Wheeler v. Bennett, 92-1149

CourtSupreme Court of Arkansas
Citation312 Ark. 411,849 S.W.2d 952
Docket NumberNo. 92-1149,92-1149
PartiesTina WHEELER, Appellant, v. Martha BENNETT, Appellee.
Decision Date29 March 1993

R. Kenny McCullough, Little Rock, for appellant.

William Gary Holt and James Gerard Schulze, Little Rock, for appellee.

GLAZE, Justice.

On May 5, 1990, the appellant, Tina Wheeler, failed to see and ran a stop sign located at the corner of Mitchell and Thompson streets in Conway, Arkansas, and collided with the vehicle driven by appellee, Martha Bennett. Bennett sustained injuries to her lower back and neck. Ms. Wheeler was on her way to an aerobics class and was driving a pick-up truck owned by her father's business, Wheeler Construction Company. Mrs. Bennett initially filed respective negligence and vicarious liability claims against Tina Wheeler and her father, Bob Wheeler d/b/a Wheeler Construction Company. Bennett sought recovery for permanent injury, loss of earning capacity, past and future medical expenses, and past and future pain, suffering and mental anguish. The Wheelers answered denying all allegations and asserting comparative fault. Bennett subsequently took Ms. Wheeler's deposition and discovered Ms. Wheeler had had two accidents and had received three speeding tickets all in the preceding four years. Bennett then amended her complaint by substituting the vicarious liability claim with one alleging Ms. Wheeler was reckless and that Bob Wheeler was guilty of negligent entrustment. The Wheelers again answered denying these new allegations.

Prior to trial, Bob Wheeler filed a motion for summary judgment as to the negligent entrustment claim. In addition, Ms. Wheeler filed two pretrial motions seeking to exclude certain evidence from being introduced at trial. The trial court denied both Wheelers' requests.

At trial and upon conclusion of Bennett's case-in-chief, the judge directed two verdicts. First, the judge dismissed Bennett's negligent entrustment claim against Bob Wheeler. Second, he granted Bennett's directed verdict finding Ms. Wheeler had breached her duty to exercise ordinary care. The judge then submitted only the issues of proximate cause and damage to the jury. The jury returned a general verdict assessing Mrs. Bennett's damages at $100,000.

Ms. Wheeler appeals contending the trial judge committed error in (1) directing a verdict against her on the issue of negligence, (2) denying her motions in limine, (3) allowing the testimony of eyewitness Jeff Johnston, and (4) denying her motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, in that the damages awarded were unsupported by the evidence and were excessive. We affirm upon condition that appellee accept a remittitur.

We first address whether the trial judge committed error by directing a verdict for Mrs. Bennett on the issue of Wheeler's negligence. This court has consistently reaffirmed the holding that it is for the jury in a comparative negligence case to determine the negligence of each party. Baker v. Matthews, 241 Ark. 539, 408 S.W.2d 889 (1966). However, we have also adopted the rule that the issue should be taken from the jury "when the proof of one party is so clear, convincing and irrefutable that no other conclusion could be reached by reasonable men." Spink v. Mourton, 235 Ark. 919, 362 S.W.2d 665 (1962); Morton v. American Medical International, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985); See also, Williams v. Carr, et al., 263 Ark. 326, 565 S.W.2d 400 (1978), and Young v. Johnson, 311 Ark. 551, 845 S.W.2d 510 (1993).

It is key to note that those cases involved issues of negligence. Moreover, the following language from the Spink opinion is especially appropriate to the case at bar:

Thus, no matter how strong the evidence of a party, who has the burden of establishing negligence and proximate cause as facts, may comparatively seem to be, he is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise.

Spink, 235 Ark. at 922, 362 S.W.2d at 667, citing United States Fire Ins. Co. v. Milner Hotels, 253 F.2d 542 (8th Cir.1958). Similarly, as we said in Woodmen of the World Life Ins. Soc. v. Reese, 206 Ark. 530, 176 S.W.2d 708 (1943):

A verdict upon an issue of fact should not be directed in favor of the party who has the burden of proof with respect thereto, unless such fact is admitted, or is established by the undisputed testimony of one or more disinterested witnesses and different minds cannot reasonably draw different conclusions from such testimony.

In presenting her case to the jury, Bennett called Tina Wheeler to the witness stand and elicited the two following statements from her: (1) She had admitted to the police officer at the scene that she had run the stop sign, and (2) she admitted that Bennett had done nothing to contribute to the accident. Although this testimony had the effect of affirmatively proving negligence on Ms. Wheeler's part, it had the greater and more critical impact of conceding the collision was in no way the fault of Bennett. Other evidence did not contradict Wheeler's admissions or concessions. Because Wheeler conceded all fault was hers, the trial judge was correct in directing a verdict for Bennett.

Our determination that the trial judge did not err in directing a verdict on the issue of Ms. Wheeler's negligence renders moot, for lack of prejudice, other contentions raised by appellant. In this respect, Ms. Wheeler argues the trial court erred when it allowed fifteen-year-old Jeff Johnston to give his opinion concerning the speed of Tina Wheeler's vehicle when it impacted Bennett's vehicle. Johnston's testimony reflected only on the issue of Ms. Wheeler's negligence and liability concerning the accident, and that issue was correctly disposed of by the trial court's granting Bennett's directed verdict. Wheeler was at fault. Thus, even if Johnson's testimony was inadmissible, no prejudice ensued and reversible error did not occur. Peoples Bank & Trust v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986).

Ms. Wheeler also argued the trial court erred in failing to exclude documented evidence that she had been involved in two wrecks and had received three speeding tickets since she obtained her driver's license some four years earlier. This evidence was introduced to prove Bennett's claim of negligent entrustment against Bob Wheeler--which claim was dismissed before this case went to the jury. In short, Wheeler argues that, although the trial court eventually dismissed the negligent entrustment claim, the evidence already introduced to support the claim was before the jury and was highly prejudicial to Ms. Wheeler's case. First, we reiterate that the trial court not only dismissed the negligent entrustment claim, but also it directed a verdict finding Ms. Wheeler at fault. Second, Wheeler simply fails to show how Ms. Wheeler's prior driving record actually prejudiced her case. Clearly, it was her burden to prove prejudice resulted from any inadmissible evidence. Id. Ms. Wheeler simply has not demonstrated how any inadmissible evidence bearing on the resolved liability issues affected the damages rendered against her.

Ms. Wheeler next contends that the trial judge erred in refusing to exclude (1) any reference or testimony to plaintiff's alleged loss-of-earning capacity, and (2) any reference to or admission of post-accident expenses incurred by Bennett for medical treatment related to chest pains which Wheeler claims were unrelated to the accident.

We first address the loss-of-earning capacity contention. Wheeler specifically argues that the trial judge erred in admitting evidence of loss of earning capacity because Bennett failed to show with reasonable certainty that the injuries she suffered were permanent, and that unless there is such testimony the court should not let the jury assess any damages for permanent injury. Missouri Pacific Transportation Co. v. Kinney, 199 Ark. 512, 135 S.W.2d 56 (1939). A permanent injury is one that deprives the plaintiff of his right to live his life in comfort and ease without added inconvenience or diminution of physical vigor. Adkins v. Kelley, 244 Ark. 199, 424 S.W.2d 373 (1968). It is well recognized that impairment-of-earning capacity is recoverable only upon proof that an injury is permanent. Henry Woods, Earning Capacity as Elements of Danger in Personal Injury Litigation, 18 Ark.L.Rev. 304, 305 n. 12 (1965); Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983). Further, whether a permanent injury exists must not be left up to speculation and conjecture on the part of the jury. Handy Dan Home Improvement Center, Inc. v. Peters, 286 Ark. 102, 689 S.W.2d 551 (1985).

Wheeler first argues that no "permanent injury" per se exists in this case because none of the physicians who treated Bennett ever assigned her a numerical "impairment rating." No such rating is required. Review of our cases that address this subject sufficiently illustrate that the failure to assign an impairment rating in no way wholly precludes an injured person from recovering damages for permanent injuries or loss of earning capacity. See Matthews v. Rodgers, 279 Ark. 328, 335, 651 S.W.2d 453 (1983); Belford v. Humphrey, 244 Ark. 211, 424 S.W.2d 526 (1968).

Wheeler further argues that, even if assignment of an impairment rating is unnecessary to recover for loss-of-earning capacity, Bennett failed to meet her burden of proving a permanent injury with reasonable certainty because there was insufficient proof of an objective injury. We disagree.

Tina Wheeler herself stated immediately after the collision that Bennett exclaimed, "My back hurts. I'm in pain." Further, the emergency room records show that Bennett had a bulging disc in the lower lumbar area of her spine. That evidence was corroborated by the MRI (Magnetic...

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