Ga. App. 344, 301 S.E.2d 290 (1983); Stolle Corp. v. McMahon, 195 Ga. App. 270, 393 S.E.2d 52 (1990); Evans v. Willis, 212 Ga. App. 335, 441 S.E.2d 770 (1994).

If a tort is committed through mistake, ignorance, or mere negligence, the damages are limited to the actual injury received for vindictive or punitive damages are recoverable only when a defendant acts maliciously, willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others. Molton v. Commercial Credit Corp., 127 Ga. App. 390, 193 S.E.2d 629 (1972).

Great repetition of merely negligent torts may warrant the recovery of damages to deter the wrongdoer from continuing to harass and annoy plaintiff and destroying plaintiff's property. Collins v. Baker, 51 Ga. App. 669, 181 S.E. 425 (1935).

"Personal tort" need not be committed by wrongdoer before additional damages can be awarded when there are aggravating circumstances either in the act or in the intention. Atlantic Co. v. Farris, 62 Ga. App. 212, 8 S.E.2d 665 (1940); T.G. & Y. Stores Co. v. Waters, 175 Ga. App. 884, 334 S.E.2d 910 (1985).

- An act of a person, although without legal right or authority, upon the person or property of another, which causes damage, when done in good faith and without willfulness or malice, or such gross neglect as to indicate a wanton disregard for the rights of another will not authorize the infliction of punitive damages. Dalon Contracting Co. v. Artman, 101 Ga. App. 828, 115 S.E.2d 377 (1960).

Actual fraud, which requires a showing of willful misconduct, will support an award of punitive damages. Trailmobile, Inc. v. Barton Envtl., Inc., 167 Ga. App. 1, 306 S.E.2d 1 (1983).

- When punitive damages are claimed by virtue of this section, motive becomes material. Miley v. State, 118 Ga. 274, 45 S.E. 245 (1903); Louisville & Nashville R.R. v. Earl, 139 Ga. 456, 77 S.E. 638 (1913).

Claim for punitive damages alone will not lie under this section. Beverly v. Observer Publishing Co., 88 Ga. App. 490, 77 S.E.2d 80 (1953); Haugabrook v. Taylor, 225 Ga. 317, 168 S.E.2d 162 (1969); Queen v. Harrell, 131 Ga. App. 666, 206 S.E.2d 578 (1974).

Proper construction of this section is that punitive damages may be awarded as damages additional to such as may be primarily recovered in a pending tort action. There must be a right under the pleadings and evidence to recover general, nominal or special damages. Otherwise, punitive damages could not and would not be additional. Beverly v. Observer Publishing Co., 88 Ga. App. 490, 77 S.E.2d 80 (1953); Goodwin v. Candace, Inc., 92 Ga. App. 438, 88 S.E.2d 723 (1955).

When no use of action for the recovery of general, special or nominal damages is set forth in the plaintiff's petition, there can be no recovery of additional damages. Goodwin v. Candace, Inc., 92 Ga. App. 438, 88 S.E.2d 723 (1955).

This section refers to punitive damages as "additional" damages, indicating that it is only when the jury returns a verdict for actual damages that punitive damages may be found. Piedmont Cotton Mills, Inc. v. General Whse. No. Two, Inc., 222 Ga. 164, 149 S.E.2d 72 (1966).

When the special damages claimed are not recoverable, the prayer for punitive damages cannot be sustained. Georgia Educ. Auth. v. Davis, 227 Ga. 36, 178 S.E.2d 853 (1970).

There can be no recovery of exemplary damages under this section unless there is a recovery of compensatory damages. Blanchard v. Westview Cem., 133 Ga. App. 262, 211 S.E.2d 135 (1974), modified, 234 Ga. 540, 216 S.E.2d 776 (1975).

Punitive damages are not recoverable when there is no entitlement to compensatory damages. Motor Fin. Co. v. Harris, 150 Ga. App. 762, 258 S.E.2d 628 (1979).

Even though aggravating circumstances may exist, it is improper to award punitive damages unless general damages have also been awarded. For exemplary damages are "additional damages" and a claim for them will not lie when general damages are not recovered. Mayfield v. Ideal Enters., Inc., 157 Ga. App. 266, 277 S.E.2d 62 (1981).

Award of punitive damages and attorney fees, in absence of any finding of actual damages, is improper as a matter of law. Daiss v. Woodbury, 163 Ga. App. 88, 293 S.E.2d 876 (1982).

When there was no award of compensatory damages, the verdict awarding "punitive" damages could not stand. Sheppard v. Tribble Heating & Air Conditioning, Inc., 163 Ga. App. 732, 294 S.E.2d 572 (1982).

Plaintiff is not entitled under former Code 1933, §§ 105-2002 and 105-2003 (see now O.C.G.A. §§ 51-12-5 and51-12-6) to double finding of damages for wounded feelings, nor can the jury assess damages for the double purpose of punishment and prevention, or damages for humiliation and mortification and also damages to punish and deter from repeating the trespass or wrong. Baldwin v. Davis, 188 Ga. 587, 4 S.E.2d 458 (1939); Westview Cem. v. Blanchard, 234 Ga. 540, 216 S.E.2d 776 (1975); Alford v. Oliver, 169 Ga. App. 865, 315 S.E.2d 299 (1984).

An award of exemplary damages to deter the wrongdoer and exemplary damages as compensation for the wounded feelings of the plaintiff double exemplary damages and is not allowable. John Deere Plow Co. v. Head, 68 Ga. App. 502, 23 S.E.2d 523 (1942).

Jury cannot assess damages for the double purpose of punishment and prevention. Johnson v. Morris, 158 Ga. 403, 123 S.E. 707 (1924); Metro Chrysler-Plymouth, Inc. v. Pearce, 121 Ga. App. 835, 175 S.E.2d 910 (1970).

Jury is not authorized to assess damages as a punishment for the wrong done. The jury can only award such additional damages to deter the wrongdoer from repeating the trespass or injury, or as compensation for the wounded feelings of the injured party. Metro Chrysler-Plymouth, Inc. v. Pearce, 121 Ga. App. 835, 175 S.E.2d 910 (1970).

A plaintiff cannot recover compensatory damages for injury to peace, feelings and happiness (mental pain and suffering alone arising out of a willful tort) and exemplary damages for "wounded feelings." This would amount to a recovery of "double damages" which is not allowed. Blanchard v. Westview Cem., 133 Ga. App. 262, 211 S.E.2d 135 (1974), modified, 234 Ga. 540, 216 S.E.2d 776 (1975).

These additional exemplary damages may be awarded for either of the two purposes mentioned in this section but not for both, for this section is phrased in the alternative. Blanchard v. Westview Cem., 133 Ga. App. 262, 211 S.E.2d 135 (1974), modified, 234 Ga. 540, 216 S.E.2d 776 (1975).

When damages were recovered under former Code 1933, § 105-2003 (see now O.C.G.A. § 51-12-6), any additional recovery under former Code 1933, § 105-2002 (see now O.C.G.A. § 51-12-5) would be a double recovery. Westview Cem. v. Blanchard, 234 Ga. 540, 216 S.E.2d 776 (1975).

When the only injury is to the peace, feelings, or happiness, the award of exemplary (punitive) damages in addition to damages for mental anguish amounts to a double recovery and is unauthorized. Greenwood Cem. v. Travelers Indem. Co., 238 Ga. 313, 232 S.E.2d 910 (1977).

Damages awarded under former Code 1933, §§ 105-2002 and 105-2003 (see now O.C.G.A. §§ 51-12-5 and51-12-6) constituted prohibited double recovery. Gibson's Prods., Inc. v. Edwards, 146 Ga. App. 678, 247 S.E.2d 183 (1978).

Although this section does not speak of punitive damages, the additional damages allowed are what would commonly be called punitive and such damages are allowable either to deter the wrongdoer or to compensate for wounded feelings, but not both. Suber v. Fountain, 151 Ga. App. 283, 259 S.E.2d 685 (1979).

Under this section, damages are allowable either to deter the wrongdoer or to compensate for wounded feelings but not both. Whitmire v. Woodbury, 154 Ga. App. 159, 267 S.E.2d 783, rev'd on other grounds, 246 Ga. 349, 271 S.E.2d 491 (1980).

No damages are allowable under both former Code 1933, §§ 105-2002 and 105-2003 (see now O.C.G.A. §§ 51-12-5 and51-12-6), inasmuch as any additional recovery under former Code 1933, § 105-2002 when damages were allowable under former Code 1933, § 105-2003 would be a double recovery, even though the trial court endeavored to carefully leave out the language of former Code 1933, § 105-2002. Simmons v. Edge, 155 Ga. App. 6, 270 S.E.2d 457 (1980).

- Additional damages which would deter a wrongdoer from repeating the trespass and which would be compensation for the wounded feelings of the plaintiff are recoverable in addition to general damages for mental and physical pain and suffering, and a charge authorizing a jury to assess damages of the first character is not subject to the objection that, by reason of the court having charged that there could be a recovery for damages of the second character, the charge authorized a recovery for double damages for the same injury. Battle v. Kilcrease, 54 Ga. App. 808, 189 S.E. 573 (1936).

- Since the plaintiff did not seek compensatory damages for mental anguish or punitive damages for wounded feelings, evidence of the plaintiff's personal and mental pain and suffering was not germane to the question of whether there were "aggravating circumstances, in either the act or the intention" of the defendant, and its admission was reversible error. Shadowood Assocs. v. Kirk, 170 Ga. App. 209, 316 S.E.2d 487 (1984).

Damages awarded plaintiff for purpose of deterring wrongdoer from similar trespass are not compensatory damages for wounded feelings, but merely damages awarded the plaintiff to protect the plaintiff from a future similar injury on the part of the defendant. Franklin v. Evans, 55 Ga. App. 177, 189 S.E. 722 (1937); Garner v. Mears, 97 Ga. App. 506, 103 S.E.2d 610 (1958).

When the basis of punitive damages awarded under O.C.G.A. § 51-12-5 was to deter the wrongdoer and not as compensation for wounded feelings, the award is not measured as a compensation but is fixed in an amount necessary to deter future acts. Smith v. Miliken, 247 Ga. 369, 276 S.E.2d 35 (1981).

Insurance coverage for punitive damages is not against public policy. Federal Ins. Co. v. National Distrib. Co., 203 Ga. App. 763, 417 S.E.2d 671, cert. denied, 203 Ga. App. 906, 417 S.E.2d 671 (1992).

- The onus is on the plaintiff to prove aggravating circumstances. Grier v. Ward, 23 Ga. 145 (1857); Savannah, F. & W. Ry. v. Stewart, 71 Ga. 427 (1883); Western & Atl. R.R. v. Turner, 72 Ga. 292, 53 Am. R. 842 (1884).

Evidence of worldly circumstances was not admissible on issue of punitive damages under former Code 1933, § 105-2002 (see now O.C.G.A. § 51-12-5) (as distinguished from vindictive damages under former Code 1933, § 105-2003 (see now O.C.G.A. § 51-12-6). Bob Maddox Dodge, Inc. v. McKie, 155 Ga. App. 263, 270 S.E.2d 690 (1980).

- In an action under O.C.G.A. § 51-1-18(a) by a parent for furnishing alcoholic beverages to his or her underage child without the parent's consent and, when the parent has prayed for general and special damages, and the parent has not yet made an election to forego all other damages in favor of O.C.G.A. § 51-12-6 damages, the trial court is correct in denying the parent's motion to compel discovery of defendant's worldly circumstances. If, however, the parent timely amends the parent's complaint to abandon all claims except one for § 51-12-6 damages, the parent will be entitled to discover the defendant's worldly circumstances. Stepperson, Inc. v. Long, 256 Ga. 838, 353 S.E.2d 461 (1987) (decided prior to 1987 amendment of § 51-12-6).

Cited in Lamb v. McAfee, 26 Ga. App. 3, 105 S.E. 250 (1920); Georgia Ry. & Power Co. v. Turner, 33 Ga. App. 101, 125 S.E. 598 (1924); Tennessee, Ala. & Ga. Ry. v. Zugar, 193 Ga. 386, 18 S.E.2d 758 (1942); Anderson v. Buice, 69 Ga. App. 265, 25 S.E.2d 96 (1943); Grant v. Hart, 197 Ga. 662, 30 S.E.2d 271 (1944); Harrison v. Lovett, 198 Ga. 466, 31 S.E.2d 799 (1944); DeBardelaben v. Coleman, 74 Ga. App. 261, 39 S.E.2d 589 (1946); Foster v. Sikes, 202 Ga. 122, 42 S.E.2d 441 (1947); Phillips v. Smith, 76 Ga. App. 705, 47 S.E.2d 156 (1948); Meadows v. Vaughan, 81 Ga. App. 45, 57 S.E.2d 689 (1950); C.G. Aycock Realty Co. v. Burrowes, 81 Ga. App. 560, 59 S.E.2d 406 (1950); Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 60 S.E.2d 802 (1950); American Thread Co. v. Rochester, 82 Ga. App. 873, 62 S.E.2d 602 (1950); Kelly v. Adams, 84 Ga. App. 450, 66 S.E.2d 144 (1951); Lankford v. Dockery, 85 Ga. App. 86, 67 S.E.2d 800 (1951); Freeman v. Busch Jewelry Co., 98 F. Supp. 963 (N.D. Ga. 1951); Aderhold v. Zimmer, 86 Ga. App. 204, 71 S.E.2d 270 (1952); Darden v. McMillian, 93 Ga. App. 892, 93 S.E.2d 169 (1956); Nichols v. Williams Pontiac, Inc., 95 Ga. App. 752, 98 S.E.2d 659 (1957); Allstadt v. Johnson, 97 Ga. App. 584, 103 S.E.2d 683 (1958); Hancock v. Moriarity, 215 Ga. 274, 110 S.E.2d 403 (1959); Haggard v. Shaw, 100 Ga. App. 813, 112 S.E.2d 286 (1959); Sudderth v. National Lead Co., 272 F.2d 259 (5th Cir. 1959); Dodd v. Slater, 101 Ga. App. 362, 114 S.E.2d 170 (1960); Cook v. Robinson, 216 Ga. 328, 116 S.E.2d 742 (1960); Gwinnett County v. Archer, 102 Ga. App. 821, 118 S.E.2d 102 (1960); Barrow v. Georgia Lightweight Aggregate Co., 103 Ga. App. 704, 120 S.E.2d 636 (1961); Wright v. Lester, 105 Ga. App. 107, 123 S.E.2d 672 (1961); United States ex rel. Dixie Plumbing Supply Co. v. Taylor, 293 F.2d 717 (5th Cir. 1961); Jones v. Hudgins, 218 Ga. 43, 126 S.E.2d 414 (1962); Studdard v. Evans, 108 Ga. App. 819, 135 S.E.2d 60 (1964); King v. Baker, 109 Ga. App. 235, 136 S.E.2d 8 (1964); Butts v. Curtis Publishing Co., 225 F. Supp. 916 (N.D. Ga. 1964); NAACP v. Overstreet, 221 Ga. 16, 142 S.E.2d 816 (1965); Jackson v. Hatch, 115 Ga. App. 623, 155 S.E.2d 676 (1967); Ford Motor Credit Co. v. Hitchcock, 116 Ga. App. 563, 158 S.E.2d 468 (1967); Siler v. Gunn, 117 Ga. App. 325, 160 S.E.2d 427 (1968); Wilson v. McLendon, 225 Ga. 119, 166 S.E.2d 345 (1969); Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827 (1969); Jones v. Spindel, 122 Ga. App. 390, 177 S.E.2d 187 (1970); Jones v. Spindel, 128 Ga. App. 88, 196 S.E.2d 22 (1973); Central Chevrolet, Inc. v. Campbell, 129 Ga. App. 30, 198 S.E.2d 362 (1973); Johnson v. Cleveland, 131 Ga. App. 560, 206 S.E.2d 704 (1974); F.N. Roberts Corp. v. Southern Bell Tel. & Tel. Co., 132 Ga. App. 800, 209 S.E.2d 138 (1974); Sheet Metal Workers Int'l Ass'n v. Carter, 133 Ga. App. 872, 212 S.E.2d 645 (1975); Wilson v. Strange, 235 Ga. 156, 219 S.E.2d 88 (1975); Vineyard Village-Georgia, Inc. v. Crum, 136 Ga. App. 335, 221 S.E.2d 208 (1975); Pilkenton v. Eubanks, 139 Ga. App. 673, 229 S.E.2d 146 (1976); Delta Air Lines v. Isaacs, 141 Ga. App. 209, 233 S.E.2d 212 (1977); Brown v. Techdata Corp., 238 Ga. 622, 234 S.E.2d 787 (1977); Sturdivant v. Allstate Ins. Co., 143 Ga. App. 19, 237 S.E.2d 408 (1977); Clark v. Aenchbacher, 143 Ga. App. 282, 238 S.E.2d 442 (1977); Griffin v. Wittfeld, 143 Ga. App. 485, 238 S.E.2d 589 (1977); Rodrigue v. Mendenhall, 145 Ga. App. 666, 244 S.E.2d 598 (1978); Wilkinson v. Davis, 148 Ga. App. 696, 252 S.E.2d 201 (1979); Felton v. Mercer, 149 Ga. App. 358, 254 S.E.2d 398 (1979); United States Shoe Corp. v. Jones, 149 Ga. App. 595, 255 S.E.2d 73 (1979); Calloway v. Rossman, 150 Ga. App. 381, 257 S.E.2d 913 (1979); Aquafine Corp. v. Fendig Outdoor Adv. Co., 155 Ga. App. 661, 272 S.E.2d 526 (1980); Riggs v. Peach State Ford Truck Sales, Inc., 503 F. Supp. 190 (N.D. Ga. 1980); Alewine v. City Council, 505 F. Supp. 880 (S.D. Ga. 1981); Travelers Ins. Co. v. King, 160 Ga. App. 473, 287 S.E.2d 381 (1981); Atlanta Limousine Airport Servs., Inc. v. Rinker, 160 Ga. App. 494, 287 S.E.2d 395 (1981); Jones v. Miles, 656 F.2d 103 (5th Cir. 1981); Field Developers, Inc. v. Johnson, 160 Ga. App. 180, 289 S.E.2d 321 (1981); Colonial Stores, Inc. v. Fishel, 160 Ga. App. 739, 288 S.E.2d 21 (1981); Jones v. Alexander, 163 Ga. App. 278, 293 S.E.2d 537 (1982); Hayes v. Irwin, 541 F. Supp. 397 (N.D. Ga. 1982); Budres v. Farmer, 17 Bankr. 111 (Bankr. N.D. Ga. 1981); Charter Mtg. Co. v. Ahouse, 165 Ga. App. 497, 300 S.E.2d 328 (1983); McCall v. Allstate Ins. Co., 251 Ga. 869, 310 S.E.2d 513 (1984); Slutzky v. Warbington, 171 Ga. App. 621, 320 S.E.2d 623 (1984); Dempsey Bros. Dairies v. Blalock, 173 Ga. App. 7, 325 S.E.2d 410 (1984); Spano v. Swoger, 173 Ga. App. 269, 325 S.E.2d 890 (1985); Getz Servs., Inc. v. Perloe, 173 Ga. App. 532, 327 S.E.2d 761 (1985); Mr. Transmission, Inc. v. Thompson, 173 Ga. App. 773, 328 S.E.2d 397 (1985); Munford, Inc. v. Anglin, 174 Ga. App. 290, 329 S.E.2d 526 (1985); Donson Nursing Facilities v. Dixon, 176 Ga. App. 700, 337 S.E.2d 351 (1985); Pope v. Propst, 179 Ga. App. 211, 345 S.E.2d 880 (1986); Henderson v. Glen Oak, Inc., 256 Ga. 619, 351 S.E.2d 640 (1987); National Gypsum Co. v. Wammock, 256 Ga. 803, 353 S.E.2d 809 (1987); Kesler v. Veal, 182 Ga. App. 444, 356 S.E.2d 254 (1987); Gallaher v. Teeple, 183 Ga. App. 31, 357 S.E.2d 808 (1987); Lamb v. R.L. Mathis Certified Dairy Co., 183 Ga. App. 455, 359 S.E.2d 214 (1987); Wammock v. Celotex Corp., 826 F.2d 990 (11th Cir. 1987); Wammock v. Celotex Corp., 835 F.2d 818 (11th Cir. 1988); Associated Health Sys. v. Jones, 185 Ga. App. 798, 366 S.E.2d 147 (1988); Stover v. Atchley, 189 Ga. App. 56, 374 S.E.2d 775 (1988); Insurance Co. of N. Am. v. Smith, 189 Ga. App. 353, 375 S.E.2d 866 (1988); Dyches Constr. Co. v. Strauss, 192 Ga. App. 454, 385 S.E.2d 316 (1989); Intown Enters., Inc. v. Barnes, 721 F. Supp. 1263 (N.D. Ga. 1989); Getz Exterminators of Ga., Inc. v. Towe, 193 Ga. App. 268, 387 S.E.2d 338 (1989); Petrolane Gas Serv., Inc. v. Eusery, 193 Ga. App. 860, 389 S.E.2d 355 (1989); Borg-Warner Acceptance Corp. v. Boat Trading, Inc., 194 Ga. App. 63, 389 S.E.2d 555 (1989); Gaither v. Barclaysmerican/Financial of Ga., Inc., 194 Ga. App. 188, 390 S.E.2d 97 (1990); Simon v. Shearson Lehman Bros., 895 F.2d 1304 (11th Cir. 1990); Lamb v. Georgia-Pacific Corp., 194 Ga. App. 848, 392 S.E.2d 307 (1990); John D. Robinson Corp. v. Southern Marine & Indus. Supply Co., 196 Ga. App. 402, 395 S.E.2d 837 (1990); Collins v. State Farm Mut. Auto. Ins. Co., 197 Ga. App. 309, 398 S.E.2d 207 (1990); Read v. Benedict, 200 Ga. App. 4, 406 S.E.2d 488 (1991); Bruno v. Evans, 200 Ga. App. 437, 408 S.E.2d 458 (1991); Shepherd Constr. Co. v. Jarrett, 202 Ga. App. 152, 413 S.E.2d 742 (1991); Trust Co. Bank v. Stubbs, 203 Ga. App. 557, 417 S.E.2d 373 (1992); Shaw v. Ruiz, 207 Ga. App. 299, 428 S.E.2d 98 (1993); Macon Tel. Publishing Co. v. Tatum, 208 Ga. App. 111, 430 S.E.2d 18 (1993); ITT Corp. v. Xylem Group, LLC, F. Supp. 2d (N.D. Ga. Aug. 5, 2013).

In order to bring this section into operation, there must be a tort when there are aggravating circumstances, either in the act or the intention. BLI Constr. Co. v. Debari, 135 Ga. App. 299, 217 S.E.2d 426 (1975).

- It is not essential to a recovery for punitive damages that the person inflicting the damage was guilty of willful and intentional misconduct, but sufficient that the act be done under such circumstances as evinces an entire want of care and a conscious indifference to consequences; such conduct may constitute "aggravating circumstances in the act," which would authorize a jury to give additional damages as provided in this section. Battle v. Kilcrease, 54 Ga. App. 808, 189 S.E. 573 (1936).

- In order to show that the aggravating circumstances were of such a kind or character as to entitle the plaintiff to recover exemplary damages, it is essential to prove malice or lack of probable cause, or to show a willful or wanton trespass. Investment Sec. Corp. v. Cole, 57 Ga. App. 97, 194 S.E. 411 (1937), aff'd, 186 Ga. 809, 199 S.E. 126 (1938).

- If there are aggravating circumstances, either in the actions or the intentions of the defendants, the jury may give additional damages called punitive, under this section. If aggravating circumstances are proved this character of damage may be given even when the actual injury is small. Sikes v. Foster, 74 Ga. App. 350, 39 S.E.2d 585 (1946), rev'd on other grounds, 202 Ga. 122, 42 S.E.2d 441 (1947).

Aggravating circumstances such as to authorize an award of additional damages are defined as meaning willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. Dalon Contracting Co. v. Artman, 101 Ga. App. 828, 115 S.E.2d 377 (1960).

- Additional damages to deter the wrongdoer from repeating the trespass may be awarded when there are aggravating circumstances either in the act or in the intention, and gross negligence amounting to that want of care which willfully disregards the rights of others will support the award. Black v. Georgia Power Co., 151 Ga. App. 727, 261 S.E.2d 461 (1979).

When a plaintiff pleads and proves actual pecuniary loss for which the plaintiff seeks compensatory damages, and the tort complained of is of such an aggravated nature to warrant a charge on punitive damages, it is permissible for the jury to award both compensatory damages for the injury done and additional or punitive damages to either compensate for wounded feelings or to deter the defendant from similar, wrongful conduct. Woodbury v. Whitmire, 246 Ga. 349, 271 S.E.2d 491 (1980).

Allegations of simple negligence, absent a showing of an aggravating circumstance, will not support a claim for exemplary damages. Ticor Constr. Co. v. Brown, 255 Ga. 547, 340 S.E.2d 923 (1986).

Aggravating circumstances must be sufficient to show willful misconduct, malice, fraud, oppression, or entire want of care evidencing conscious indifferences to consequences required by this section. Jackson v. Co-op Cab Co., 102 Ga. App. 688, 117 S.E.2d 627 (1960).

Aggravating circumstance must relate to the tort being sued on. McNorrill v. Candler Gen. Hosp., 188 Ga. App. 636, 373 S.E.2d 780 (1988).

When a patient's suit against a hospital was based on a physical injury sustained while the patient was in the emergency room, a hospital manager's alteration of an insurance report on the incident did not relate to the tort so as to support a claim for punitive damages under subsection (a) of O.C.G.A. § 51-12-5. McNorrill v. Candler Gen. Hosp., 188 Ga. App. 636, 373 S.E.2d 780, cert. denied, 188 Ga. App. 912, 373 S.E.2d 780 (1988).

- The aggravating circumstances necessary to support an award for punitive damages pursuant to O.C.G.A. § 51-12-5 must arise separately from the evidence proving each tort. Clarke v. Cox, 197 Ga. App. 83, 397 S.E.2d 598 (1990).

To authorize imposition of punitive or exemplary damages, there must be evidence of willful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. Southern Ry. v. O'Bryan, 119 Ga. 147, 45 S.E. 1000 (1903); Collins v. Baker, 51 Ga. App. 669, 181 S.E. 425 (1935); Investment Sec. Corp. v. Cole, 186 Ga. 809, 199 S.E. 126 (1938); Rhodes v. Industrial Fin. Corp., 64 Ga. App. 549, 13 S.E.2d 883 (1941); Hall v. Browning, 195 Ga. 423, 24 S.E.2d 392 (1943); Head v. John Deere Plow Co., 71 Ga. App. 276, 30 S.E.2d 662 (1944); Western Union Tel. Co. v. Nix, 73 Ga. App. 184, 36 S.E.2d 111 (1945); S.S. Kresge Co. v. Carty, 120 Ga. App. 170, 169 S.E.2d 735 (1969); Standard Oil Co. v. Mount Bethel United Methodist Church, 230 Ga. 341, 196 S.E.2d 869 (1973); BLI Constr. Co. v. Debari, 135 Ga. App. 299, 217 S.E.2d 426 (1975); Kaplan v. Sanders, 237 Ga. 132, 227 S.E.2d 38 (1976); Ray Jones, Inc. v. Cowan, 139 Ga. App. 811, 229 S.E.2d 669 (1976); Bonds v. Powl, 140 Ga. App. 140, 230 S.E.2d 133 (1976); Eckert v. Louisville & Nashville Ry., 142 Ga. App. 5, 234 S.E.2d 819 (1977); General Refractories Co. v. Rogers, 240 Ga. 228, 239 S.E.2d 795 (1977); Ballard v. Turner, 147 Ga. App. 584, 249 S.E.2d 637 (1978); Bracewell v. King, 147 Ga. App. 691, 250 S.E.2d 25 (1978); Aretz v. United States, 456 F. Supp. 397 (S.D. Ga. 1978), aff'd, 660 F.2d 531 (5th Cir. 1981); Gunthorpe v. Daniels, 150 Ga. App. 113, 257 S.E.2d 199 (1979); Suber v. Fountain, 151 Ga. App. 283, 259 S.E.2d 685 (1979); Georgia-Carolina Brick & Tile Co. v. Brown, 153 Ga. App. 747, 266 S.E.2d 531 (1980); Gordon v. Ogden, 154 Ga. App. 641, 269 S.E.2d 499 (1980); Morgan v. Hawkins, 155 Ga. App. 836, 273 S.E.2d 221 (1980); Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734 (5th Cir. 1980); Jackson v. Willis, 2 Bankr. 566 (Bankr. M.D. Ga. 1980); Melton v. LaCalamito, 158 Ga. App. 820, 282 S.E.2d 393 (1981); Concrete Constr. Co. v. City of Atlanta, 176 Ga. App. 873, 339 S.E.2d 266 (1985); Rossville Apts. Co. v. Britton, 178 Ga. App. 194, 342 S.E.2d 504 (1986); Cullen v. Novak, 201 Ga. App. 459, 411 S.E.2d 331, cert. denied, 201 Ga. App. 903, 411 S.E.2d 331 (1991); Payne v. Carson, 215 Ga. App. 253, 450 S.E.2d 273 (1994).

Punitive damages may be recovered when a wrongdoer has acted willfully and with gross disregard for the plaintiff's rights. Dyer v. Merry Shipping Co., 650 F.2d 622 (5th Cir. 1981), overruled on other grounds, Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir. 1995).

To be entitled to punitive damages under O.C.G.A. § 51-12-5, the plaintiffs would have to show that the defendants' alleged misrepresentations or omissions constituted an intentional disregard of the rights of another, knowingly or willfully disregarding such rights. Duncan v. Poythress, 515 F. Supp. 327 (N.D. Ga.), aff'd, 657 F.2d 691 (5th Cir. 1981), cert. dismissed, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

Neither direct personal contact nor specific malice between the defendant and the plaintiff is required to support a claim for additional damages under O.C.G.A. § 51-12-5. Bowen v. Waters, 170 Ga. App. 65, 316 S.E.2d 497 (1984), aff'd, 175 Ga. App. 884, 334 S.E.2d 910 (1985).

- Evidence that a defendant was indifferent or unsympathetic to the plaintiff's plight was insufficient to show malice. Community Fed. Sav. & Loan Ass'n v. Foster Developers, Inc., 179 Ga. App. 861, 348 S.E.2d 326 (1986).

If person commits trespass with knowledge that the person is acting without right, exemplary or punitive damages may be awarded. Savannah Elec. & Power Co. v. Horton, 44 Ga. App. 578, 162 S.E. 299 (1932); Collins v. Baker, 51 Ga. App. 669, 181 S.E. 425 (1935); Dalon Contracting Co. v. Artman, 101 Ga. App. 828, 115 S.E.2d 377 (1960).

A willful or conscious or intentional disregard of the interest of the plaintiff is the equivalent of legal malice justifying punitive damages for trespass. Allison v. Hodo, 84 Ga. App. 790, 67 S.E.2d 606 (1951); Kolodkin v. Griffin, 87 Ga. App. 725, 75 S.E.2d 197 (1953).

A reckless, conscious or intentional disregard is equivalent to legal malice justifying punitive damages. Kolodkin v. Griffin, 87 Ga. App. 725, 75 S.E.2d 197 (1953).

Absent willful misconduct, malice, fraud, wantonness or oppression, there can be no recovery of punitive damages. Moon v. Georgia Power Co., 127 Ga. App. 524, 194 S.E.2d 348 (1972); Alliance Transp., Inc. v. Mayer, 165 Ga. App. 344, 301 S.E.2d 290 (1983).

Punitive damages may be awarded when there is evidence of willful misconduct of a defendant. Etheridge v. Kay, 153 Ga. App. 399, 265 S.E.2d 332 (1980).

- The malice required for the recovery of exemplary damages need not amount to ill-will, hatred, or vindictiveness of purpose. It is sufficient if the defendant's acts were wanton or were done with a reckless disregard for or a conscious indifference to the rights of the plaintiff to use and enjoy the plaintiff's property. Bowen v. Waters, 170 Ga. App. 65, 316 S.E.2d 497 (1984), aff'd, 175 Ga. App. 884, 334 S.E.2d 910 (1985).

Punitive damages may be awarded when allegations of petition and evidence justify those damages even though there was no special prayer therefor. Davis v. Macon Tel. Publishing Co., 93 Ga. App. 633, 92 S.E.2d 619 (1956).

- In order for the jury to assess punitive damages, it is not necessary that punitive damages shall be claimed as such and all that need be pled is to set forth a stated amount besides circumstances that may well be considered as an aggravation and constitute punitive damages. Hall v. Browning, 195 Ga. 423, 24 S.E.2d 392 (1943).

A petition setting forth alleged torts, and claiming damages generally in a named amount, states a cause of action for recovery of general damages, nominal damages and punitive damages, as the evidence might show; and is not subject to dismissal as claiming no recoverable damages. Hall v. Browning, 195 Ga. 423, 24 S.E.2d 392 (1943).

When general damages are prayed for and when the facts alleged would authorize the recovery of punitive damages the damages need not be claimed under that name. Bracewell v. King, 147 Ga. App. 691, 250 S.E.2d 25 (1978).

If only special or punitive damages are expressly pled and prayed, recovery is limited to damages thus sought. Hall v. Browning, 195 Ga. 423, 24 S.E.2d 392 (1943).

When no general damages are prayed for, but only equitable relief, there is nothing to support award of aggravated damages. Jones v. Spindel, 239 Ga. 68, 235 S.E.2d 486 (1977).

Jury Charge

Court must instruct jury on various elements of damages claimed.

- When several different elements of damage are claimed, it is error requiring the grant of a new trial for the judge to fail in the judge's charge to the jury to give the jury any rule for estimating the damages claimed; and this is true notwithstanding no written request for such charge is made by the defendant. Southeastern Greyhound Lines v. Hancock, 71 Ga. App. 471, 31 S.E.2d 59 (1944).

- Charge that punitive damages are such as are given to deter future similar occurrences, and also as damages for the wrong committed under the peculiarly provoking circumstances, that is, provoking as far as the plaintiff might be concerned, is a substantial statement of the law as provided in this section. Battle v. Kilcrease, 54 Ga. App. 808, 189 S.E. 573 (1936).

Charge based upon this section should not be given when there is no allegation and no evidence of aggravating circumstances, and the suit is for compensatory damages only. Rozier v. Folsom, 53 Ga. App. 53, 185 S.E. 140 (1936).

When there is no evidence of aggravating circumstances in the act or intention, this section ought not be given in charge. Everett v. Culberson, 215 Ga. 577, 111 S.E.2d 367 (1959); Ray Jones, Inc. v. Cowan, 139 Ga. App. 811, 229 S.E.2d 669 (1976).

- In a suit for personal injuries based on simple negligence in which compensatory damages only were sued for, it was error for the court to give in charge to the jury the provisions of former Code 1933, §§ 105-2002 and 105-2003 (see now O.C.G.A. §§ 51-12-5 and51-12-6), relating to intentional injury, aggravating circumstances, and the worldly circumstances of the parties. Rozier v. Folsom, 53 Ga. App. 53, 185 S.E. 140 (1936).

It is error to charge language of both former Code 1933, §§ 105-2002 and 105-2003 (see now O.C.G.A. §§ 51-12-5 and51-12-6), so as to permit double recovery. Baldwin v. Davis, 188 Ga. 587, 4 S.E.2d 458 (1939).

Instructions which permit recovery for wounded feelings under former Code 1933, §§ 105-2002 and 105-2003 (see now O.C.G.A. §§ 51-12-5 and51-12-6) were improper and were cause for granting a new trial. Universal Credit Co. v. Starrett, 61 Ga. App. 132, 6 S.E.2d 80 (1939).

Charge instructing on punitive damages when the defendant's conduct was unintentional must contain language that the defendant's conduct was with a reckless disregard or conscious indifference to the right of the plaintiff. T.G. & Y. Stores Co. v. Waters, 175 Ga. App. 884, 334 S.E.2d 910 (1985).

- Failure to object that the trial court erred by charging the jury on damages pursuant to O.C.G.A. §§ 51-12-5 and51-12-6 before the jury returned its verdict in an action for wrongful dispossession, trespass, conversion, and theft constituted a waiver of the right to raise the issue on appeal, and there was no substantial error which would require review under the exception set forth in O.C.G.A. § 5-5-24(c). Sanders v. Hughes, 183 Ga. App. 601, 359 S.E.2d 396, cert. denied, 183 Ga. App. 907, 359 S.E.2d 396 (1987).

This section expressly provides for punitive damages but under Georgia law, three things are left for the jury to determine: (1) when punitive damages shall be allowed; (2) the amount of such damages; and (3) the purpose of the award as either to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff. Curtis Publishing Co. v. Butts, 351 F.2d 702 (5th Cir. 1965), aff'd, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967).

There is no maximum or minimum amount of punitive damages prescribed by the law, nor is it measured by earning capacity or expectancy of life. Southeastern Greyhound Lines v. Suits, 55 Ga. App. 371, 190 S.E. 417 (1937).

Only measure for punitive damages for wounded feelings is enlightened conscience of impartial jurors, and the court erred in failing to instruct the jury as to the measure of damages. Head v. John Deere Plow Co., 71 Ga. App. 276, 30 S.E.2d 662 (1944).

The measure of damages, when exemplary or punitive damages are recoverable, as prescribed by law, is to be fixed by the enlightened conscience of an impartial jury. Head v. John Deere Plow Co., 71 Ga. App. 276, 30 S.E.2d 662 (1944).

In an action for wounded feelings the measure of damages must be determined by the enlightened consciences of impartial jurors. Turner v. Joiner, 77 Ga. App. 603, 48 S.E.2d 907 (1948).

The law does not set any standard by which punitive damages can be measured except the enlightened consciences of impartial jurors. Kolodkin v. Griffin, 87 Ga. App. 725, 75 S.E.2d 197 (1953).

Questions concerning the amount of damages to be awarded as punitive damages, are for the enlightened conscience of the jury. Curl v. First Fed. Sav. & Loan Ass'n, 243 Ga. 842, 257 S.E.2d 264 (1979).

- The rule which requires that the amount of punitive damages have some reasonable proportion to the extent of injury refers to those cases awarding exemplary damages for wounded feelings. King v. Towns, 102 Ga. App. 895, 118 S.E.2d 121 (1960); Smith v. Miliken, 247 Ga. 369, 276 S.E.2d 35 (1981).

It is question for jury to determine when such additional damages should be allowed, as well as the amount of such damages. Sikes v. Foster, 74 Ga. App. 350, 39 S.E.2d 585 (1946), rev'd on other grounds, 202 Ga. 122, 42 S.E.2d 441 (1947); Kolodkin v. Griffin, 87 Ga. App. 725, 75 S.E.2d 197 (1953); Townsend & Ghegan Enters. v. W.R. Bean & Son, 117 Ga. App. 109, 159 S.E.2d 776 (1968); Bonds v. Powl, 140 Ga. App. 140, 230 S.E.2d 133 (1976).

Question of punitive damages is one for jury. King v. Towns, 102 Ga. App. 895, 118 S.E.2d 121 (1960); Moon v. Georgia Power Co., 127 Ga. App. 524, 194 S.E.2d 348 (1972); Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734 (5th Cir. 1980).

Whether the aggravating circumstances of the alleged tort warrant the award to the plaintiff of punitive damages is a question for the jury. Kelly v. Georgia Cas. & Sur. Co., 105 Ga. App. 104, 123 S.E.2d 711 (1961); Bonds v. Powl, 140 Ga. App. 140, 230 S.E.2d 133 (1976).

Punitive damages are only to be given if there be circumstances of aggravation. Whether there be such circumstances or not, is a question for the jury, and not the court. Townsend & Ghegan Enters. v. W.R. Bean & Son, 117 Ga. App. 109, 159 S.E.2d 776 (1968).

Whether an additional sum should be awarded the plaintiff, either as compensation for the plaintiff's wounded feelings, or to deter the wrongdoer from repeating the trespass, is solely a matter for jury consideration, not only as to the amount but as to the award itself. Bonds v. Powl, 140 Ga. App. 140, 230 S.E.2d 133 (1976).

The award of exemplary damages is an award in addition to such as may be primarily recovered in a tort action and is a matter of discretion for the jury. Maheia v. Weeks, 144 Ga. App. 199, 240 S.E.2d 752 (1977).

Ordinarily, the question of imposition of punitive damages is for the jury. However, the controlling question is whether there was any evidence to support such an award. Alliance Transp., Inc. v. Mayer, 165 Ga. App. 344, 301 S.E.2d 290 (1983).

Determination of the amount of actual or punitive damages necessary to deter recurrences of fraudulent conduct is rightfully a jury function and will only be disturbed if the determination is blatantly egregious. Mercer v. Woodard, 166 Ga. App. 119, 303 S.E.2d 475 (1983).

Exemplary damages lie within the conscience of jury. When the jury finds aggravating circumstances in the defendant's acts and intentions sufficiently repugnant to justify the award, the appellate court will be reluctant to interfere with the jury's sense of conscience in the plaintiff's behalf. Privitera v. Addison, 190 Ga. App. 102, 378 S.E.2d 312, cert. denied, 190 Ga. App. 102, 378 S.E.2d 312 (1989).

State law controls whether facts warrant submission to jury of the punitive damages question. Gower v. Cohn, 643 F.2d 1146 (5th Cir. 1981).

Jurors may weigh all facts and circumstances in determining whether to award punitive damages. King v. Towns, 102 Ga. App. 895, 118 S.E.2d 121 (1960).

This section does not allow jury to consider the defendant's financial worth in computing damages. Hodges v. Youmans, 129 Ga. App. 481, 200 S.E.2d 157 (1973).

- The trial court should grant the defendant's motion for a directed verdict as to punitive damages when the plaintiffs do not set out a cause of action in tort. Glynn County Fed. Employees Credit Union v. Peagler, 256 Ga. 342, 348 S.E.2d 628 (1986).

- When the trial court decides that there is an issue for the jury as to the defendant's fraud respecting one issue, and the jury decides for the plaintiff on this issue, it is error for the trial court to direct a verdict against the plaintiff as to punitive damages and attorney's fees. Champion v. Martin, 124 Ga. App. 275, 183 S.E.2d 571 (1971).

Applicability to Specific Cases

1. Automobiles

- When fraud and deceit in sale of automobile is proved, aggravating circumstances may authorize imposition of punitive damages, and such circumstances may occur either in act or intention of wrongdoer. Hubacher v. Volkswagen Cent., Inc., 164 Ga. App. 791, 298 S.E.2d 533 (1982).

- Evidence was sufficient to authorize the jury to find that the sum of $8 million was an amount necessary to deter an automobile manufacturer from repeating its conduct, that is, its conscious decision to defer implementation of safety devices in order to protect its profits. Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 319 S.E.2d 470 (1984).

Driving under the influence of alcohol so as to cause personal injuries to another is an aggravating circumstance in the act which would authorize the jury to give punitive damages to deter the wrongdoer from repeating the act. Therefore, evidence of a defendant's guilty pleas to driving under the influence of alcohol before and after the incident in issue is admissible on the question of punitive damages. Moore v. Thompson, 255 Ga. 236, 336 S.E.2d 749 (1985).

- One who knowingly continues to drive a taxicab for long hours after being warned that one is subject to recurring attacks of loss of consciousness due to physical illness, as a result of which it is unsafe for the driver to drive an automobile, may be guilty of such want of care, evidencing conscious indifference to consequences, as to render the driver liable for punitive damages. Jackson v. Co-op Cab Co., 102 Ga. App. 688, 117 S.E.2d 627 (1960).

Fact that the defendant's car may have crossed centerline and struck the plaintiffs' vehicle would not, in the absence of aggravating circumstances, authorize the plaintiff to recover punitive damages. Currie v. Haney, 183 Ga. App. 506, 359 S.E.2d 350, cert. denied, 183 Ga. App. 905, 359 S.E.2d 350 (1987).

- Conduct of a hit and run driver in failing to stop and give the driver's name, etc., and render assistance to the person injured, when taken in connection with all the circumstances, may authorize finding of an entire want of care and conscious indifference to consequences, involving such "aggravating circumstances in the act" as would authorize a recovery by the person injured for punitive damages. Battle v. Kilcrease, 54 Ga. App. 808, 189 S.E. 573 (1936).

Damages allowed the plaintiff for injury to the plaintiff's earning capacity are compensatory and cannot be awarded as "additional damages" allowable under this section. Atlantic Coast Line R.R. v. Ansley, 84 Ga. App. 89, 65 S.E.2d 463 (1951).

- Even if the companies should have known about the supervisor's reputation for sexual harassment, since there was no evidence of an entire want of care on their part which would raise the presumption of a conscious indifference to the consequences, imposition of punitive damages was not warranted. Troutman v. B.C.B. Co., 209 Ga. App. 166, 433 S.E.2d 73 (1993).

- Although the Workers' Compensation Act, O.C.G.A. § 34-9-1 et seq., does not bar an employee from bringing a claim for property damage against an employer, the employee may not recover additional damages for aggravated circumstances when the property damage arose out of the same incident in which the employee sustained personal injury compensable under the Workers' Compensation Act. Superb Carpet Mills, Inc. v. Thomason, 183 Ga. App. 554, 359 S.E.2d 370, cert. denied, 183 Ga. App. 907, 359 S.E.2d 370 (1987).

3. Property

Changing course of stream.

- While the evidence showed that the defendant intentionally changed the course of the stream upon the defendant's land, thereby damaging the defendant's neighbor's land, the evidence was insufficient to show aggravating circumstances, either in the act or in the intention, so as to authorize punitive damages. Costley v. Long, 112 Ga. App. 758, 146 S.E.2d 153 (1965).

- Punitive damages are appropriate for conversion as a tort. Privitera v. Addison, 190 Ga. App. 102, 378 S.E.2d 312, cert. denied, 190 Ga. App. 102, 378 S.E.2d 312 (1989).

- The piling of dirt on the defendant's own property in carrying out a legitimate business activity, not abnormally dangerous when supervised under the authority of the law of this state, without more, would not support an allegation of conscious indifference when a portion is washed down natural drains onto another's property. General Refractories Co. v. Rogers, 240 Ga. 228, 239 S.E.2d 795 (1977).

Exemplary damages are recoverable in actions for conversion. Harrell v. Anderson, 294 F. Supp. 405 (S.D. Ga. 1968).

- The malice required for the recovery of exemplary damages need not amount to ill-will, hatred, or vindictiveness of purpose, but it would be sufficient if the defendants were guilty of wanton or conscious, reckless, or intentional disregard for the rights of the plaintiff in the free use and enjoyment of the plaintiff's land, in its natural state. Kolodkin v. Griffin, 87 Ga. App. 725, 75 S.E.2d 197 (1953).

- One whose means of egress from and ingress to one's property abutting on a public highway is illegally and unnecessarily interfered with by the placing of obstructions in and the plowing up of the portion of such way lying in the highway by another, suffers a special injury and may maintain an action for damages therefore against the wrongdoer. Punitive damages may be recovered when the circumstances are such as to justify the allowance thereof. Barham v. Grant, 185 Ga. 601, 196 S.E. 43 (1937).

Damages for one whose means of egress from and ingress to one's property abutting on a public highway is illegally and unnecessarily interfered with may be the depreciation in market value, if the obstruction is a permanent one, or the damage to business and loss of profits. Punitive damages may be recovered when the circumstances are such as to justify the allowance thereof. Holland v. Shackleford, 220 Ga. 104, 137 S.E.2d 298 (1964).

One who enters upon and injures another's land is not, though a trespasser, liable for punitive damages, when acts were done in good faith and there was nothing in the manner of doing such acts to indicate an intention to wantonly disregard the rights of the true owner. Ray Jones, Inc. v. Cowan, 139 Ga. App. 811, 229 S.E.2d 669 (1976).

Recovery for trespass to personal property is limited to compensation (actual damages) in absence of aggravations, for which exemplary or punitive damages are allowed. The gist of such an action of trespass is the injury done to the possession of the property. Investment Sec. Corp. v. Cole, 57 Ga. App. 97, 194 S.E. 411 (1937), aff'd, 186 Ga. 809, 199 S.E. 126 (1938).

Even though a recovery for trespass may be had for actual damages, exemplary damages will usually not be allowed when the trespass was under a claim of right in good faith as under a mistake as to the ownership of the personalty taken under process, but may be awarded even in such a case if there are circumstances of aggravation. Investment Sec. Corp. v. Cole, 57 Ga. App. 97, 194 S.E. 411 (1937), aff'd, 186 Ga. 809, 199 S.E. 126 (1938).

In a suit for trespass to the plaintiff's personal property, since the evidence tends to show that prior to the levy the plaintiff warned the defendant not to deprive the plaintiff of the possession of the plaintiff's property by levying an attachment thereon which was sued out against an outsider but not the plaintiff, the malice required for the recovery of exemplary damages need not amount to ill will, hatred, or vindictiveness of purpose, it being sufficient if the defendant was guilty of a wanton or even a conscious or intentional disregard of the rights of another, as such disregard is equivalent to legal "malice," justifying punitive damages for trespass. Investment Sec. Corp. v. Cole, 57 Ga. App. 97, 194 S.E. 411 (1937), aff'd, 186 Ga. 809, 199 S.E. 126 (1938).

When the punitive damages at issue here are those growing out of the trespass action which was consolidated for jury trial with the condemnation proceedings in the superior court, the question of damages is one for the jury. Black v. Georgia Power Co., 151 Ga. App. 727, 261 S.E.2d 461 (1979).

- In a nuisance and trespass action against the owner of a former mining site alleging that acidic water had escaped from the site damaging streams that run through the plaintiffs' properties, an award of $15 million was constitutionally excessive and the district court correctly reduced the award to $4.35 million. Johansen v. Combustion Eng'g., Inc., 170 F.3d 1320 (11th Cir. 1999), cert. denied, 528 U.S. 931, 120 S. Ct. 329, 145 L. Ed. 2d 256 (1999).

- In an action for trespass, after the defendant's motion to open its default had been denied and the case proceeded to trial on the issue of compensatory and punitive damages, the trial court correctly refused the defendant permission to question the plaintiff concerning whether the plaintiff knew that an easement had allegedly existed on the affected property and also correctly refused to permit the defendant to attempt to mitigate punitive damages by presenting evidence concerning the alleged existence of such an easement since, although such evidence might have affected the amount of punitive damages assessed, it also bore upon the right of recovery, which had already been established by the factum of the default. Krystal Co. v. Carter, 180 Ga. App. 667, 350 S.E.2d 306 (1986).

- Aggravating circumstances were properly found after the defendant brought criminal property damage charges against the plaintiff prior to verifying any such damage and the defendant's continued insistence upon those charges despite the apparent lack of damage. Branson v. Donaldson, 206 Ga. App. 723, 426 S.E.2d 218 (1992).

- Mortgage companies were not liable for punitive damages to real estate investors whose credit scores allegedly were injured after the companies' failure to timely pay a tax bill triggered the filing of a county tax lien and after the companies erroneously reported having foreclosed a mortgage granted to the investors. The investors adduced no evidence from which a jury could construe that the companies' erroneous handling of these matters was willful or consciously indifferent to the investors' interests, and thus the investors did not satisfy the criteria for an award of punitive damages pursuant to O.C.G.A. § 51-12-5.1(b). Burch v. Chase Manhattan Mortg. Corp., F. Supp. 2d (N.D. Ga. Sept. 15, 2008).

Punitive damages are authorized against manufacturer for each individual plaintiff who contracts asbestosis from exposure to the manufacturer's products. Wammock v. Celotex Corp., 826 F.2d 990 (11th Cir. 1987), but see, Wammock v. Celotex Corp. v. 835 F.2d 818 (11th Cir. 1988).

- When the evidence shows merely that the plaintiff's property was mistakenly mingled with a shipment destined for another state and that when the mistake was discovered, the defendant took steps to return the property to Atlanta, the award of punitive damages will be stricken. Alliance Transp., Inc. v. Mayer, 165 Ga. App. 344, 301 S.E.2d 290 (1983).

- Under evidence showing the perpetuation of a fraudulent scheme which induced the plaintiff, who was illiterate, to purchase stainless steel cookware from the defendant at an amount in excess of its market value, the charge of this section was applicable. King v. Towns, 102 Ga. App. 895, 118 S.E.2d 121 (1960).

- When, at trial, during the precharge conference, the plaintiff elected to proceed on the theory of a violation of the U.C.C., O.C.G.A. §§ 11-9-504 through11-9-507, choosing the damages provided by § 11-9-507 rather than the damages recoverable for conversion, as to the U.C.C. claim, penal damages are not recoverable. Malley Motors, Inc. v. Davis, 183 Ga. App. 599, 359 S.E.2d 394 (1987).

- When the plaintiff had a contract with the defendant (a common carrier), which generated a relation attended with a public duty; and the petition, properly construed, set forth an action for violation of a public duty by the common carrier, the contract being relied on merely as inducement, punitive as well as actual damages are recoverable, when there is evidence to show aggravating circumstances in the act or the intention. Southeastern Greyhound Lines v. Suits, 55 Ga. App. 371, 190 S.E. 417 (1937).

5. Miscellaneous

Conduct occurring during litigation.

- This is no provision for punitive damages arising because of conduct occurring during litigation. Citizens & S. Nat'l Bank v. Bougas, 245 Ga. 412, 265 S.E.2d 562 (1980).

Attorney fees and expenses of litigation are not punitive or vindictive damages. They are recoverable only in cases when other elements of damages are recoverable. Cleary v. Southern Motors of Savannah, Inc., 142 Ga. App. 163, 235 S.E.2d 623 (1977).

Attorney's fees were not usually allowed as an item of damages except in those cases permitted by statute. Such fees were not a part of punitive or vindictive damages, but stand alone and were regulated by former Code 1933, § 20-1404 (see now O.C.G.A. § 13-6-11). Dodd v. Slater, 101 Ga. App. 358, 114 S.E.2d 167 (1960).

Individual damage items, such as punitive damages awarded as additional damages or expenses of litigation, do not provide the requisite support for each other. They are recoverable only in cases when other elements of damages are recoverable. Cleary v. Southern Motors of Savannah, Inc., 142 Ga. App. 163, 235 S.E.2d 623 (1977).

Although punitives were not recoverable under O.C.G.A. § 51-12-5, there was some evidence of bad faith intention behind the developer-defendant's diversion of water-flow, sufficient to allow for recovery of attorney fees as expenses of litigation pursuant to O.C.G.A. § 13-6-11. Ross v. Hagler, 209 Ga. App. 201, 433 S.E.2d 124 (1993).

- In an action for injuries sustained when an apartment floor collapsed, the defendants argued that the mere breach of their duty to repair the apartment would not authorize punitive damages, but the evidence showed that the defendants had been aware for several years of serious problems with the plumbing, not only in the plaintiff's apartment, but in the three contiguous apartments, and the defendants had actually had to replace floors in contiguous apartments following accumulation of water, and were aware that another tenant had fallen through a bathroom floor because of similar leaks. This evidence was sufficient to authorize the jury to find that the defendants' inaction evinced a reckless disregard for or a conscious indifference to consequences, thus constituting aggravating circumstances which permit the award of additional damages under the provisions of O.C.G.A. § 51-12-5, and there was no error in the trial court's charging the jury on these damages. Crow v. Evans, 183 Ga. App. 581, 359 S.E.2d 446 (1987).

- Punitive damages are available not only in suits based on negligence but also increasingly in other types of cases, including those alleging breach of contract or statutory violations. Dyer v. Merry Shipping Co., 650 F.2d 622 (5th Cir. 1981), overruled on other grounds, Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir. 1995).

- When a publisher, with full knowledge of an error in an ad and the ad's falsity and propensity for damage, makes a conscious decision to continue distribution of the false advertising with conscious indifference to the consequences that could befall the advertiser and without any attempt to minimize or diminish the possible adverse effect of its error, the standard for punitive damages is satisfied. Southern Bell Tel. & Tel. Co. v. Coastal Transmission Serv., Inc., 167 Ga. App. 611, 307 S.E.2d 83 (1983).

- In a misappropriation of trade secrets case, punitive damages may be awarded when the acts of the defendant are "calculated," "deliberate," "reprehensible," or committed with the knowledge that the acts are unlawful. Salsbury Labs., Inc. v. Merieux Labs., Inc., 735 F. Supp. 1555 (M.D. Ga. 1989), aff'd, 908 F.2d 706 (11th Cir. 1990).

When a former employee engaged in competition with a former employer in violation of an agreement not to compete, and took the company's marketing strategy manual with the employee when the employee left, there was evidence to indicate that the employee proceeded in wilful disregard of the rights of the employer, which constituted wilful and tortious misconduct authorizing the jury to award punitive damages. Annis v. Tomberlin & Shelnutt Assocs., 195 Ga. App. 27, 392 S.E.2d 717, cert. denied, 195 Ga. App. 27, 392 S.E.2d 717 (1990).

- An action lies in favor of the owner of the fee in a burial lot or the owner of an easement of burial therein to recover for the actual damages to shrubbery and flowers on the lot and for punitive damages if there are aggravating circumstances. West View Corp. v. Alexander, 83 Ga. App. 810, 65 S.E.2d 38 (1951).

The placing of the signs and the posting of the notices on a cemetery lot which were not unsightly, nor of an offensive nature, and amounted to no more than a polite assertion of the rule in reference to work being done on the lot only by permission of the cemetery superintendent, did not amount to desecration of the burial place and were not such aggravating circumstances as would permit additional damages in an action by the owner of the cemetery lot against the cemetery company for the alleged tort of removing shrubs and flowers and leveling graves. Goodwin v. Candace, Inc., 92 Ga. App. 438, 88 S.E.2d 723 (1955).

- When the record discloses that the defendant knew the defendant's dog had a reputation in the community for biting people and the County Health Department had issued orders to quarantine the defendant's dog, but the defendant continued to allow the dog to roam at large, such evidence is sufficient to allow a jury to determine that aggravating circumstances existed and that exemplary damages are authorized. Parsons v. Ponder, 161 Ga. App. 723, 288 S.E.2d 751 (1982).

- Since the plaintiffs had amended their complaint to include a claim for fraud, but it was not carried forward into the pretrial order, nor was the latter ever amended, and furthermore, the charge to the jury did not include the elements of fraud, there was no foundation for the imposition of punitive damages, and the charge that such damages could be awarded was erroneous as no tort theory was submitted to the jury. Malley Motors, Inc. v. Davis, 183 Ga. App. 599, 359 S.E.2d 394 (1987).

Malice, necessary to support award of punitive damages, is inferred by law from character of defamation when there is an absence of lawful excuse or the absence of a privilege. Hood v. Dun & Bradstreet, Inc., 486 F.2d 25 (5th Cir. 1973), cert. denied, 415 U.S. 985, 94 S. Ct. 1580, 39 L. Ed. 2d 882 (1974).

- In an action for malicious prosecution, the plaintiff is not restricted to actual damages but may recover such damages as are authorized under all the circumstances in the case. Melton v. LaCalamito, 158 Ga. App. 820, 282 S.E.2d 393 (1981).

- In a slander case, when no special damages were prayed for, and former Code 1933, § 105-2003 (see now O.C.G.A. § 51-12-6) was charged, to charge that part of former Code 1933, § 105-2002 (see now O.C.G.A. § 51-12-5) which allowed, in a case when there are aggravating circumstances in the commission of the tort, either in the act or the intention, additional damages "as compensation for the wounded feelings of the plaintiff," was erroneous, as allowing double compensation for the same injury, though it was permissible to give that part of former Code 1933, § 105-2002 which allowed additional damages for the purpose of deterring the wrongdoer from a similar trespass. Franklin v. Evans, 55 Ga. App. 177, 189 S.E. 722 (1937).

- In action against individual members of unincorporated association for conspiracy to wrongfully expel the plaintiff, allegations of malice and bad faith were sufficient as a matter of pleading to authorize a claim for punitive damages. Walker v. Grand Int'l Bhd. of Locomotive Eng'rs, 186 Ga. 811, 199 S.E. 146 (1938).

- Merely ordering the plaintiff not to do an act which the plaintiff has a legal right to do, without more, amounts to nothing, and proof of that fact neither serves as the basis of an action or as the aggravation of any tort a petition undertakes to allege. Goodwin v. Candace, Inc., 92 Ga. App. 438, 88 S.E.2d 723 (1955).

Perpetration of fraud is one specific reason for allowance of punitive damages. Champion v. Martin, 124 Ga. App. 275, 183 S.E.2d 571 (1971).

Punitive damages are permitted in Georgia cases involving fraud. Shingleton v. Armor Velvet Corp., 621 F.2d 180 (5th Cir. 1980).

Imposition of punitive damages in an action for fraudulent misrepresentation is a jury question. Shingleton v. Armor Velvet Corp., 621 F.2d 180 (5th Cir. 1980).

- Insulting words or abusive language used either publicly or privately to a person while under illegal restraint, by the person restraining the other, which wounds the feelings and sensibilities of the person held or which exposes one to mortification and embarrassment before the public, may be considered by a jury in aggravation of damages arising out of the illegal restraint of that person's liberty. Turney v. Rhodes, 42 Ga. App. 104, 155 S.E. 112 (1930).

- When a pending action against a constituent corporation is for alleged libel in which additional damages are sought to deter the wrongdoer from repeating the trespass, the constituent corporation having been, prior to the consolidation, engaged in the newspaper publishing business, and when the resulting corporation is created for the same purpose, the latter is the wrongdoer within the meaning of this section and is in a position to repeat the trespass. Atlanta Newspapers, Inc. v. Doyal, 84 Ga. App. 122, 65 S.E.2d 432 (1951).

Mere nonperformance of duty, even though it be one required by law, will not authorize recovery of punitive damages. Kaplan v. Sanders, 237 Ga. 132, 227 S.E.2d 38 (1976).

- Georgia rule will not hold a telegraph company liable for punitive damages for gross negligence in making a delivery of telegrams. Western Union Tel. Co. v. Nix, 73 Ga. App. 184, 36 S.E.2d 111 (1945).

Mere negligence on the part of the defendant in failing to discover the error made in delivering the plaintiff's photograph for publication in the advertisement instead of that of the performer who was actually appearing, would not justify an award, for mere negligence can never amount to such aggravating circumstances. Cabaniss v. Hipsley, 114 Ga. App. 367, 151 S.E.2d 496 (1966).

Punitive damages are recoverable in trover action. Sisk v. Carney, 121 Ga. App. 560, 174 S.E.2d 456 (1970).

- A $5,000,000 punitive damages award to the owner of a bulldozer which was destroyed when it hit an improperly marked underground petroleum pipeline was excessive, since: (1) any negligence present was passive; (2) there was no bodily injury to the plaintiff and the award did not bear a rational relationship to the actual damages award; and (3) there was no rational relationship between the offense and the punishment in that the punitive damage award was 100 times the property damage award. Colonial Pipeline Co. v. Brown, 258 Ga. 115, 365 S.E.2d 827, appeal dismissed, 488 U.S. 805, 109 S. Ct. 36, 102 L. Ed. 2d 15 (1988).

- When the attorney knew, or had reasonable grounds for believing, that property attached and afterwards sold under the attachment after judgment in the case against the debtor, did not belong to the debtor, but the debtor's wife, the attorney was chargeable with notice of the wife's title, and notice to the attorney would be notice to the attorney's client, the defendant company; in such case the client may be liable in an action by the wife against the client for the actual damages sustained by her as a consequence of the levy and subsequent sale and may be subject also to exemplary or punitive damages, if, either in the act or the intention, the tort was attended with circumstances of aggravation. Atlantic Co. v. Farris, 62 Ga. App. 212, 8 S.E.2d 665 (1940).

It was not harmful error in a suit for malicious trespass (by virtue of a levy under an execution against another) in charging to the jury the language of former Code 1933, § 105-808 (see now O.C.G.A. § 51-7-47) that "the recovery shall not be confined to the actual damage but shall be regulated by the circumstances of each case," although that section relates to cases of malicious prosecution, since the rule as there generally stated is substantially similar to that of former Code 1933, § 105-2002 (see now O.C.G.A. § 51-12-5), relating to exemplary damages in cases of aggravating circumstances, which was applicable to the case, and which the judge also charged. Baldwin v. Davis, 188 Ga. 587, 4 S.E.2d 458 (1939).

- If the defendant caused the seizure of the plaintiff's property, honestly believing that it belonged to the defendant in attachment, and there was nothing in the manner of the seizure to indicate a wanton disregard of the rights of the true owner, any recovery by the plaintiff as such owner should be limited to actual damages. Investment Sec. Corp. v. Cole, 186 Ga. 809, 199 S.E. 126 (1938).

- Punitive damages are not available in a wrongful death action. Truelove v. Wilson, 159 Ga. App. 906, 285 S.E.2d 556 (1981).

Section applies to survival actions only and not to wrongful death actions. Berman v. United States, 572 F. Supp. 1486 (N.D. Ga. 1983).

- The wrong complained of (knowingly, wrongfully dispossessing a tenant) being a willful and malicious tort, punitive damages for humiliation and embarrassment as a result of the alleged tortious acts are recoverable. Yopp v. Johnson, 51 Ga. App. 925, 181 S.E. 596 (1935).

Court was authorized to find that removing the plaintiff's furniture into the yard instead of into some protective place of storage aggravated the wrongful ouster, regardless of the manner in which the furniture was removed, and was authorized to award additional damages either to deter the wrongdoer or as compensation for the plaintiff's wounded feelings. Allison v. Hodo, 84 Ga. App. 790, 67 S.E.2d 606 (1951).

Jury is authorized to infer that the tortious acts of the landlord, in causing the tenant's eviction and the damage to the tenant's property, were attended with aggravating circumstances, and is authorized to find a sum in punitive damages, or damages for compensation for the wounded feelings of the tenant, when the landlord, on the night the tenant discovered the trespass and found the tenant's furniture moved out of the tenant's dwelling and exposed to the elements, slammed the door in the tenant's face, refusing to discuss the matter with the tenant or make any effort to protect the tenant's property from further damage. Johnson v. Howard, 92 Ga. App. 96, 88 S.E.2d 217 (1955).

RESEARCH REFERENCES

Am. Jur. 2d.

- 22 Am. Jur. 2d, Damages, §§ 659 et seq., 806, 807.

- 25 C.J.S., Damages, § 182 et seq.

- Punitive or exemplary damages for assault, 16 A.L.R. 771; 123 A.L.R. 1115.

Liability of druggist for punitive damages, 31 A.L.R. 1362.

Actual damages as a necessary predicate of punitive or exemplary damages, 33 A.L.R. 384; 17 A.L.R.2d 527.

Liability of officer for exemplary or punitive damages in action for false imprisonment, 49 A.L.R. 1386.

Constitutionality of statute permitting punitive damages for personal injury or death, 51 A.L.R. 1379.

Liability of surety on bond of law enforcement officer for punitive or exemplary damages, 64 A.L.R. 934.

Liability of personal representative or receiver of tort-feasor, for punitive damages for which latter would have been liable, 65 A.L.R. 1049.

Excessive speed, not the proximate cause of automobile accident, but which aggravates its consequences, as affecting extent of liability, 66 A.L.R. 1134.

Rule that release of one tort-feasor releases others, as applicable to cause of action which is punitive rather than compensatory in its nature, 85 A.L.R. 1164.

Liability of telegraph company for punitive damages for wrongful or negligent acts of employees as regards messages, 89 A.L.R. 356.

Exemplary or punitive damages as recoverable in action for death, 94 A.L.R. 384.

Test or criterion of gross negligence or other misconduct that will support recovery of exemplary damages for bodily injury or death unintentionally inflicted, 98 A.L.R. 267.

Liability for punitive or exemplary damages or statutory penalty of one intentionally or negligently starting fire which caused an injury to person or property, 104 A.L.R. 412.

Failure to stop or other conduct after automobile accident as supporting claim for exemplary damages, 156 A.L.R. 1115.

Punitive or exemplary damages in action in tort based on fraudulent sale, 165 A.L.R. 614.

Punitive damages for wrongful ejection or rejection of guest from hotel or restaurant, 14 A.L.R.2d 715.

Civil liability for insulting or abusive language not amounting to defamation, 15 A.L.R.2d 108.

Recovery by contractor or artisan, suing for breach of warranty, of damage for loss of good will occasioned by use in his business of unfit materials, 28 A.L.R.2d 591.

Punitive or exemplary damages for conversion of personalty by one other than chattel mortgagee or conditional seller, 54 A.L.R.2d 1361.

Right to punitive or exemplary damages in action for personal injury or death caused by operation of automobile, 62 A.L.R.2d 813.

Appellate court's power to order remittitur of portion of actual damages awarded at trial while sustaining trial award of punitive damages, 97 A.L.R.2d 1145.

Admissibility on defendant's behalf, as matter in mitigation of punitive damages, of evidence to his lack of financial resources, 7 A.L.R.3d 1138.

Financial worth of one or more of several joint defendants as proper matter for consideration in fixing punitive damages, 9 A.L.R.3d 692.

Tenant's right to damages for landlord's breach of tenant's option to purchase, 17 A.L.R.3d 976.

Apportionment of punitive or exemplary damages as between joint tortfeasors, 20 A.L.R.3d 666.

Spouse's or parent's right to recover punitive damages in connection with recovery of damages for medical expenses or loss of services or consortium arising from personal injury to other spouse or to child, 25 A.L.R.3d 1416.

Attorneys' fees or other expenses of litigation as element in measuring exemplary or punitive damages, 30 A.L.R.3d 1443.

Punitive damages in actions based on nuisance, 31 A.L.R.3d 1346.

Allowance of punitive damages for invasion of common-law rights in literary property, 40 A.L.R.3d 248.

Damages for wrongful termination of automobile dealership contracts, 54 A.L.R.3d 324.

What constitutes malice sufficient to justify an award of punitive damages in action for wrongful attachment or garnishment, 61 A.L.R.3d 984.

Recoverability of punitive damages in action by insured against liability insurer for failure to settle claim against insured, 85 A.L.R.3d 1211.

Defendant's state of mind necessary or sufficient to warrant award of punitive damages in action for malicious prosecution, 94 A.L.R.3d 791.

Assault: criminal liability as barring or mitigating recovery of punitive damages, 98 A.L.R.3d 870.

Recovery of exemplary or punitive damages from municipal corporation, 1 A.L.R.4th 448.

Liability of surety on private bond for punitive damages, 2 A.L.R.4th 1254.

Propriety of awarding punitive damages to separate plaintiffs bringing successive actions arising out of common incident or circumstances against common defendant or defendants ("one bite" or "first comer" doctrine), 11 A.L.R.4th 1261.

Allowance of punitive damages in products liability case, 13 A.L.R.4th 52.

Excessiveness or adequacy of damages awarded for injuries to, or conditions induced in, sexual organs and processes, 13 A.L.R.4th 183.

Excessiveness or adequacy of damages awarded for injuries to legs and feet, 13 A.L.R.4th 212.

Liability insurance coverage as extending to liability for punitive or exemplary damages, 16 A.L.R.4th 11.

Effect of plaintiff's comparative negligence in reducing punitive damages recoverable, 27 A.L.R.4th 318.

Claim for punitive damages in tort action as surviving death of tortfeasor or person wronged, 30 A.L.R.4th 707.

Necessity of determination or showing of liability for punitive damages before discovery or reception of evidence of defendant's wealth, 32 A.L.R.4th 432.

Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases, 35 A.L.R.4th 441.

Evidence of defendant's rehabilitation or reformation as relevant on issue of punitive damages, 39 A.L.R.4th 1122.

Sufficiency of showing of actual damages to support award of punitive damages - modern cases, 40 A.L.R.4th 11.

Discovery of defendant's sales, earnings, or profits on issue of punitive damages in tort action, 54 A.L.R.4th 998.

Punitive damages as within coverage of uninsured or underinsured motorist insurance, 54 A.L.R.4th 1186.

Punitive damages: power of equity court to award, 58 A.L.R.4th 844.

Standard of proof as to conduct underlying punitive damage awards - modern status, 58 A.L.R.4th 878.

Plaintiff's rights to punitive or multiple damages when cause of action renders both available, 2 A.L.R.5th 449.

Right to prejudgment interest on punitive or multiple damages awards, 9 A.L.R.5th 63.

Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases, 12 A.L.R.5th 195.

Intoxication of automobile driver as basis for awarding punitive damages, 33 A.L.R.5th 303.

Allowance of punitive damages in medical malpractice action, 35 A.L.R.5th 145.

Damages for wrongful termination of franchise other than automobile dealership contracts, 40 A.L.R.5th 57.

Products liability: cement and concrete, 60 A.L.R.5th 413.