Opinion
39973.
DECIDED APRIL 15, 1963.
Action for damages. Columbia Superior Court. Before Judge Anderson.
Fulcher, Fulcher, Hagler Harper, Gould B. Hagler, for plaintiffs in error.
Randall Evans, Jr., contra.
There being no affirmative evidence of facts showing wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care on the part of the defendants which would raise the presumption of a conscious indifference to consequences, the award of punitive damages was unauthorized.
DECIDED APRIL 15, 1963.
This was a suit brought by Byron B. Mangum against the defendants, Harry W. Mills and Mrs. Edna Green Mills, alleging the following: that the defendant, Harry W. Mills, owned a Plymouth automobile which occupied the status of a family purpose car; that on June 19, 1958, the plaintiff parked his car, a 1958 Ford automobile, on Washington Road in Richmond County, Georgia, on the south side thereof, in a proper parking place next to the curb; that at approximately 12 noon on said date, the defendant, Mrs. Edna Green Mills, was driving the aforesaid Plymouth automobile east on the said Washington Road "and although said road was under construction and the greatest speed at which an automobile could be driven thereon in safety was 35 miles per hour, she was operating said car at a rate of speed in excess of 45 miles per hour"; that because of the excessive speed, the Plymouth automobile began to skid and to spin around and made two complete turns in the road, during the course of which, it struck plaintiff's automobile; that the defendant's conduct was the result of her own gross carelessness and wanton negligence; that plaintiff's automobile was valued at $3,224.46 at the time of the accident and was immediately depreciated as a result of the collision to the extent of $1,436.76; that the proximate cause of the collision and of the damages was the grossly negligent and wanton conduct of the defendant, Mrs. Edna Green Mills; that because of defendant's negligence, plaintiff is entitled to $1,436.76 as damages to his automobile, $64.14 representing interest from June 19, 1958, through February 17, 1959, at seven percent per annum, and $1,714.00 as punitive damages because of the "grossly negligence and wanton conduct of defendants under the circumstances, and to deter them from repeating said conduct whereby others might be damaged, injured or killed." The defendants, by their answer admitted the allegation that the Plymouth automobile driven by Mrs. Edna Green Mills was a family purpose car but denied all of the allegations of negligence and wanton conduct.
The plaintiff's testimony showed that he parked his car heading east towards Augusta on the right-hand side of the said Washington Road, immediately adjacent to the curb; that Washington Road at that point was six lanes in width, the outside lanes being each ten feet in width and the four inside lanes being each twelve feet in width; that at the time the accident occurred, Washington Road was under construction and that part of the paving had been put down; that there was a barricade and warning signs at the beginning and ending of the construction on Washington Road, and that a barricade and signs were erected at the intersection of East Vineland and Washington Road; that there was a watchman operating at the barricade at the intersection of East Vineland and Washington Road whose duty was to flag traffic; that at the time the subject accident occurred the plaintiff was in the construction field office at Lake Olmstead; that he did not see the wreck occur but that he came back to his car after the wreck was over and saw Mrs. Edna Mills who stated to him "that she sure was sorry it happened, it was her fault but she had insurance to cover it and would take care of it, that her car skidded and she applied the brakes and lost control of it"; that from the evidence at the scene of the collision, Mrs. Edna Mills spun around twice and hit his automobile with the back end of her car between the two doors, knocking it up on the curb. On cross-examination the plaintiff stated that the construction crews were "tacking" the road surface by spreading asphalt in liquid form over the right of way and that the asphalt could be slippery to some extent.
Donald Henry McWee, a witness for the plaintiff, testified that in June of 1958 he was employed as a flagman to slow traffic going east on Washington Road towards Augusta; that he flagged each and every car to slow down as it passed him; that the two inner lanes had pavement on them, but that the two or three lanes to the right of the center line didn't have anything but dirt on them; that "prime" had been shot on the two center lanes; that all cars traveling east on Washington Road would have had to pass him, and that he flagged every car that passed him that day, but that he did not recall whether or not the automobile of the defendants slowed down when it came by him. On cross-examination, he testified that he was standing at the intersection of Washington Road and East Vineland, a couple of hundred feet from where the plaintiff's car was parked; that the truck had come through this particular section of road spreading "tack" and was turning around at Lake Drive, about 200 feet past the plaintiff's automobile, and that the defendant's automobile slipped and spun around on the slick asphalt.
W. E. Evans, a witness for the defendant, testified that he was standing in the doorway of a service station on the corner of Woodbine where it intersects Washington Road and saw a "tack" truck go by spraying tar over the surface of Washington Road; that shortly thereafter he saw the defendants' car "driving about 20 or 30 miles an hour"; that Mrs. Edna Green Mills apparently applied the brakes and her car "spun kind of clockwise" and the rear end collided with the plaintiff's car which was parked at the curb; that the surface of the road was very slick and that he did not notice any signs or anything restricting travel on the portion of the highway where the accident occurred. On cross-examination he testified that the tacking truck had turned around and was headed back towards the place where he was standing approximately 100 or 150 yards away; that the truck was on the opposite side of the road from the defendants' car, and that a collision was not imminent between the two vehicles; that the car driven by the defendant, Mrs. Edna Mills, was traveling between 20 and 30 miles per hour. On redirect he stated that the defendants' car was "traveling around 25 miles an hour."
The jury returned a verdict in favor of the plaintiff in the amount of $937.50 for damages to the car, plus interest on said amount, and $500 as punitive damages. The defendants' amended motion for new trial was denied, and the exception is to that judgment.
The general grounds of the motion for new trial have been abandoned, it being the sole contention of the defendants, as set forth in the special ground of the amended motion, that the verdict for the plaintiff was excessive in that the evidence did not authorize an award of punitive damages.
With this contention we must agree. To authorize the imposition of punitive or exemplary damages there must be affirmative evidence of facts showing "wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences." Co-op Cab Co. v. Arnold, 106 Ga. App. 160, 163 ( 126 S.E.2d 689). "If this be not the law, then practically every case of negligent injury can be made the vehicle of submitting to the jury the question of wilfulness and wantonness, by merely using adjectives in describing the character of the negligence." Southern R. Co. v. Davis, 132 Ga. 812, 819 ( 65 S.E. 131). Negligence, although gross, will not alone authorize the recovery of punitive damages. Southern R. Co. v. O'Bryan, 119 Ga. 147 ( 45 S.E. 1000).
While the evidence in this case was sufficient to authorize the jury to find that Mrs. Mills was negligent in allowing her automobile to skid into the plaintiff's parked automobile and damage the same, there was no affirmative evidence of facts or circumstances which would authorize the finding that she intentionally disregarded any duty owed the plaintiff or acted with such want of care as would amount to a conscious indifference to the consequences of such acts. Therefore, the award of punitive damages was error.
The verdict for actual damages and interest not being contested by the defendants, however, the judgment will be affirmed on condition that the sum of $500, awarded as punitive damages, be written off. Otherwise, the judgment will be reversed. Since the provision herein for the writing off of punitive damages amounts to a substantial modification of the judgment of the trial court, the costs of bringing the case to this court are taxed against the defendant in error. Royal Ins. Co. v. Cohen, 105 Ga. App. 746, 748 (6) ( 125 S.E.2d 709).
Judgment affirmed on condition. Nichols, P. J., and Frankum, J., concur.