concurring in part and dissenting in part.
I concur in the judgment and opinion with the exception of Division 3, to which I respectfully dissent.
Appellants contend that the evidence with respect to the independent actions of Hunt was not only insufficient to show that Hunt *259acted or failed to act with specific intent to cause harm, but failed to support an award of punitive damages in any amount. In support of their claim, the plaintiffs presented evidence that Hunt was a habitual violator of federal limits placed on driver’s hours; that Hunt used a “forced dispatch” system, which allegedly required drivers, such as Lutter, to accept loads even though they may have been too tired to drive, and that the driver’s log destroyed by Hunt would have shown whether or not Lutter was violating the federal time limits for driving at the time of the accident.
Even if the failure of Hunt to produce the driver’s log raised a presumption against Hunt pursuant to OCGA § 24-4-22, I conclude that this, along with the other evidence of Hunt’s independent conduct was not clear and convincing evidence required by OCGA § 51-12-5.1 (b) for the award of punitive damages. “Under OCGA § 51-12-5.1 (b) . . . it remains the rule that something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage. . . .” (Punctuation omitted.) Ivey v. Golden Key Realty, 200 Ga. App. 545 (1) (408 SE2d 811) (1991). “Mere negligence, although gross, will not alone [support] the recovery of punitive damages.” (Citations and punctuation omitted.) Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860, 861 (1) (389 SE2d 355) (1989). Although the “any evidence” rule cited by the majority as the standard of review on appeal from a directed verdict or judgment n.o.v. is technically correct and supported by authority, it is potentially misleading in that it may imply the appellate court will defer to the trial judge’s determination. In reviewing a motion for directed verdict or judgment n.o.v., both the trial judge and the appellate court determine as a matter of law whether the evidence was sufficient under the same standard: “If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” OCGA § 9-11-50 (a). The only question asked by the appellate court is whether the trial judge was right or wrong in applying this standard. See Gregory, Ga. Civil Practice, § 6-17, p. 505 (1990). Of course, under OCGA § 51-12-5.1 (b), if a material issue exists, it must be with respect to clear and convincing evidence.
The plaintiffs’ theory was that the factual circumstances of the accident support the inference that Lutter must have been asleep or barely awake when, after weaving down the interstate, he slammed into Bentley’s truck in broad daylight without hitting the brakes. To shift the blame for this conduct to Hunt, plaintiffs pointed to Hunt’s “forced dispatch” system and history of repeated violations by other Hunt drivers of the federal driving time limits. The plaintiffs contend that this is evidence Lutter was asleep or too tired to drive; that the *260destroyed logbook would have shown Lutter had been driving too long, and that Hunt’s policies were the cause of these conditions, which in turn were the cause of the accident. There was no direct evidence that Lutter was tired or asleep, or that if he was, this condition was the result of conduct by Hunt. I cannot conclude on the present facts that these inferences and the circumstantial evidence from which they were drawn are sufficient to create a material issue with respect to the clear and convincing evidence necessary to support the award of punitive damages.
Decided December 18, 1992 Reconsideration denied February 5, 1993 Hurt, Richardson, Garner, Todd & Cadenhead, Harold N. Hill, Jr., for appellants. Bondurant, Mixson & Elmore, Emmett J. Bondurant, George W. Fryhofer III, Michael A. Sullivan, Fortson, Bentley & Griffin, J. Edward Allen, for appellees.The trial court erred by allowing the assessment of punitive damages directly against Hunt for its conduct independent of Lutter in favor of Mason Bentley in the sum of $250,001, and in favor of Ms. Bentley in the sum of $250,001. These sums should be written from the judgment in their entirety.
I am authorized to state that Chief Judge Sognier and Presiding Judge Birdsong join in this dissent.