L. B. Price Mercantile Co. v. Adams

Sutton, J.,

dissenting. This was a very close case, and it is extremely doubtful whether the plaintiff was entitled to recover any sum. Under the circumstances and the evidence as presented, the following charge of the court, “In every tort there may be aggravating circumstances, either in the act or the intention; and if the jury find there were such aggravating circumstances, they may give additional damages, either to deter the wrong-doer from repeating the trespass, or as compensation for the wounded feelings of the plaintiff, or both,” was error, and I think that the exception pf the plaintiff in error to this charge, as contained in ground 7 of the motion for new trial, “that the same was contrary to law and misleading to the jury, in that it was calculated to lead the jury to believe that they might assess punitive damages, and, in addition thereto, to find further damages if they found there were aggravating circumstances either in the act or the intention; in other words, that they were authorized to find double damages,” is sufficient as an exception to such charge. The judge told the jury that they might give punitive or exemplary damages, as additional damages, either to deter the wrong-doer from repeating the trespass, or as compensation for wounded feelings, or both. The Code, § 105-2002, does not authorize a jury to give exemplary damages for both purposes in the same suit. The Supreme Court, in Johnson v. Morris, 158 Ga. 403 (123 S. E. 707), held: “In a tort, accompanied with aggravating circumstances, the jury may give additional damages, either to deter the wrong-doer from repeating the trespass, or as compensation for the wounded feelings of thé plaintiff, but not to punish the defendant, nor for both of the above-named purposes.” In the view that I take of this case, I think the charge above referred to was clearly error, and that the judgment should be reversed.