On Motion for Rehearing.
Ground 1 of the amended motion for a new trial assigned error on a portion of the charge of the court reading in part as follows: “If you find that the plaintiff is entitled to recover and you find that the injury to the plaintiff, if any, was occasioned by the wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to the consequences, then you would be authorized to award punitive or exemplary damages to the plaintiff.” It is contended in the motion for rehearing that this special ground was not passed on, but it in fact forms the second division of this opinion. Since there was no evidence upon which punitive damages could have been based, a charge on the subject was of course error. However, “a verdict which is erroneous may be corrected by the writing off of the illegal part if the illegal part can be determined and is separable from the rest. Love v. National Liberty Ins. Co., 157 Ga. 259 (121 SE 648). Likewise, the appellate court may affirm the lower court upon condition that a part of the verdict be written off” if the illegal portion may be determined, although, if it cannot be, then a general reversal must result. Reserve Life Ins. Co. v. Gay, 214 Ga. 2 (102 SE2d 492). See also many cases annotated under Code § 6-1610, catchwords, “Write Off.” In the present case the jury returned the following verdict: “We the jury find in favor of the plaintiff against the defendants. We grant damages to the amount of $4,000 on the first count (pain and suffering) and $200' on the second (punitive damages), a total of $4,200.” It thus affirmatively shows that portion awarded as punitive damages. The error may accordingly be corrected, if the defendant in error so desires, by writing off the illegal sum of $200, or, by her failure to do so, suffering a general reversal of the case.
Motion denied.