dissenting.
I respectfully dissent to the reversal, which is based on the trial court’s failure to give curative instructions after objection to the mention of punishment in the argument of counsel for the party asserting the Yost claim.
In the opening part of the closing argument, counsel had focused on the behavior of plaintiff in bringing what was described as an unjustifiable lawsuit and asked the jury “to award [Mrs. Fuller] damages for having to put up with Mrs. Carlin since 1983; for having to come into court and defend herself when [Mrs. Carlin] had no claim to any of the areas that she asserted a claim to.”
The plaintiff Carlin’s counsel argued. He told the jury that “it’s up to you to decide whether discipline is needed against one or the discipline is needed against both or whether both should have learned from this experience and need to go away from here learning from that experience and having gained enough knowledge in this case, if nowhere else, to know that it does not pay to misunderstand one another, to bicker with one another, that you ought to have it clear up front and understood. . . . The judge will tell you what the law is as it applies to the case, but then you will apply the law to the facts. . . . [Mrs. Fuller’s] coming into this court . . . saying, hey, *57look, this woman over here’s been bad to me. She — She’s been saying bad things about me or she’s giving me a hard time and I don’t like it and I want you to punish her. I want you to really punish her bad. That’s what they’re saying, in effect. Well, before you decide to punish a child you’re going to want to determine, hey, did that child really do something that bad that needs — you know, that I’m going to need to beat ’em for it, that I’m going to need to ground ’em for, or I’m going to need to do anything other than give them a talking to, or is the one doing the complaining the one we need to discipline or show them that that’s not the right thing to do and how do you do it. I can’t tell you how to do it. I mean, I’m just trying to give you an idea of kind of what you’re looking at. . . . Now, are we (the jury) going to spank one of ya’ll (the parties) or are we going to punish one of ya’ll in some way because of this misunderstanding that apparently was not malicious or intentional, but it happened, or are we going to hope that you’ve got the good sense to leave this thing alone? That’s what we’re (counterdefendant) asking you to do, is to let these folks be adults. . . . They’re (counterclaimant) asking for you all to really throw it to Mrs. Carlin. Two children had a misunderstanding on the playground and they want you to go out and beat the daylights out of one of them. If you think that’s the fair thing to do, it’s your decision.”
After that argument, in which the idea of punishment was repeatedly mentioned, the Yost claimant’s other counsel closed the argument. He dwelt at length and heavily on actions of plaintiff Carlin in bringing the lawsuit and on the suffering of the elderly Mrs. Fuller. In rebuttal to the argument of Mrs. Carlin’s counsel, he pointed to a portion of her complaint and said: “You talk about children fighting back and forth and children need spanking. That one allegation deserves Mrs. Carlin a good spanking.” No objection was made.
In alluding to Mrs. Carlin’s “worldly circumstances” and experience in lawsuits, counsel argued: “A million dollar verdict against this lady isn’t going to hurt her.” Because of what she did, “She needs to be punished.” No objection was made to. either statement.
In winding up, counsel focused on the harm done to Mrs. Fuller and concluded that “[Mrs. Carlin] needs to be punished and penalized so that she won’t ever think about doing it again.” It was then that counterdefendant’s counsel objected to argument about penalties, stating that “he’s not asked for that in the case and I think that the court might need to address that with the jury.” The court overruled the objection and proceeded to charge the jury.
In the instructions, the court fully charged on the elements of a Yost claim and explained that “Mental suffering occurs when a person has suffered injury by the conduct of another which is willful or wanton and reckless disregard of the consequences of that conduct.” *58The court made it clear that the only damages sought for bringing what Mrs. Fuller claimed was a lawsuit “without any substantial justification” were damages for the injury “to the peace, happiness or feelings of Mrs. Fuller.” The court explained that “damages are given as pay or compensation for injuries done . . . fair to both parties.”
The court instructed that the measure of damages for this described injury was the jury’s enlightened conscience, and that it should consider “the worldly circumstances of the parties, the amount of bad faith in the transaction, and all of the attendant facts about the case.” It concluded on the subject of damages by stating: “After you do that then you would fix such sum as you think would be reasonable, fair and just in your enlightened conscience.”
The pleadings went out with the jury, and there is no mention whatsoever of punitive damages in the counterclaim. Instead, it asks for damages for what the counterclaimant has suffered.
In this setting, reversal is not warranted. The following reasons mandate affirmance:
1. The subject of punishment was brought up by the party who now complains about it. Her complaint is vacuous. If there was any confusion in the jurors’ minds, she initiated it. Price v. Hitchcock, 174 Ga. App. 606, 607 (2) (330 SE2d 807) (1985); Pegg v. State, 183 Ga. App. 668 (2) (359 SE2d 678) (1987).
2. What appellant specifically complains about was simply a response to what appellant had argued, a use of the same metaphor. No harm ensued. Smith v. Smith, 125 Ga. App. 257, 258 (4) (187 SE2d 330) (1972).
3. When the objection was made, it was too late. Argument of the very same nature had been made earlier, without objection, and the repetition was merely cumulative. Steverson v. Hosp. Auth. of Ware County, 129 Ga. App. 510, 514 (2) (199 SE2d 881) (1973).
4. The tort known as a Yost claim is by its very nature punitive. It allows a person to be punished by the imposition of monetary damages of some species or another for bringing a frivolous lawsuit. It is a sanction against abuse of the civil court system. Thus to talk of “punishment” in this broad sense is not out of line even when the sole injury claimed is to the peace, happiness, or feelings of the claimant under OCGA § 51-12-6.
5. Mrs. Fuller’s counterclaim, her argument, and most importantly here, the court’s charge, made it abundantly clear to the jury that the damages, if any, were to be within the confines of that Code section.
*59Decided May 18, 1990 Rehearing denied June 21, 1990 — Cert, applied for. Jones, Brown & Brennan, Taylor W. Jones, Myles E. Eastwood, Sylvester & Associates, Chuck Sylvester, for appellant. Smith & Harrington, Will Ed Smith, Harrison, Harrison & Llop, Milton Harrison, Rita J. Llop, for appellee.