Clarke Communications, Inc. v. Cotton., 207 Ga. App. 883, 429 S.E.2d 291 (1993)

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Lokey & Bowden, Peter K. Kintz, Totsy Nichols, for appellant.

While under the influence of alcohol, appellant-defendant Robert Clarke crashed a vehicle that was owned by appellant-defendant Clarke Communications, Inc. into a vehicle that was being operated by appellee-plaintiff. Appellee brought suit, seeking to recover for the injuries that he sustained in the collision. The case was tried before a jury and a verdict awarding appellee compensatory and punitive damages was returned. The trial court entered judgment on the jury's verdict and appellants filed motions for new trial. When their motions for new trial were denied, appellants filed separate notices of appeal but identical enumerations of error. The two appeals are hereby consolidated for disposition in this single opinion.

1. Appellants sought a new trial as to punitive damages, on the ground that the jury's award of those damages was excessive. The trial court's denial of appellants' motion for new trial as to this issue is enumerated as error.

Appellants introduced evidence in mitigation of liability for punitive damages. Compare Cherry v. McCall, 203 Ga. App. 801, 804 (4) (418 SE2d 604) (1992). "That this award appears to bear no rational relationship to the extent of [appellee's] injury is of no consequence. '(Punitive damages) are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.' [Cit.] The concept of proportionality as a legal limitation on the amount of punitive damages applies, in Georgia, only when such damages are given to compensate for wounded feelings. A deterrence award is based on factors, for the most part, unrelated to the injury to any particular victim, and is limited only by the collective conscience of the jury. [Cits.]" (Emphasis in original.) Hospital Auth. of Gwinnett County v. Jones, 259 Ga. 759, 762 (2) (386 SE2d 120) (1989), judgment reinstated on remand, 261 Ga. 613 (409 SE2d 501) (1991).

"As a general rule, the size of the award for damages in a case such as this is left to the enlightened conscience of impartial jurors, subject to approval of the trial court. [Cit.] The appellate court will not disturb the award ' "absent an award so excessive or inadequate as to shock the judicial conscience." ' [Cits.]" Davis v. Glaze, 182 Ga. App. 18, 23 (13) (354 SE2d 845) (1987). "In the case before us, [appellants] moved for a new trial and specifically requested the trial court to review the punitive damages awarded. The trial court declined to set the award aside. We have reviewed the evidence presented in this case and hold, under the circumstances presented, the trial court did not abuse its discretion in refusing to overrule the jury's punitive damage award." Hospital Auth. of Gwinnett County v. Jones, 259 Ga., supra at 766 (5).

2. In its charge on punitive damages, the trial court quoted the applicable language of OCGA 51-12-5.1 (b), to the effect that such damages could be awarded only if it was "proven by clear and convincing evidence that [appellants'] actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences." Appellants had submitted requests to charge which purported to explicate the concept of "clear and convincing evidence." The trial court's failure to give these requested charges is enumerated as error.

It is the concept of "clear and convincing evidence" as enuncIated in Santosky v. Kramer, 455 U. S. 745 (102 SC 1388, 71 LE2d 599) (1982) that is applicable in Georgia. See Blackburn v. Blackburn, 194 Ga. App. 287, 289 (390 SE2d 234) (1989). However, none of appellants' requests also sets forth the correct principle that "clear and convincing evidence" was a lesser standard of proof than that of proof beyond a reasonable doubt. Indeed, appellants requested that the jury be instructed that "clear and convincing evidence" "is the same as proof to a reasonable certainty." This is an erroneous statement of the law, since a jury instruction that "the minds of the jury must be satisfied to a reasonable certainty is equivalent to an instruction that they must be satisfied beyond a reasonable doubt. [Cits.]" (Emphasis supplied.) Hattaway v. Dickens, 84 Ga. App. 316, 319 (2) (66 SE2d 345) (1951).

Jones, Cork & Miller, John T. Mitchell, Jr., Brandon A. Oren, Thomas W. Joyce, for appellee.

1993

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