Henderson v. Glen Oak, Inc. , 256 Ga. 619 ( 1987 )

256 Ga. 619 (1987) 351 S.E.2d 640

HENDERSON
v.
GLEN OAK, INC.

43664.

Supreme Court of Georgia.

Decided January 15, 1987. Reconsideration Denied January 27, 1987.

Hurt, Richardson, Garner, Todd & Cadenhead, Harold N. Hill, Jr., Chilivis & Grindler, Nickolas P. Chilivis, Butler & McDonald, James E. Butler, Jr., Cheeley & Chandler, Robert D. Cheeley, for appellant.

Anthony O. L. Powell, Jones Webb, W. Howard Fowler, Joseph B. Haynes, Gary J. Toman, Byron Attridge, for appellee.

MARSHALL, Chief Justice.

We granted certiorari in this case, Henderson v. Glen Oak, Inc., 179 Ga. App. 380 (346 SE2d 842) (1986), on questions concerning whether the respondent has recovered duplicitous damages from the petitioner and whether the jury's award of punitive damages is supportable. We conclude that the damages are not duplicitous and that the punitive damages are supportable. Thus, we affirm.

It is true that a plaintiff cannot recover a judgment against a defendant once in contract and again in tort for the same transaction. E.g., UIV Corp. v. Oswald, 139 Ga. App. 697 (229 SE2d 512) (1976). However, we agree with the respondent that here there are separate transactions supporting its recovery under each of the contract and tort theories. And, this was in part a tort action in which the jury was authorized to find that there were "aggravating circumstances, either in the act or the intention." OCGA § 51-12-5; BLI Constr. Co. v. Debari, 135 Ga. App. 299, 301 (2) (217 SE2d 426) (1975). Consequently, punitive damages were awardable.

Judgment affirmed. Marshall, C. J., Clarke, P. J., Weltner, Bell and Hunt, JJ., and Judges Gordon Knox, Jr., and Franklin H. Pierce concur. Smith and Gregory, JJ., disqualified.