When a dispute arose concerning a contract pursuant to which Crane Brothers was to dig a well for May, two employees of Crane Brothers physically attacked May. Arrested and charged with simple battery, one was convicted and fined and the other was acquitted. Crane Brothers sued May on the debt and May counterclaimed in tort, seeking to hold Crane Brothers liable in respondeat superior for its employees’ alleged assault and battery. A jury awarded damages and attorney fees to Crane Brothers on the contract claim, and awarded May $470 in compensatory damages and $30,000 in punitive damages on his tort claim. On appeal, the Court of Appeals reversed the punitive damages portion of the judgment because of the exclusion of mitigation evidence of the employee’s criminal conviction and fine. Crane Brothers v. May , 252 Ga. App. 690 556 SE2d 865 2001. In granting May’s petition for certiorari, this Court posed the following question: Whether, in the phase of a trial conducted pursuant to OCGA § 51-12-5.1 d 2 for the purpose of determining the amount of punitive damages, an employer who has been found vicariously liable for the tortious conduct of its employee can introduce as mitigation evidence the employee’s criminal conviction. That a defendant’s criminal conviction for the acts which underlie a tort action may be considered by the jury in mitigation of punitive damages was established in Georgia in Cherry v. McCall , 23 Ga. 193 1857. The ruling there was based on the principle that “a man shall not be twice punished for the same offence.” Id. at 199. That principle has no application to the situation presented in this case because Crane Brothers never bore any risk of punishment by the criminal justice system for the offense committed by its employee. Davis v. City of Peachtree City , 251 Ga. 219, 220 304 SE2d 701 1983.1 The analysis adopted by the Court of Appeals in this case went awry when it held that “punitive damages are intended to punish the wrongful conduct of the employee. . . .” Crane Brothers v. May , supra, 252 Ga. App. at 692. That analysis is inconsistent with our statute on punitive damages which provides that punitive damages “shall be awarded . . . to punish, penalize, or deter a defendant.” OCGA § 51-12-5.1 c. As may be seen from the language of the statute, an award of punitive damages is not intended to punish conduct, but to punish or, as in a case such as this one, to deter a defendant.2 The employee who was convicted of a crime for his attack on May was not a defendant in this case, so whether the employee has been punished is irrelevant to the goal of deterring the defendant, the employer, from permitting such behavior on the part of its employees.3 The argument put forth by the Court of Appeals and by the dissent, that since the employee could have introduced, for the purpose of mitigation, evidence of his conviction, the employer whose liability is based on the conduct of the employee should be entitled to offer the same evidence, ignores the principle underlying the employee’s right to offer the evidence, that one should not be punished twice for the same conduct. The employer in this case suffered no initial punishment and is, therefore, not in danger of being subjected to multiple punishment.
We conclude, therefore, that where an employer is held liable under respondeat superior for the tort of its employee and punitive damages are sought, the employer has no right to present as mitigative evidence the conviction of its employee for the conduct on which the suit is based. The Court of Appeals erred in holding otherwise.
