Satterfield v. Rebsamen Ford, Inc.

• Decision Date: 09 October 1972
• Docket Number: No. 5--6006,5--6006
• Citation: 485 S.W.2d 192,253 Ark. 181
• Parties: Sandra K. SATTERFIELD, Appellant, v. REBSAMEN FORD, INC., Appellee.
• Court: Arkansas Supreme Court

Page 192

485 S.W.2d 192

253 Ark. 181

Sandra K. SATTERFIELD, Appellant, v. REBSAMEN FORD, INC., Appellee.

No. 5--6006.

Supreme Court of Arkansas.

Oct. 9, 1972.

R. David Lewis, Little Rock, for appellant.

Charles W. Baker, Little Rock, for appellee.

JONES, Justice.

This is an appeal by Sandra K. Satterfield from a judgment of the Pulaski County Circuit Court in favor of Rebsamen Ford, Inc. notwithstanding a jury verdict in favor of Sandra K. Satterfield.

The facts, as gathered primarily from the pleadings, indicate that on or about May 14, 1970, Sandra K. Satterfield purchased a Ford Fairlane automobile from Rebsamen Ford, Inc. through one of its salesmen, Lonnie Davis, for the agreed purchase price of.$3,760.72. Miss Satterfield traded in a 1967 Mustang automobile on the purchase of the Fairlane for an agreed credit of $511. She executed her note for the balance of the purchase price in the amount of $3,249.72, payable in 36 monthly installments of $90.27 commencing on June 25, 1970. It appears that Miss Satterfield was dissatisfied with the way the automobile drove on the highway and when it failed to pass safety inspection for the purpose of licensing within two months after she purchased it, she failed or refused to make the monthly payments so a replevin action was filed against her for repossession of the automobile.

Apparently Miss Satterfield did not resist the possessory action but she did file a counterclaim against Rebsamen Ford alleging that the salesman, Lonnie Davis, made false and fraudulent misrepresentations concerning the automobile she purchased, but it is difficult to determine from the transcript the exact status of the matter when it was finally tried in circuit court. Miss Satterfield's pleadings consist of ten pages numbered two through twelve and are styled answer, counterclaim and cross-complaint under two separate circuit court numbers. Under each separately designated 'cause of action' relief is prayed as 'set out below' and then there appears as a part of the answer, counterclaim and cross-complaint, a portion designated 'preliminary mandatory injunction' which indicates that Miss Satterfield may have originally filed a petition in chancery court in an attempt to restrain or enjoin the repossession of the automobile under replevin and the matter was transferred to the circuit court. In any event, the answer, counterclaim and cross-complaint conclude with a prayer for relief against Rebsamen Ford (designated as 'dealer') as follows:

'3. For fraud against dealer, compensatory damages in the amount of $3,660.72; for automobile and $2,000 for emotional distress.

4. For breach of express warranty against dealer compensatory damages in the amount of $3,660.72; for the contract damage for emotional distress in the amount of $2,000, and punitive damage in the amount of $5,000.

7. . . . for recision against dealer, the return of the consideration of $511, damages for emotional distress in the amount of $2,000 and punitive damage in the amount of $5,000.

8. For recision against dealer and return of the consideration in the amount of $511.'

Other elements of damage were alleged and prayed for including attorney's fees to be taxed as cost.

This case was tried before a jury which rendered a verdict for Miss Satterfield in the amount of $511 compensatory damage and $3,000 punitive damage. Rebsamen Ford filed a motion for judgment non obstante veredicto and the motion was granted. On her appeal to this court Miss Satterfield designated the points on which she relies for reversal as follows:

'The court erred in giving a judgment N.O.V. for the appellee.

The court erred in not giving attorney's fees to appellant's counsel.

Appellee should pay the cost resulting from its designation of additional parts of the record.'

We agree with the appellant on the first point so we find it unnecessary to discuss at length the other two points. The statutes of Arkansas make no provision for attorney's fees to be taxed as cost against a losing party in a case of this kind. See American Physicians Ins. Co. v. Hruska, 244 Ark. 1176, 428 S.W.2d 622; also Romer v. Leyner, 224 Ark. 884, 277 S.W.2d 66. As to appellant's third point, the record is still rather vague when we consider the portions designated by both parties, so we find no merit to appellant's contention under this point.

Returning now to the question of whether the trial court erred in rendering a judgment n.o.v. for the appellee, we are of the opinion that the jury verdict for the compensatory damage in the amount of $511 should stand, but that the punitive damages in the amount of $3,000 should not. The statutory authority for judgment notwithstanding a verdict is found in Ark Stat.Ann. § 29--111 (Repl.1962) which is as follows:

'Where, upon the statement in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so entered by the court, though a verdict has been found against such party.'

In Stanton v. Ark. Democrat Co., 194 Ark. 135, 106 S.W.2d 584, we approved the language in Scharff Distilling Co. v. Dennis, 113 Ark. 221, 168 S.W. 141, where it was stated:

". . . if there could be any warrant for such a judgment, not based solely upon matters appearing in the pleadings, or as disclosed by the record proper, the testimony justifying such verdict would have to be undisputed so that the court might declare, as a matter of law, that the party in whose favor the judgment was entered was entitled to it notwithstanding the verdict in favor of the other party."

In Stanton we continued:

'But the testimony in that case (Scharff v. Dennis) was not undisputed, and for that reason it was held improper to direct a verdict in favor of the party against whom a verdict had been rendered by the jury.'

It is now well settled in Arkansas that the test for granting a motion for judgment n.o.v. is the same as the test for granting a motion for a directed verdict, and that a trial court may enter a judgment n.o.v. the same as he may grant a motion for a directed verdict, if there is no substantial evidence to support the verdict. Baucom v. City of North Little Rock, 249 Ark. 848, 462 S.W.2d 229; Edwards v. Epperson & Son House Moving Co., 246 Ark. 194, 437 S.W.2d 480.

When we measure the evidence in the case at bar by the rules laid down in past decisions, we are of the opinion that the trial court was correct in entering judgment n.o.v. for the appellee as to the punitive damages but erred in entering such judgment as to the compensatory damages. Punitive damages may be imposed when the defendant acts with malice, Barlow v. Lowder, 35 Ark. 492 (1880), or with willfulness, wantonness, or conscious indifference to consequences from which malice may be inferred. St. Louis, I.M. & S. Ry. Co. v. Dysart, 89 Ark. 261, 116 S.W. 224 (1909); Choctaw O. & G. Rd. Co. v. Cantwell, 78 Ark. 331, 95 S.W. 771 (1906).

In the very recent case of Ray Dodge, Inc. v. Moore, 251 Ark. ---, 479 S.W.2d 518, a jury award of punitive damages was approved by this court under a concluding statement as follows:

'If, then, there was evidence tending to show...