Dempsey Bros. Dairies, Inc. v. Blalock

• Decision Date: 20 November 1984
• Docket Number: No. 68394,68394
• Citation: 325 S.E.2d 410,173 Ga.App. 7
• Parties: DEMPSEY BROTHERS DAIRIES, INC. v. BLALOCK.
• Court: Georgia Court of Appeals

Page 410

325 S.E.2d 410

173 Ga.App. 7

DEMPSEY BROTHERS DAIRIES, INC. v. BLALOCK.

No. 68394.

Court of Appeals of Georgia.

Nov. 20, 1984.

Rehearing Denied Dec. 10, 1984.

Certiorari Denied Jan. 10, 1985.

John H. Moore, Y. Kevin Williams, Marietta, for appellant.

Clifford H. Hardwick, D. Ruth Primm, Atlanta, for appellee.

BENHAM, Judge.

Appellee was a route deliveryman for appellant dairy company from April 1979 until February 1981, when he left the company to accept other employment. Appellant refused to give appellee his final paychecks, totalling $253.57 in salary and commissions, alleging he owed the company over $2,800 in inventory shortages accumulated between April 1980 and his resignation date. Appellant also retained the $100 cash bond it required each route deliveryman to pay upon beginning employment. When appellee sought to obtain his pay, appellant responded by sending a creditor demand letter showing his earnings and bond money had been credited to the alleged shortage, leaving an outstanding balance of $2,573.25. Appellant followed this demand letter with a notice resembling legal process, although no lawsuit had been filed. Appellant also issued two checks payable to appellee for his salary and commission, sent appellee the check stubs, retained the checks, endorsed them, and deposited them in its own bank account.

Appellee filed suit against the company alleging, inter alia, fraudulent conversion of his funds. He sought $600 actual damages, $25,000 punitive damages, and attorney fees. Appellant counterclaimed for the alleged $2,573.25 shortage. The jury found in appellee's favor, and awarded $323.57 actual damages, $7,500 punitive damages, and $3,300 attorney fees. The jury denied appellant recovery on its counterclaim.

Appellant's motions for judgment notwithstanding the verdict and for new trial having been denied, it brings this appeal, raising three enumerations of error.

1. In its first two enumerations of error, appellant claims that there was not sufficient evidence for the issue of punitive damages to be presented to the jury. We disagree.

OCGA § 51-12-5 provides for jury awards of exemplary (punitive) damages in tort actions when aggravating circumstances occur in either the act or the intention. " 'To authorize the imposition of [such] damages there must be evidence of wilful misconduct, malice, fraud, wantonness or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences.' [Cits.]" Ponce de Leon Condominiums v. DiGirolamo, 238 Ga. 188(1), 232 S.E.2d 62 (1977). If the tort is committed through mistake, ignorance or mere negligence, damages are limited to actual injury. Molton v. Commercial Credit Corp., 127 Ga.App. 390(4), 193 S.E.2d 629 (1972). Punitive damages are given only as additional damages to deter the wrongdoer from repeating the trespass (Kilgore v. Nat. Life etc. Ins. Co., 110 Ga.App. 280(1), 138 S.E.2d 397 (1964)), and the amount of damages required to deter future acts necessarily depends on the facts of each particular case. Sizemore Sec. Intl. v. Lee, 161 Ga.App. 332(3), 287 S.E.2d 782 (1982). " '(O)rdinarily the question of imposition of punitive damages is for the jury. However, the controlling question ... is whether there was any evidence to support such an award'." Alliance Transp. v. Mayer, 165 Ga.App. 344, 301 S.E.2d 290 (1983).

There was evidence that appellant had a practice of retaining the $100 cash bond it required route deliverymen to pay and that inventory shortages were charged to appellee even when the company substituted other personnel to run appellee's route. On one occasion appellant arbitrarily deducted $50 from one of appellee's earlier paychecks without notice to him, because of alleged shortages, even though the computer inventory records on which appellant based its claim were inaccurate and routinely had to be corrected. At one point appellant's records showed appellee had an overage of $1,900, but appellant claimed that that was an error. When asked...