Hunt, Presiding Justice.
The issue presented in this appeal is whether the trial court was required, in its charge to the jury, to define “clear and convincing evidence” necessary to support an award of punitive damages under OCGA § 51-12-5.1 (b). We granted certiorari to the Court of Appeals in Clarke v. Cotton, 207 Ga. App. 883 (429 SE2d 291) (1993) wherein that court held the trial court did not err in failing to so charge the jury. Although we hold the trial court should have charged the jury on the definition of clear and convincing evidence, we affirm the Court of Appeals because we find the defendants did not preserve their claim that the trial court’s error in this regard was harmful.
Cotton brought this action against Clarke, Jr. and Clarke Communications for compensatory and punitive damages resulting from a collision between his vehicle and one driven by Clarke, Jr., who was intoxicated and driving a vehicle owned by Clarke Communications. Following the first stage of the bifurcated trial, the jury awarded Cotton compensatory damages and found punitive damages should be awarded in Cotton’s favor against both defendants. Following additional argument on the issue of punitive damages, the jury awarded the maximum amount authorized under OCGA § 51-12-5.1 (g), $250,000, against both defendants together.
The trial court properly charged that two standards of proof applied in this case: the preponderance of evidence standard with regard to liability for compensatory damages, and “clear and convincing evidence” with regard to liability for punitive damages. However, while the trial court provided the jury a definition of “preponderance of the evidence,” he refused to give the defendants’ requests to charge defining “clear and convincing evidence” and did not otherwise define that standard. The Court of Appeals correctly noted that “clear and convincing evidence” is an intermediate standard of proof, greater than “the preponderance of evidence,” but less than the “beyond a reasonable doubt” standard applicable in criminal cases, and, in rare instances, certain civil cases. Nevertheless, the Court of Appeals held the trial court did not err in failing to charge a definition of clear and convincing evidence because the defendants’ proposed charges were either incomplete or incorrect, and because the issue of punitive damages was collateral to the main issues in the case.
We disagree. While a trial court’s failure to give a request to charge on a collateral issue, which request is incomplete or incorrect, [862] is not reversible error, Clarke v. Cotton, supra, 207 Ga. App. at 885 (2), the issue of punitive damages in this case was by no means collateral. Rather, the defendants’ liability for punitive damages was the focus of arguments on both sides, as the defendants essentially conceded liability for the accident itself, and Cotton’s actual damages were minimal. We agree with the defendants that under circumstances such as those presented in this case, where two different standards of proof apply, and even in the absence of a request to charge, see Claxton v. Claxton, 214 Ga. 715, 719 (2) (107 SE2d 320) (1959), the court is obligated to define both standards to avoid misleading or confusing the jury.1
Nevertheless, we affirm the Court of Appeals and the trial court because the defendants failed to make any objection which would preserve a claim that the trial court’s error was harmful. There was no harm with regard to punitive damages against Clarke, Jr. because the overwhelming evidence showed a “conscious indifference to consequences” on his part, more than meeting the clear and convincing standard of OCGA § 51-12-5.1 (b). The error in the charge might have been harmful, and any harm would have been apparent with regard to a punitive damage award against Clarke Communications, had the trial court instructed the jury, as it should have, that they consider punitive damages separately as to each tortfeasor, based on the aggravating circumstances arising from evidence proving each tort: negligent driving regarding Clarke, Jr., and negligent entrust[863] ment of the vehicle regarding Clarke Communications. Clarke v. Cox, 197 Ga. App. 83, 84 (2) (397 SE2d 598) (1990). Here, however, counsel for the defendants acquiesced in the trial court’s instructions authorizing the jury to return a verdict for punitive damages against both defendants together, without any distinction between them.2 Accordingly, the defendants have waived any claim that the trial court’s error in its charge was harmful.
Judgment affirmed.
Clarke, C. J., Hunt, P. J., Benham, Fletcher, Sears-Collins, Hunstein, JJ., and Judge K. Dawson Jackson concur. Carley, J., disqualified.
Free access — add to your briefcase to read the full text and ask questions with AI
Hunt, Presiding Justice.
The issue presented in this appeal is whether the trial court was required, in its charge to the jury, to define “clear and convincing evidence” necessary to support an award of punitive damages under OCGA § 51-12-5.1 (b). We granted certiorari to the Court of Appeals in Clarke v. Cotton, 207 Ga. App. 883 (429 SE2d 291) (1993) wherein that court held the trial court did not err in failing to so charge the jury. Although we hold the trial court should have charged the jury on the definition of clear and convincing evidence, we affirm the Court of Appeals because we find the defendants did not preserve their claim that the trial court’s error in this regard was harmful.
Cotton brought this action against Clarke, Jr. and Clarke Communications for compensatory and punitive damages resulting from a collision between his vehicle and one driven by Clarke, Jr., who was intoxicated and driving a vehicle owned by Clarke Communications. Following the first stage of the bifurcated trial, the jury awarded Cotton compensatory damages and found punitive damages should be awarded in Cotton’s favor against both defendants. Following additional argument on the issue of punitive damages, the jury awarded the maximum amount authorized under OCGA § 51-12-5.1 (g), $250,000, against both defendants together.
The trial court properly charged that two standards of proof applied in this case: the preponderance of evidence standard with regard to liability for compensatory damages, and “clear and convincing evidence” with regard to liability for punitive damages. However, while the trial court provided the jury a definition of “preponderance of the evidence,” he refused to give the defendants’ requests to charge defining “clear and convincing evidence” and did not otherwise define that standard. The Court of Appeals correctly noted that “clear and convincing evidence” is an intermediate standard of proof, greater than “the preponderance of evidence,” but less than the “beyond a reasonable doubt” standard applicable in criminal cases, and, in rare instances, certain civil cases. Nevertheless, the Court of Appeals held the trial court did not err in failing to charge a definition of clear and convincing evidence because the defendants’ proposed charges were either incomplete or incorrect, and because the issue of punitive damages was collateral to the main issues in the case.
We disagree. While a trial court’s failure to give a request to charge on a collateral issue, which request is incomplete or incorrect, [862] is not reversible error, Clarke v. Cotton, supra, 207 Ga. App. at 885 (2), the issue of punitive damages in this case was by no means collateral. Rather, the defendants’ liability for punitive damages was the focus of arguments on both sides, as the defendants essentially conceded liability for the accident itself, and Cotton’s actual damages were minimal. We agree with the defendants that under circumstances such as those presented in this case, where two different standards of proof apply, and even in the absence of a request to charge, see Claxton v. Claxton, 214 Ga. 715, 719 (2) (107 SE2d 320) (1959), the court is obligated to define both standards to avoid misleading or confusing the jury.1
Nevertheless, we affirm the Court of Appeals and the trial court because the defendants failed to make any objection which would preserve a claim that the trial court’s error was harmful. There was no harm with regard to punitive damages against Clarke, Jr. because the overwhelming evidence showed a “conscious indifference to consequences” on his part, more than meeting the clear and convincing standard of OCGA § 51-12-5.1 (b). The error in the charge might have been harmful, and any harm would have been apparent with regard to a punitive damage award against Clarke Communications, had the trial court instructed the jury, as it should have, that they consider punitive damages separately as to each tortfeasor, based on the aggravating circumstances arising from evidence proving each tort: negligent driving regarding Clarke, Jr., and negligent entrust[863] ment of the vehicle regarding Clarke Communications. Clarke v. Cox, 197 Ga. App. 83, 84 (2) (397 SE2d 598) (1990). Here, however, counsel for the defendants acquiesced in the trial court’s instructions authorizing the jury to return a verdict for punitive damages against both defendants together, without any distinction between them.2 Accordingly, the defendants have waived any claim that the trial court’s error in its charge was harmful.
Judgment affirmed.
Clarke, C. J., Hunt, P. J., Benham, Fletcher, Sears-Collins, Hunstein, JJ., and Judge K. Dawson Jackson concur. Carley, J., disqualified.
One of the defendants’ proposed charges in this case correctly stated that clear and convincing evidence was a greater standard of proof than the preponderance of the evidence standard. The Court of Appeals held that the charge was incomplete. However, it was an accurate statement of the law, and it would have been preferable, and not error for the court to have given the charge distinguishing the two different standards of proof in this case rather than giving no charge at all on the issue. The other charge on this point proposed by the defendants equated clear and convincing evidence with “proof to a reasonable certainty.” The defendants’ support for this charge was based on cases pertaining to the standard of proof required for a parol contract for land, which standard has been defined as one requiring that the minds of the jury be satisfied “to a reasonable certainty,” equivalent to “beyond a reasonable doubt.” Hattaway v. Dickens, 163 Ga. 755 (2) (a) (137 SE 57) (1927). We agree with the Court of Appeals that this proposed charge was an incorrect statement of law regarding the clear and convincing standard of evidence applicable in this case.
Unlike a situation of agency, involving employer and employee, the negligence of this driver and the negligence of the entity entrusting the vehicle to the driver, are two separate torts and, as the Court of Appeals correctly observed in Clarke v. Cox, supra, each of these defendants was entitled to separate consideration as to the propriety and amount of any punitive damages.