Freeman v. Anderson

• Decision Date: 31 May 1983
• Docket Number: No. 83-80,83-80
• Parties: Rachel D. FREEMAN, Appellant, v. George ANDERSON and Anderson's Exxon, Appellees.
• Court: Arkansas Supreme Court

Page 450

651 S.W.2d 450

279 Ark. 282

Rachel D. FREEMAN, Appellant, v. George ANDERSON and Anderson's Exxon, Appellees.

No. 83-80.

Supreme Court of Arkansas.

May 31, 1983.

Rehearing Denied June 27, 1983.

Morgan E. Welch, North Little Rock, for appellant.

Laser, Sharp, Haley, Young & Huckabay, P.A., Little Rock, for appellees.

HOLT, Justice.

This case arises from an automobile accident in which the appellee George Anderson forced another vehicle across the center line and into the path of the appellant's oncoming vehicle. The appellee did not stop at the scene of the accident. In her pleadings the appellant requested, in addition to compensatory damages, punitive damages in the amount of $100,000, alleging the appellee's fleeing the scene showed a willful and wanton disregard for her welfare. At trial, the appellees stated that they would admit liability conditioned upon the court's ruling that punitive damages were not recoverable. The trial court ruled that punitive damages are not recoverable for incidents occurring after the collision that had no proximate causation and that references to the appellee's leaving the scene of the accident or the cause of the accident would be inadmissible. The jury returned a verdict of $500 for compensatory damages in favor of the appellant. Subsequently, the appellant moved for a new trial pursuant to ARCP Rule 59. The trial court denied the motion. Hence this appeal, which is certified to us by the Court of Appeals pursuant to Rules of the Supreme Court and Court of Appeals, Rule 29(1)(o ).

The appellant first asserts that the court erred in not granting a new trial inasmuch as the jury's verdict was inadequate and contrary to the preponderance of evidence, the law and instructions submitted to the jury by the court. The medical bills, which were stipulated to be reasonable, introduced by the appellant amounted to $490. In addition there were three estimates of the vehicular damage--one for $150, one for $479.61, and one for $731.23. Even though the appellees stipulated that the medical bills were reasonable charges for the services rendered, they denied that the medical expenses incurred by the appellant were proximately caused by the accident in question. The appellant did not seek medical attention until almost eight months after the accident, which her treating physician stated was unusual if her back troubles were caused by the accident. Furthermore, the physician also testified that the back ailment for which appellant sought treatment had existed prior to the accident. He had treated her two to three years before the accident. Hence, the jury could have found and apparently did find that the medical expenses incurred by the appellant were not proximately caused by the accident in question. In addition to the medical expenses and the vehicular damage, the appellant sought recovery for pain and suffering, which obviously was not proven in a precise amount. It appears that the jury awarded the appellant recovery based on one of the two smaller estimates of vehicular damage plus a small amount for pain and suffering. In Taylor v. Boswell, 272 Ark. 354, 614 S.W.2d 505 (1981), we said:

Civil Procedure Rule 59 has superseded our former statute with respect to new trials on account of the smallness of the verdict. Ark.Stat.Ann. § 27-1902 (Repl.1962). Rule 59 merely provides that a new trial may be granted for 'error in the assessment of the amount of recovery, whether too large or too small.' Our former rule was that when the verdict was for a substantial amount, as this one is, the trial judge's denial of a new trial for inadequacy of the award would not be reversed unless there was other error or the evidence definitely established a pecuniary loss in excess of the verdict. Bittle v. Smith, 254 Ark. 123, 491 S.W.2d 815 (1973). We need not determine to just what extent our law has been changed by Rule 59, because the appellant would not be entitled to a reversal even under the superseded statute and the former case law.

To the same effect see Waterfield v. Quimby, 277 Ark. 472, 644 S.W.2d 241 (1982). Here, we cannot say there was error in the jury's assessment of the amount of recovery, nor can we say the award of damages was nominal.

The appellant next contends that the court erred in allowing Officer Steven Young, at the appellees' request, to return to the stand and testify after his release from the witness rule and in the interruption of appellant's order of proof. Young was the investigating officer at the accident and he was called to testify by the appellant. On direct examination he testified that he assigned $150 as estimated damages to the appellant's vehicle. After testifying, Young contacted the appellees and appellees' attorney to inform them that he had considerable qualifications in the area of automobile body repair and that he was disturbed that no one asked his qualifications when he gave his estimate of the damage to appellant's vehicle. He denied having talked with anyone else concerning the lawsuit following his testimony. During cross-examination of the appellant, the appellees moved the court to allow Young to return to the stand to tell the jury of his qualifications, which was allowed. The appellant argues the court's action in this regard was an abuse of the discretion which is granted the court in regulating the mode and order of interrogation and presentation of proof by Ark.Stat.Ann. § 28-1001, Rule 611 (Repl.1979) and Ark.Stat.Ann. § 28-103 (Repl.1979). Rule 611(a) provides:

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

This is an area in which the law necessarily vests considerable discretion in the trial court. Parnell v. State, 207 Ark. 644, 182 S.W.2d 206 (1944); Smith v. State, 222 Ark. 650, 262 S.W.2d 272 (1953); Parker v. State, 252 Ark. 1242, 482 S.W.2d 822 (1972); 6 Wigmore, Evidence § 1867 (Chadbourn Rev.1976); and 2 Louisell and Mueller, Federal Evidence § 334 (1979). We find no abuse of discretion here.

Finally, appellant insists that the trial court erred in excluding evidence that the defendant fled the scene of the accident. She argues that this evidence was relevant to show a willful and wanton state of mind on his part and, therefore, would justify an award of punitive damages. The appellant cites authority for the admission of evidence of hostile actions subsequent to the injury to prove malice at the time of the injury, as well as authority for the admission of evidence that the defendant refused to assist the injured plaintiff after...