concurring in part and dissenting in
part.I agree that the evidence does not adequately raise the issue of punitive damages, and that the trial court erred in denying appellant’s (WMAZ) motion for directed verdict as to punitive damages. However, in my view, prejudicial error resulted when the jury was given a totally unauthorized charge as to punitive damages at the same time it was instructed and subsequently deliberated as to the issue of liability and general damages; in this instance, by so placing the unauthorized issue of punitive damages before the jury, a fair risk of taint reasonably was created as to the $500,000 general damage award.
1. Applying the review standard of “any evidence” (Mattox v. MARTA, 200 Ga. App. 697, 698 (1) (409 SE2d 267)), it is my conclusion that the trial court erred in denying appellant’s motion for directed verdict as to punitive damages.
The statutory standard for award of punitive damages is promulgated in OCGA § 51-12-5.1. By statute, something more than mere commission of a tort is required to support the imposition of punitive damages. Troutman v. B. C. B. Co., 209 Ga. App. 166, 168 (433 SE2d 73). Even gross negligence will not authorize the recovery of punitive damages. Id.
Before trial appellee was requested to make admissions, pursuant to OCGA § 9-11-36. Among the admissions made by appellee were that “the master videotape revealed that at no time [was appellee] undigitized,” and that he did not contend the tape had been altered or subject to tampering. In any event, testimony was presented by appellant that the program director pre-set the level of digitization and checked it for adequacy and the production manager also saw the digitization level and considered it adequate. Although the evidence was in conflict as to the level of digitization that was pre-set or whether any digitization had been effected by the procedure attempted to be employed, the testimony to the effect that appellant’s personnel had at least attempted to pre-set the digitization was not controverted either directly or indirectly by reasonable inference. Moreover, examination of the tape conclusively establishes that after the initial momentary revealing of appellee’s face, an adequate level of digitization was obtained within seven seconds due to corrective action immediately being effected by appellant’s personnel. Further, the tape shows that a slide of a skin lesion was immediately displayed, and there exists some expert opinion testimony that this was done to enable station personnel time to correct the digitization problem.
Where, as in this case, the defendant has exercised at least some degree of care, and even though its lack of strict control to protect *714appellee’s identity from disclosure as a person who has contracted AIDS may have amounted to negligence or even gross negligence, it does not constitute any evidence of wilful misconduct or of an entire want of care necessary to support a jury award of punitive damages. Compare Wilson v. Brighton Homes, 204 Ga. App. 677, 680 (4) (420 SE2d 360); Powell v. Ferreira, 198 Ga. App. 465 (402 SE2d 85). The evidence, as a matter of law, was insufficient to support a finding of wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care, as required by OCGA § 51-12-5.1 (b). After construing the evidence most favorably for appellee, a verdict in favor of appellant/defendant was demanded as to punitive damages. See Wilson, supra; see generally Pendley v. Pendley, 251 Ga. 30 (302 SE2d 554). Accordingly, as must be conceded by the majority, appellee was not entitled either to have the jury charged or to have them consider any issue of punitive damages in arriving at their verdict.
2. Assuming appellee did not totally waive his right of privacy — at least as to those persons outside the station viewing the broadcast via television — the question remains whether the $500,000 general damage verdict can be sustained in view of the erroneous consideration of the question of punitive damages by the jury. In this instance, the initial charge to the jurors requiring them to determine whether punitive damages should have been imposed created a fair risk of taint to the general damage award notwithstanding the bifurcated proceedings conducted as to the ultimate award of punitive damages. The jury was given a detailed charge on punitive damages after , being advised that “[i]n tort actions, there may be aggravating circumstances which may warrant the awarding of additional damages called punitive damages.” (Emphasis supplied.) This charge did not expressly instruct the jury as to what point in the proceeding the amount of such additional damages would be determined if the jury found it should be awarded. The record on its face establishes that the jury awarded $500,000 compensatory damages to appellee, but in the subsequent bifurcated proceeding awarded appellee punitive damages of only $100, as against defendant corporate entity. This $100 punitive damage award was made notwithstanding that the jury was instructed by the court that “punitive damages shall be awarded not as compensation to a plaintiff but solely to punish, penalize or deter a defendant.” This is a correct statement of the statutory purpose of punitive damages. OCGA § 51-12-5.1 (a), (c).
I believe, as a matter of law, that a punitive damage award of only $100, under the existing circumstances, is so grossly disproportionate when compared to the substantial general damage award adjudged, and is so blatantly incapable of fulfilling the statutory purposes to punish, penalize, or deter, that it cannot be ruled out that the jury erroneously included punitive damage elements within their *715$500,000 general damage award. Compare Petrolane Gas Sue. v. Eusery, 193 Ga. App. 860, 862 (2) (389 SE2d 355). Because a reasonable potential or a fair risk for such error exists, appellant WMAZ has been denied a right of fair trial as to these matters. I agree with the analysis of Presiding Judge Beasley in Petrolane that even assuming appellee were to counter that “there was evidence of compensatory damage alone to support the amount of the award to [appellee], . . . the jury was not obligated to award all actual damage that the evidence might have authorized. That evidence, when compared with the verdict [in its totality], does not lead inexorably to the conclusion that only compensatory damages were awarded.” Id. at 863. (Incidentally, the record reveals that the maximum range of damages which the jury could have found to have been proven by appellee, due to any actual loss of wages, would sustain but a relatively small portion of the $500,000 general damage award.) It cannot inexorably be concluded, under the existing circumstances, that the verdict for general damages did not include unauthorized additional or punitive damages based on perceived aggravating circumstances. Id.
Contrary to the majority’s view, the $500,000, although identifiable is not, under the attendant circumstances, separable from the punitive damages award. The token award of only $100 punitive damages strips the insulating veneer of a bifurcated proceeding from the general damages award; the reasonable potential of a clear risk that unauthorized punitive damage considerations have permeated the $500,000 general damages award is inescapable. The harm here arises by virtue of the following procedure: the jury, during the liability and general damages phase of the bifurcated proceeding, was erroneously instructed they could consider whether to award punitive damages, decided that such an award was appropriate (thereby having found the existence of unauthorized aggravating factors), and not being instructed when and how a punitive award was to be made by them thereby was left to speculate as to how such an award was to be effected. This procedure when viewed in the context of what actually happened in the second stage of the bifurcated proceedings (that is, the award of a punitive damage amount so low that as a matter of law it could not have been adjudicated in accordance with punitive damage instructions given) gives rise to the fair risk of taint to the $500,000 award. It is not the nature of the evidence admitted in the first portion of the trial or the alleged minimum amount of damages sought by appellee that is relevant (particularly, where the nature of the general damages sought in large measure is incapable of precise mathematical calculation); what is relevant is whether a fair risk is reasonably created that the jury added punitive damages into its general damage award calculation. Cassidy v. Wilson, 196 Ga. App. 6, 9 (395 SE2d 291) relied on by the majority to write off the punitive *716damages is inapposite to the facts of this case; the punitive damages award in Cassidy did not on its face reflect that it was a mere token award giving rise to a reasonable fair risk of taint to the entire general damage award. Although Multimedia WMAZ is a corporation, it too is entitled to a fair trial as to damages.
Additionally, “[instructions not warranted by the evidence are cause for new trial unless it is apparent that the jury could not have been misled thereby.” Harden v. Drost, 156 Ga. App. 363, 366 (4) (274 SE2d 748). When, as here, a charging error is shown to have occurred, it is presumed to be prejudicial and harmful, and this court will so hold unless it appears from the entire record that the error is harmless. Foskey v. Foskey, 257 Ga. 736 (2) (363 SE2d 547). The record does not support a finding of harmless error, particularly in view of the obvious discrepancy between the amount of general and punitive damages awarded by the jury.
This judgment must be reversed and a new hearing conducted, at least, as to the issue of compensatory damages.
I am authorized to state that Judge Smith joins in this opinion.