Miller v. Blanton

• Decision Date: 12 April 1948
• Docket Number: 4-8470
• Citation: 210 S.W.2d 293,213 Ark. 246
• Parties: Miller v. Blanton
• Court: Arkansas Supreme Court

210 S.W.2d 293

213 Ark. 246

Miller v. Blanton

No. 4-8470

Supreme Court of Arkansas

April 12, 1948

Appeal from Polk Circuit Court; Wesley Howard, Judge.

Affirmed.

Hill Fitzhugh & Brizzolara, for appellant.

J F. Quillin and Hal L. Norwood, for appellee.

Robins J. Smith J., dissenting.

OPINION

Robins, J.

As a result of a collision between an automobile owned and driven by appellee, M. W. Blanton, and an automobile being operated by appellant, Lloyd Miller, on a mission for his employer, the appellant, Columbia Pictures Corporation, said appellee and his wife, the appellee, Dorothy Blanton, sustained bodily injuries; and it was stipulated that the automobile of the first named appellee was damaged in the sum of $ 500.

In separate actions (consolidated for trial) brought by appellees against appellants, verdicts were returned in favor of appellees as follows: Appellee, Dorothy Blanton, compensatory damages, $ 1,000, punitive damages, $ 500; appellee, M. W. Blanton, compensatory damages, $ 500, punitive damages, $ 500. From judgment conforming to verdicts this appeal is prosecuted.

Only these two contentions are argued by appellants:

I. That there is no legal basis for the assessment of punitive damages herein.

II. That the amount of the compensatory damages awarded to appellee, Dorothy Blanton, is excessive.

I.

The collision occurred on Highway 88, a graveled state highway, about three miles east of Mena. At this point there is what is described by witnesses as a "blind hill," on which drivers of vehicles approaching the crest from opposite sides cannot see the approaching vehicle until just before they meet.

Appellant, Miller, was driving toward the east and appellees were traveling west, as they neared each other on the hill.

The car of appellee Blanton was well on his right hand side of the road, and as he saw the automobile of appellant Miller coming toward him over the hill, traveling on Blanton's half -- Miller's left-hand side of the highway -- said appellee made an unsuccessful effort to avoid the collision by driving his automobile farther to the right.

When persons living near by reached the scene the abnormal condition of appellant Miller was apparent. One of these testified that Miller's breath smelled of liquor, and that his tongue seemed to be thick. Another witness noticed the liquor on his breath and said that he staggered when he tried to walk. This witness expressed the opinion that Miller was drunk. Uncertainty about his condition was removed by the testimony of Miller himself. He testified that during a few hours before he left Mena he had consumed "four or five highballs" and that he was "half drunk." He admitted that he was on the wrong side of the road when his car struck appellee's automobile, and could give no reason whatever for driving over this hill on his left-hand side of the highway.

In the absence of proof of malice or willfulness, before punitive damages may be awarded, it must be shown that there was on the part of the tortfeasor a "wanton disregard of the rights and safety of others." Texarkana Gas & Electric Light Company v. Orr, 59 Ark. 215, 27 S.W. 66, 43 Am. St. Rep. 30.

Was there in the instant case substantial testimony to justify the finding of the jury that appellant, Miller, was guilty of this "wanton disregard of the rights and safety of others"?

The evidence showed that Miller, after drinking intoxicating liquor to the extent that his talk and his walk were noticeably affected, and to the extent that, according to his own statement, he was "half drunk," entered his car and sought to drive it over an improved state highway. In doing this he violated the criminal laws of this state (§ 6707, Pope's Digest).

When Miller imbibed alcoholic liquor he knew that he was taking into his stomach a substance that would stupefy his senses, retard his muscular and nervous reaction, and impair, if not destroy, the perfect coordination of eye, brain and muscles that is essential to safe driving. After Miller voluntarily rendered himself unfit to operate a car properly he undertook to drive his automobile, a potentially lethal machine, down a well traveled highway. His conduct in doing this was distinctly anti-social, and the jury was amply authorized in saying by their verdict that he was exhibiting a "wanton disregard of the rights and safety of others."

Appellants strongly rely on the opinion in the case of Strauss v. Buckley, 20 Cal.App.2d 7, 65 P.2d 1352, in which the California District Court of Appeals reversed, as excessive, a judgment for injuries growing out of an automobile collision. The court stated that the large amount of the verdict might be accounted for only on the theory that frequent reference to the drunken condition of the defendant had aroused the passion and prejudice of the jury. It does not appear that punitive damages were sought in that case, but the court did express the view that such damages were not recoverable because of the drunken condition of the driver, basing this declaration on the theory that the drunkenness was "an offense in itself for which punishment may be imposed in the ordinary course of law." The fallacy of this reasoning is apparent. Under this theory punitive damages might not be recovered for a felonious assault, no matter how cruel or malicious or wanton, because a punishment for the act was provided by the criminal statutes.

The majority rule in this country is at variance with the reasoning upon which the California court, in the Strauss case, based its opinion. The general rule is that the fact that the act complained of is a violation of the criminal laws will not bar recovery of punitive damages by the injured party. 25 C. J. S. 719. "According to the weight of authority, however, recovery of exemplary or punitive damages will not be denied merely because the wrongful act upon which the action is based may be or has been punished criminally." 15 Am. Jur. 711.

The Supreme Court of California, in the case of Bundy v. Maginess, 76 Cal. 532, 18 P. 668, held (Headnote 2): "In an action for assault and battery, the fact that defendant had previously been punished, criminally, for the assault is not a bar to the recovery of exemplary damages for the same offense."

We think this language of the Supreme Court of Arizona, in sustaining (in the case of Ross v. Clark, 35 Ariz. 60, 274 P. 639) recovery of punitive damages against a drunken driver, whose car had collided with that of the injured parties, appropriate here: "As to the punitive damages, we do not think them too large, nor do we think them unjustified by the facts. . . . The evidence as to the defendant's condition at the time is in dispute. . . . The jury must have believed that he was intoxicated. The evidence tends to show he was driving at a reckless speed, with little control of his car. The traffic at the place and time was heavy, and for safety of himself and others demanded careful driving. It is made a criminal offense for a person to drive an automobile on the public highways of this state while in an intoxicated condition. The jury fixed the defendant's penalty pretty high, but we think the example and warning to drunken or intoxicated operators of automobiles just and wholesome and that it should not be disturbed by us."

Appellant Miller testified that a charge of "reckless driving" was filed against him as a result of this collision and that he pleaded guilty to this charge. The offense of "reckless driving" is thus defined by § 6708, Pope's Digest: "Any person who drives any vehicle in such a manner as to indicate either a willful or a wanton disregard for the safety of persons or property is guilty of reckless driving." This testimony as to appellant's plea of guilty was competent as showing a deliberate declaration against interest by said appellant. 20 Am. Jur. 545. It therefore appears that the said appellant formally admitted that on the occasion of appellees' injury he was guilty of the very conduct that, under the rule laid down in all the decisions, authorizes the imposition of punitive damages.

It is argued by appellant, Columbia Pictures Corporation, that punitive damages against it were not recoverable because there was no proof that it participated in, authorized, or ratified, Miller's wrongful conduct.

There are jurisdictions in which it is held that exemplary damages may not be recovered against the employer for a tort of the employee in the absence of proof that the employer participated in, authorized, or ratified, the wrongful act.

But in most jurisdictions, "exemplary or punitive damages may be recovered from an employer for acts or omissions of his employee done or omitted to be done in the scope and course of his employment whenever the employee's acts are of such character as to form the basis for an allowance of exemplary damages, even though these acts were done without the employee's [employer's] knowledge or authorization and were not subsequently ratified by him regardless of whether he did or did not know the servant to be incompetent or disqualified for the service in which he was engaged." 15 Am. Jur. 732. Arkansas is shown in annotation to this text as being one of the states in which this rule is in force, our decisions in the case of St. L. I. M. & S. R. Co. v. Wilson, 70 Ark. 136, 66 S.W. 661, 91 Am. St. Rep. 74, and in the case of Texarkana Gas & E. L. Co. v. Orr, 59 Ark. 215, 27 S.W. 66, 43 Am. St. Rep. 30, being cited. In the last cited case this question was not specifically discussed but the court upheld a verdict against a corporation for punitive damages in favor of the estate of one who had been killed by a "live" electric power wire which had been permitted by the employees of...