Robinson v. Robinson, 95-763

• Decision Date: 29 January 1996
• Docket Number: No. 95-763,95-763
• Citation: 323 Ark. 224,914 S.W.2d 292
• Parties: Harry G. ROBINSON, Jr. and Miriam Robinson, Appellants, v. Heather Renee ROBINSON, Appellee.
• Court: Arkansas Supreme Court

Page 292

914 S.W.2d 292

323 Ark. 224

Harry G. ROBINSON, Jr. and Miriam Robinson, Appellants, v. Heather Renee ROBINSON, Appellee.

No. 95-763.

Supreme Court of Arkansas.

Jan. 29, 1996.

Eddie N. Christian, Matthew Horan, Fort Smith, for appellants.

Sam Sexton, Jr., Fort Smith, for appellee.

CORBIN, Justice.

After a jury trial in the Sebastian County Circuit Court, appellants, Harry G. Robinson, Jr. and his spouse, Miriam Robinson, appeal the judgment in favor of their adult daughter, appellee, Heather Renee Robinson, in her suit against Mr. Robinson for willful, intentional and malicious acts of sexual abuse committed against appellee during her minority, and against Mrs. Robinson for negligence in failing to prevent the abuse. Jurisdiction is properly in this court pursuant to Ark.Sup.Ct.R. 1-2(a)(16). For the reasons stated below, we reverse the judgment against Mr. Robinson and remand for retrial, and we reverse and dismiss the action against Mrs. Robinson.

Reversal of judgment against Mrs. Robinson

Relying upon Attwood v. Estate of Attwood, 276 Ark. 230, 633 S.W.2d 366 (1982), appellants timely objected at trial to several instructions guiding the jury in its consideration of appellee's negligence claim against Mrs. Robinson. The basis for appellants' objection to the instructions was that, in the absence of willful and wanton conduct by Mrs. Robinson, appellee had no cause of action against her mother. The trial court stated that Mrs. Robinson's conduct testified to would be willful and wanton and overruled the objection, which appellants now renew on appeal.

In Attwood, this court held that a willful tort committed by a parent against his child was beyond the scope of the parental immunity doctrine, thus the doctrine did not preclude a child from suing his parent for willful and wanton conduct. However, the parental immunity doctrine, as announced in Rambo v. Rambo, 195 Ark. 832, 114 S.W.2d 468 (1938), does bar an unemancipated minor from maintaining an action for an involuntary tort against her parent. The parental immunity doctrine is based upon the rationale that to permit such a suit would interfere with the parent's authority over the child, thereby encouraging disobedience and interfering with family harmony. Attwood, 276 Ark. 230, 633 S.W.2d 366. The parental immunity doctrine is the law in this jurisdiction. Carpenter v. Bishop, 290 Ark. 424, 720 S.W.2d 299 (1986); Thomas v. Inmon, 268 Ark. 221, 594 S.W.2d 853 (1980). We hold that the doctrine is applicable on the facts of this case where, although appellee had attained her legal age when this action was commenced, she was an unemancipated minor at the time of the alleged tort. Attwood, 276 Ark. 230, 633 S.W.2d 366, n. 3 & accompanying text.

Negligence was the sole theory for the liability of Mrs. Robinson that was alleged in the complaint and upon which the jury was instructed. Appellee neither amended her complaint nor proffered any jury instruction as to willful and wanton conduct or any theory of intentional tort as an alternative theory of liability for Mrs. Robinson. Because the jury was not instructed on any theory of intentional tort as a basis for Mrs. Robinson's liability, we conclude that the jury's finding of liability was based on a theory of negligence, and, therefore, appellants have demonstrated prejudicial error. Carpenter, 290 Ark. 424, 720 S.W.2d 299; Thomas, 268 Ark. 221, 594 S.W.2d 853. On this point, we reverse the judgment against Mrs. Robinson and dismiss the action against her.

In light of our dismissal of the case against Mrs. Robinson, we address the remaining points of appeal only as regards the judgment against Mr. Robinson.

Reversal of judgment against Mr. Robinson

Mr. Robinson asserts several points of error as regards the form of the judgment, among them that the trial court erred in altering the damages award against him, from the verdict's award of a sum certain in a ten-year trust, subject to reversion in Mr. Robinson, to the final judgment's award of the sum certain outright. We agree and reverse the judgment against Mr. Robinson on this point.

The operative facts are as follows. The jury returned a separate verdict against Mr. Robinson that provided, in pertinent part:

We, the Jury, find in favor of Heather Renee Robinson Lineberry ¹ against defendant Harry Robinson, Jr., and fix damages at one-half of the $4,335.00 already owed, plus half court costs and attorney's fees, and Twelve Thousand Five Hundred ($12,500.00) in a trust fund for psychological and psychiatric therapy, which must be used in ten (10) years or the money goes back to Harry Robinson court-appointed trust.

In addition, the jury awarded punitive damages against Mr. Robinson in the amount of $20,000.00. After the verdict was read, the record reflects that the trial court inquired of the jury if it intended that a trust fund be set up for appellee for her psychiatric-type bills, and that the jurors nodded affirmatively.

The trial court's judgment provided, in pertinent part:

Based upon such Verdicts, the Court finds that it was the manifest intention of the Jury to compensate the Plaintiff for past and future medical expenses, for costs and attorneys fees, and to award punitive damages. The Court further finds, however, that the Jury had no authority to impose a trust upon the future medical expenses and lacked authority to award attorneys fees.

....

The Court further finds that Plaintiff, Heather Renee Robinson, should have and recover of and from the separate Defendant, Harry G. Robinson, Jr., the sum and amount of $34,667.50.

In addition, the judgment added the amount of $1,000.00 in previously-imposed and unpaid sanctions to the judgment against Mr. Robinson, individually, and awarded costs against both appellants, jointly and severally, in the amount of $977.25.

It is well-established that the jury is the judge of the question of the amount of damages as well as of the question of liability. Womack v. Brickell, 232 Ark. 385, 337 S.W.2d 655 (1960); Arkansas-Louisiana Gas Co. v. Campbell, 203 Ark. 307, 156 S.W.2d 255 (1941). Nonetheless, in fashioning the judgment, " 'the court has the power to put a manifestly irregular or defective verdict in such form as to make it conform to the intention of the jury, and carry their findings into effect, where the intention can be ascertained with certainty.' " Trailmobile v. Robinson, 227 Ark. 915, 925, 302 S.W.2d 786, 792 (1957) (quoting, with approval, Vol. 89, Corpus Juris Secundum, 198); accord Traylor v. Huntsman, 253 Ark. 704, 488 S.W.2d 30 (1972). The trial court is not authorized, however, to invade the province of the jury by substituting its conclusion as to a material matter. Trailmobile, 227 Ark. 915, 302 S.W.2d 786.

In this case, the jury effectively...