J.B. Hunt Transport, Inc. v. Doss

• Decision Date: 05 June 1995
• Docket Number: No. 94-1123,94-1123
• Citation: 320 Ark. 660,899 S.W.2d 464
• Parties: J.B. HUNT TRANSPORT, INC., Appellant, v. Arbert "Della" DOSS and Robert Doss, Appellees.
• Court: Arkansas Supreme Court

Page 464

899 S.W.2d 464

320 Ark. 660

J.B. HUNT TRANSPORT, INC., Appellant, v. Arbert "Della" DOSS and Robert Doss, Appellees.

No. 94-1123.

Supreme Court of Arkansas.

June 5, 1995.

Bruce E. Munson, Julia L. Busfield, Little Rock, for appellant.

Comer Boyett, Jr., Searcy, for Della Doss. Kent Pray, Newport, for Robert Doss.

HOLT, Chief Justice.

This is a tort case. The appellant, J.B. Hunt Transport, Inc., raises five points for reversal of a judgment in favor of appellees Arbert "Della" Doss and Robert Doss: (1) the trial court erred in excluding the testimony of J.B. Hunt's accident-reconstruction expert; (2) there was no substantial evidence to support the jury's verdict that appellee Robert Doss was acting within the course and scope of employment; (3) the trial court erred in denying J.B. Hunt's motion for a directed verdict on the issue of punitive damages and/or failing to set aside such an award; (4) the trial court erred in denying J.B. Hunt's motion for a new trial based upon the error in the assessment of punitive and compensatory damages; (5) the trial court erred as a matter of law in dismissing J.B. Hunt's third-party complaint against Robert Doss and in denying J.B. Hunt's claim for indemnity. We cannot say that the trial court committed reversible error.

Facts

On October 1, 1990, shortly after 7:00 p.m., appellee Robert Doss was driving a tractor- trailer owned by appellant J.B. Hunt Transport, Inc., when he collided with an automobile driven by his former wife, appellee Arbert "Della" Doss. Mrs. Doss filed suit against J.B. Hunt Transport on May 8, 1992, alleging that Mr. Doss was an employee "acting within the scope of his employment at all times pertinent to this complaint" and requesting both compensatory and punitive damages. Mrs. Doss did not sue Mr. Doss.

J.B. Hunt denied the allegations contained in Mrs. Doss's complaint and subsequently, on January 8, 1993, filed a third-party complaint against Mr. Doss, stating that Mrs. Doss's "damages, if any, are attributable to conduct and actions of Robert Doss which were outside the scope of his employment in that, at the time of the accident, Mr. Doss was engaged in a personal endeavor solely for his own benefit and not for the benefit of his employer." Further, J.B. Hunt contended that Mr. Doss had "acted intentionally to inflict damage and injuries on the Plaintiff and therefore was outside the scope of his employment." J.B. Hunt sought, in the event it should be adjudged liable to Mrs. Doss, to be awarded indemnification and contribution from and judgment against Mr. Doss. Moreover, J.B. Hunt asserted that Mr. Doss, acting alone or in conspiracy with Mrs. Doss, made false statements to his employer, law enforcement officers, and others regarding the accident.

The matter was tried before a jury in Woodruff County Circuit Court on October 19 and 20, 1993. The trial court denied J.B. Hunt's motions for directed verdicts on the issues of scope of employment and punitive damages. Upon interrogatories, the jury awarded Mrs. Doss $170,000 in compensatory damages and $100,000 in punitive damages. In an order filed on March 23, 1994, the trial court denied J.B. Hunt's motion for indemnification and contribution from Mr. Doss and dismissed its third-party complaint against Mr. Doss with prejudice.

J.B. Hunt then filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, arguing that the verdict should be set aside as there was no substantial evidence to support a verdict that Robert Doss was acting in the scope of his employment. In addition, J.B. Hunt argued that the award of punitive damages should be set aside as contrary to the law and facts and as a violation of due process. In the alternative, J.B. Hunt sought a new trial because the jury's verdict was clearly against the preponderance of the evidence and there was an error in the assessment of damages. The trial court denied the motion, and this appeal followed.

I. Accident reconstruction expert

In its first point for reversal, J.B. Hunt argues that the trial court erred in excluding testimony of Steve Jackson, the defense's accident reconstruction expert. After the jury had been seated, a recess was called and a hearing was held regarding Mrs. Doss's motion in limine to prohibit introduction of the testimony of Mr. Jackson. The defense proffered the testimony of Mr. Jackson, who stated that he had examined photographs taken of the vehicles and the accident site that appeared to be inconsistent with statements of Mr. and Mrs. Doss that Mrs. Doss's vehicle was stopped at a stop sign when it was struck.

According to Mr. Jackson, the photographs indicated that

the impact was clearly on the shoulder in the intersection rather than in proximity to the stop sign, and that indicated by debris and tire marks where the impact occurred. And those tire marks have a particular characteristic that actually show that there was an impact.

On cross-examination, counsel for Mrs. Doss questioned Mr. Jackson about the reliability of the investigating officer's report:

Q Now, if a State Police Officer investigated the accident this night and recorded his data while it was fresh on his mind, wouldn't you agree that he would be a better judge how the accident occurred and the points of impact rather than looking at photographs over a year later?

A Well, if it were a simple matter of doing that, he would, yes.

Q What specifically could you offer by looking at those photographs that a State Trooper could not offer who was there at the scene of the accident and was familiar with the intersection and investigated that particular wreck on that night as compared with the investigation of another person who was not there?

A Well, first of all, I don't know if he's investigated other accidents at that intersection. I take your word for it that he has if you want it put on the record that he has.

Secondly, I don't know the process that he used to document--I don't know where he started his documentation measurements, and since there was no conflict in the statement of either driver as to where it happened, I don't know that he had had a whole lot of reason to have a real detailed documentation of the scene.

In questioning by the court, Mr. Jackson noted that the investigating officer

didn't indicate that he found any debris, nor did he document any debris on the highway.... Also, there was no documentation of the kind of scrub marks, the kind of tire-scrubbing that you'd find in an impact area.

. . . . .

What he [the State Trooper] says was that his investigation revealed that it happened at the stop sign, and that the tire marks began at the stop sign and went on to the west, but the photographs don't show that to be the case, and that's our disagreement problem there.

(Emphasis added.)

At the conclusion of Mr. Jackson's proffered testimony, the trial court declared that

at this time, I'm going to direct Mr. Jackson not to testify about the point of impact. The reliance on photographs as to where all the debris lay seems to me possibly misplaced, certainly not conclusive, unless the trooper says that--and I assume the trooper uses the same kind of--Mr. Jackson has taught there, and the trooper uses the same kind of ground evidence to determine point of impact. I always hear about the debris and where it falls, and if Trooper Hudson testifies that it occurred at the stop sign as an eyewitness, I'm going to prohibit Mr. Jackson from testifying it occurred someplace different. On the other hand, if Mr. Hudson does not know where it occurred or doesn't testify, is silent on that, he can go into that. But at this point, now, at least on the assumption Mr. Hudson is going to say, as he, I think, implied to me, that it occurred at the stop sign, I'm going to prohibit him, based upon the photographs, deciding it occurred someplace else since the photographs may or may not be inclusive.

(Emphasis added.) The trial court went on, however, to allow Mr. Jackson to testify concerning tire marks on Mrs. Doss's car.

Explaining his rejection of Mr. Jackson's testimony on the area of impact, the judge stated that

I'm allowing the trooper, assuming the trooper does a proper foundation, that is, where he says the debris landed and that sort of thing, I'm going to let him testify as to where the impact occurred based upon the fact that he was there and had the full range of view of the impact area. My problem with Mr. Jackson doesn't have to do with his inability to analyze where the debris is. It's that whether the photographs are in fact inclusive of the entire area, and that's what my problem is. It doesn't have to do with the fact of what he saw. I'm not questioning what he saw. I'm questioning whether he was able to see the entire area. That's where I'll leave it.

(Emphasis added.)

It is important to note that the trial court did not exclude Mr. Jackson's entire testimony. Instead, J.B. Hunt elected not to call its accident reconstruction expert after the trial court had excluded that portion of his testimony concerning the point of impact. The trial court based its limited exclusion on the adequacy of the photographs upon which Mr. Jackson relied--"whether the photographs are in fact inclusive of the entire area."

This court observed, in Banks v. Jackson, 312 Ark. 232, 848 S.W.2d 408 (1993), that while, as a general rule, attempts to reconstruct accidents by means of expert testimony are viewed with disfavor, we have consistently recognized exceptions when it appears that a particular situation is beyond the jurors' ability to understand the facts and draw their own conclusions. Whether a particular case should be governed by the general rule or should be treated as an exception is a matter within the trial judge's discretion. McElroy v. Benefield, 299 Ark. 112, 771 S.W.2d 274 (1989); Drope v. Owens, 298 Ark. 69, 765 S.W.2d 8 (1989).

In all evidentiary matters,...