Warhurst v. White, 92-102

• Decision Date: 05 October 1992
• Docket Number: No. 92-102,92-102
• Citation: 838 S.W.2d 350,310 Ark. 546
• Parties: Jackie Kaye WARHURST, Appellant, v. William David WHITE, Sr., Administrator of the Estate of William David White, II, Jonathan T. Giles, a Minor, by Elizabeth Blayney, His Mother and Next Friend, and Thomas E. Blayney and Elizabeth Blayney, His Wife, Individually, Appellees.
• Court: Arkansas Supreme Court

Page 350

838 S.W.2d 350

310 Ark. 546

Jackie Kaye WARHURST, Appellant, v. William David WHITE, Sr., Administrator of the Estate of

William David White, II, Jonathan T. Giles, a Minor, by

Elizabeth Blayney, His Mother and Next Friend, and Thomas E.

Blayney and Elizabeth Blayney, His Wife, Individually, Appellees.

No. 92-102.

Supreme Court of Arkansas.

Oct. 5, 1992.

Jake Brick, West Memphis, for appellant.

Clint Saxton, West Memphis, for appellee.

GLAZE, Justice.

This wrongful death action was initiated by William White, as administrator of his son, David White's, estate against Jackie Warhurst. David was a passenger on Jonathan Giles' motorcycle when Warhurst backed her vehicle onto a street into the path of Giles' motorcycle. The two vehicles collided, causing David's death and Giles' injuries. Giles, a minor represented by his mother, also filed a claim against Warhurst. Both White and Giles sought punitive damages as well as compensatory damages because Warhurst was legally intoxicated at the time of this unfortunate incident.

At a jury trial, David's estate was awarded $510,000 compensatory and $500,000 punitive damages. Giles received a verdict of $40,000 compensatory and $500,000 punitive damages. The trial judge denied Warhurst's motion for a new trial. Afterwards, Warhurst's insurance carrier paid all of Giles' compensatory damages and $50,000 of David's compensatory damages. Warhurst now appeals the unpaid balance, challenging the damage amounts awarded by the jury.

Warhurst first argues the trial court erred by admitting into evidence four poems written by David's mother after his death. Warhurst also claims the trial court should have excluded from evidence a copy of a tombstone design containing words selected by his parents. Citing Toney v. Raines, 224 Ark. 692, 275 S.W.2d 771 (1955), Warhurst argues that generally a party cannot make evidence for himself by his own declarations, and it is a well-established rule that a statement of a party, whether oral or written, which is of a self-serving nature is not admissible in evidence in his favor. She further states the rule excluding self-serving declarations is a part of the hearsay rule, and its purpose is to prevent the manufacturing of evidence. In sum, Warhurst says the poems and tombstone epitaph were excludable hearsay which was both irrelevant and prejudicial.

Warhurst's argument ignores that David's estate sought damages for mental anguish, and accordingly, the jury was read twelve of the thirteen factors listed in AMI Instruction 2216, which the jury could consider when assessing compensation for mental anguish factors. Those factors particularly relevant here were the following:

(a) The duration and intimacy of the relationship and the ties of affection between the deceased and the survivor;

(b) The frequency of association and communication;

(c) The attitude of the deceased toward a survivor and a survivor toward a deceased;

(d) The duration and intensity of the sorrow and grief;

* * * * * *

(f) The violence and suddenness of the death.

In meeting its burden, David's estate utilized the state-of-mind hearsay exception rule, Ark.R.Evid. 803(3), to show David's parents' existing state of mind, emotion, sensation, or physical condition. Such exception has been recognized as being available to a plaintiff in a civil damage action as a means of establishing his or her mental anguish as an element of damages. D. Louisell and C. Mueller, Federal Evidence, § 441 (1980). It has been held that the self-serving nature of a declaration only goes to its weight, and not its admissibility. See United States v. DiMaria, 727 F.2d 265 (2d Cir.1984). We will not reverse a trial court's ruling on the admission of evidence absent abuse of discretion. Younts v. Baldor Electric Co., 310 Ark. 86, 832 S.W.2d 832 (1992). Here, the poems and epitaph presented by David's estate were admissible and relevant under Ark.R.Evid. Rule 803(3) on the mental anguish issue, and we cannot say that the trial court abused its discretion in allowing such evidence.

For her second point of reversal, Warhurst contends the trial court erred in allowing expert witnesses, testifying on Warhurst's blood alcohol level, to rely upon the breathalyzer test given her after the collision. The trial court had excluded from evidence the breathalyzer test, showing Warhurst's blood alcohol level at .13, because the officer's machine had not been properly calibrated. Although Warhurst argues she objected to the expert witnesses' reliance on the test, the record fails to support her contention.

Counsel for Warhurst moved in limine to exclude any testimony concerning the .13 breathalyzer test record made from testing Warhurst after the collision, but the trial court indicated it was inclined to allow such testimony. In finally ruling to allow such testimony, the following colloquy between the court and counsel took place:

White's counsel: I understand what the Court is saying. If you will look at the cases, it does say that the expert should be allowed to give what the basis of that is because otherwise it can be left out there--

The Court: The basis would be that they reviewed the test results.

Warhurst's counsel: As I understand the Court, I would have no argument with that if they will adhere to the fact that the test result should not be mentioned insofar as .13, and of course they would have to delete [it] from Mrs. Horne's deposition which is an evidentiary deposition--(emphasis added).

The experts, in giving their testimony, relied in part upon the...