(concurring in part and dissenting in part):
I agree with the able opinion of the majority as to affirmance of all awards made by the jury in this case except those for (1) Punitive Damages in the sum of $10,000 and (2) Attorney’s Fees equal to 50 per cent of all damages (i. e., the sum of $21,929.20 as attorney’s fees) awarded by the jury. As to these, I respectfully dissent.1
Punitive Damages
Georgia law authorizes the imposition of punitive or exemplary damages where there is 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. Mills v. Mangum, 107 Ga. App. 614, 131 S.E.2d 67, 69 (1963); Central of Georgia Ry. Co. v. Sowell, 3 Ga.App. 142, 59 S.E. 323 (1907).2 Even gross negligence will not alone authorize the recovery of punitive damages. Southern Ry. Co. v. O’Bryan, 119 Ga. 147, 45 S.E. 1000 (1903). Appellee’s brief (p. 34) states the Georgia rule of law authorizing punitive damages in part as follows: “Wantonness as authorizing exemplary damages does not mean necessarily malice, but a reckless disregard of the rights of others,” citing Charleston & W. C. Ry. Co. v. Elmurray, 16 Ga.App. 504, 85 S.E. 804 (1915).3
*342The evidence showed bad management of the case, and lack of prudence in its handling, but there was no evidence of wilfulness or intentional disregard of the insured’s rights. In my view, it falls far short of wilful misconduct, malice, fraud, wantonness or oppression so as to justify an award of punitive damages. I do not disagree with the summary of facts in the majority opinion, but these facts will not fairly support an award for punitive damages under Georgia law. Accordingly, I would have granted the defendant-appellant’s motion for judgment n. o. v. as to the award of punitive damages.
Attorney’s Fees Equal to 50 Per Cent of All Damages
Georgia law on the subject is succinctly stated in Dodd v. Slater, 101 Ga.App. 358, 114 S.E.2d 167 (1960), as follows:
“Attorney’s fees are not usually allowed as an item of damages except in those eases permitted by statute. Such fees are not a part of punitive or vindictive damages, but stand alone and are regulated by Code § 20-1404 which provides: ‘The expenses of litigation are not generally allowed as a part of the damages; but if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.’ The courts construe this section to apply to torts.”
In the instant case the jury found both negligence and bad faith on the part of the defendant insurance company and allowed attorney’s fees equal to 50 per cent of the total award for special, general and punitive damages. This was undoubtedly a proper ease for allowance of attorney’s fees, but I would hold that the fees awarded are excessive and the appellant’s motion for a new trial as to this award should have been granted.
The trial judge instructed the jury on the question of attorney’s fees in part as follows:
“I charge you that any award of attorneys fees in this case should be determined on a quantum meruit basis, irrespective of any contract which may exist between the plaintiff and his attorney as to the amount of such fees. Now, quantum meruit simply means that the attorneys fees should be determined on the basis of what would be a reasonable fee for the work performed under the circumstances of the particular case.” (Emphasis supplied.)
Though the evidence shows that plaintiff’s counsel had a 50 per cent contingent fee contract with his client, counsel expressly states that he was not suing upon any contingent recovery but for attorney’s fees in the sum equal to 50 per cent of all other damages prayed for.4
In a colloquy with the Court at the close of plaintiff’s case, his counsel, Mr. *343Kitchings, also stated in part: “It is under this statute [Georgia Code Section 20-1404] that attorneys fees in the ‘Crawford’ case are worth — where attorneys fees are allowed such fees are to be determined on quantum meruit basis, and this is true irrespective of the contract between the plaintiff and the plaintiff's attorney as to the amount of such fees.” (Emphasis supplied.) Defendant objects to any award of attorney’s fees whatsoever, but also contends that the Georgia Code provision in question does not contemplate contingent or percentage fees as a proper measure of such compensation.
All counsel agree that attorney’s fees should be determined on a quantum meruit basis, that is, on a reasonable value of the services, predicated upon the time spent, the issues involved and other factors normally used when fixing a just and proper fee. Despite this view of the law by the parties and the Court, the evidence produced by plaintiff to support the claim for attorney’s fees was that of four Georgia attorneys who testified that in their opinion a contingent fee contract calling for 50 per cent of recovery was reasonable.5 The evidence, therefore, was predicated on a contingent fee contract of 50 per cent of the total damages, and there was no evidence based on quantum meruit as the Court and counsel for both sides had considered legally proper. In my view, an award of 50 per cent of the total damages as an additional amount for attorney’s fees was unwarranted and excessive under Georgia law and under the Court’s instructions. The proper measure should have been on a quantum meruit basis *344and not on a contingency of 50 per cent. Since plaintiff’s evidence supported only an award of a 50 per cent contingent fee, the motion for a new trial filed by defendant should have been granted as to this item and proper proof adduced as to the value of the legal services performed.6 There is no doubt that the services were long, detailed and valuable, but the award of 50 per cent should not stand under the circumstances of this case, and this issue should be retried, with proper legal proof as to the reasonable, actual value of the services.
I, therefore, respectfully concur in part and dissent in part.
. The jury made total awards to plaintiffappellee in this case as follows:
Special Damages (the excess of the Donaldson judgments
over the policy limits) $23,858.40
General Damages 10,000.00
Punitive Damages 10,000.00
Attorney’s Fees 21,929.20
Total $65,787.60
These were the same amounts sought by plaintiff in his pleadings, as amended.
. The applicable Georgia statute authorizing punitive damages is Georgia Code Ann. 105-2002. See also Beverly v. Observer Pub. Co., 88 Ga.App. 490, 77 S.E. 2d 80 (1953).
. The trial judge charged the jury in the instant case on the question of punitive damages as follows:
“In connection with the claim for punitive damages, I charge you that in order for the plaintiff to recover punitive damages in this case, as the Court in*342terprets the law of the State of Georgia, this requires that the plaintiff prove by a preponderance of the evidence that the defendant insurance company was guilty of wilful misconduct or malice or fraud or wantonness or oppression or that the company was guilty of that entire want of acre which would raise a presumption of a conscious indifference to the consequences. In this regard, you cannot as a matter of law return a verdict for punitive damages against the defendant insurance company unless you find that company either through its attorneys or adjusters or other agents was guilty of wilful misconduct and/or malice and/or fraud and/or wantonness or oppression and exercised an entire want of care in utter disregard of the rights and consequences to the plaintiff, Sergeant Smoot, and if the plaintiff fails to prove such wilful misconduct and indifference to the rights of the plaintiff, then the plaintiff is not entitled to recover punitive damages.”
. Counsel for plaintiff-appellee states the proposition in his brief (pp. 35-36) as follows:
“We are confident that this court will read the amended prayers carefully. And when it does, it will find that the prayers are not predicated upon any contingent recovery. Appellee prayed for attorney fees ‘in a sum equal to fifty (50%) per cent of all other damages * * * prayer for.’ Not fifty (50%) per cent *343of whatever the jury may elect to award and not fifty (50%) per cent of the total recovery in accordance with counsel’s contract introduced in evidence but a sum equal to fifty (50%) per cent of the other sums stated in the prayers which under any circumstances amounted, at the time of the trial, to the specific sum of Twenty-one Thousand Nine Hundered Twenty-Nine and 20/100 ($21,929.20) Dollars.”
. Attorney Perry Brannen testified as follows:
“Q. Mr. Brannen, are you familiar with the case of Harvey Thomas Smoot, Jr., vs. State Farm Automobile Insurance Company?
“A. Well, Mr. Kitchings, I think I am to some extent from having reviewed a portion of your file and having seen a resume prepared by you.
“Q. I see. And, sir, from your examination of the file and the record in the case and from your experience as a practicing lawyer in this locality, would you testify that a contingent fee of fifty percent of recovery would be either reasonable or unreasonable, in your opinion?
“A. In this case, I would say that it was reasonable.”
Attorney ID. A. Friedman testified as follows:
“Q. Mr. Friedman, have you become familiar with the law suit entitled Harvey Thomas Smoot, Jr. vs. State Farm Automobile Insurance Company?
“A. Certainly not as familiar as you, but to some extent, as a result of conversations with you and the result of reading of certain portions of the case and resume which you submitted to me.
“Q. Sir, in. accordance with your experience as a practicing lawyer in this community and in accordance with your knowledge of the case at hand, would you testify that the attorneys fees in this case would be reasonable on the basis of a contingent basis of fifty percent of the recovery, would that be a reasonable attorneys fees?
“A. In my opinion in this case, that would be a reasonable attorneys fees.”
Attorney Aaron B. Buchsbaum testified as follows:
“Q. Mr. Buchsbaum, have you become familiar with the record and file in the case of Harvey Thomas Smoot?
“A. • Not with the entire record, but with a summary of it, yes.
“Q. I see. From your experience as a practicing attorney in this locality and from your knowledge of the case we are talking about, would you testify whether or not, in your opinion, a contingent fee contract calling for fifty percent of recovery is a reasonable fee?
“A. I would say that it is reasonable.” Attorney David H. Fritts testified as follows:
“Q. From your experience as a practicing attorney in this community — well, I will ask you first, have you become familiar with the case of Harvey Thomas Smoot vs. State Farm Automobile Insurance Company?
*344“A. You have discussed it with me during the past five or six years.
“Q. Have you had occasion to become aware of the appellate work that has been done in this case?
“A. Yes, sir, some of it, not to any great detail, but some of it.
“Q. Sir, do you feel that you can testify, from your knowledge of the case that has been pending over these years, and from your experience as a practicing attorney in this community, can you testify whether or not a contingent fee basis of fifty per cent of all damages recovered, or fifty percent of the recovery is a reasonable attorneys fees?
“A. I think probably it is reasonable under the circumstances of the case.”
. It is obvious that the jury knew that the plaintiff had a 50 per cent contingent contract with his attorney and simply added this amount to its award without reference to whether the fee was fair or reasonable and in the face of the instructions of the Court that the fee should be established not on the basis of the contract between the parties, but on a quantum meruit or reasonable fee basis for the work performed. Its action was not, therefore, an exercise of discretion but an automatic, unquestioned acceptance of a contractual fee arrangement.