Miller v. Blanton ( 1948 )

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 the power company to remain lying across a street for several hours. In the other case the court said: "The jury may have found that appellant [railroad company] was liable for compensatory damages . . . but it did not follow that because they so found they should find punitive damages on said ground, unless they should further find that the tort or wrong of the servant in the particular alleged was in the line of his employment, and was willful, wanton, or malicious."

In the case of Little Rock Ry. Electric Co. v. Dobbins, 78 Ark. 553, 95 S.W. 788, a street railway company sued by a passenger for damages arising from a forcible expulsion from a street car by the conductor asked the following instructions: "A street railway company is not liable in exemplary damages for the wrongful act of its employees in ejecting a passenger from its car, in the absence of proof of want of care in the selection of such employees and of authority given [by] it for the commission of the act, or ratification thereof after its commission." This court held that the refusal of the lower court to give this instruction was not error, the court's opinion being epitomized in headnote 1 thus: "A corporation, as distinguished from an individual, is liable in punitive damages for the malicious acts of its agents, done within the scope of their employment, although such acts were not ratified by it." While the language of the opinion referred only to corporations engaged as public carriers, the opinion was rested largely on this declaration of law by the Supreme Court of Mississippi in the case of Pullman Palace Car Co. v. Lawrence, 74 Miss. 782,22 So. 53: "It is argued that vindictive damages are in their nature penal, and that no one should be liable to punishment unless the act complained of is his own act, made so by his authorization or ratification of it when committed by the servant, and that it is illogical for the courts to do anything punitive in character unless the master is directly and personally responsible for the very act complained of. The sufficient answer to this contention is that the judge-made law of punitive damages is not the result of logic, but of public necessity, as text writers and courts have repeatedly shown. If corporations — artificial beings who can act only through agents and servants in their varied and multitudinous and constantly recurring business dealings with the public — can never be held liable in punitive damages for the acts of their servants unless expressly ratified by them, no matter how gross and outrageous the wrongful act of the servant, we feel perfectly safe in declaring that no recovery for more than mere compensatory damages will ever again be awarded against corporations. Corporations never expressly authorize their servants to beat or insult or outrage those having business relations with them, and they rarely ratify such conduct. Having by the constitution of their being to act solely by agents or servants, they must, as matter of sound public policy, be held liable for all the acts of their agents and servants who commit wrongs while performing the master's business and in the scope of their employment, and this to the extent of liability for punitive damages in proper cases." In the case of Little Rock Ry. Electric Co. v. Dobbins, supra, we said, as to this statement of the law by the Mississippi court: "This doctrine, although apparently in conflict with the decision of the Supreme Court of the United States, is supported by the majority of the States that have announced a rule upon the subject, and is in accord with our own views, as announced in several cases . . ."

In the case of Pine Bluff Arkansas River Railway Company v. Washington, 116 Ark. 179, 172 S.W. 872, Judge HART, speaking for the court, said: "This court has adopted what is usually called the rule of general liability, which has been defined as follows: ``A corporation may be held liable to exemplary or punitive damages for such acts done by its agents or servants acting within the scope of their employment as would if done by an individual acting for himself, render him liable for such damages. See case note to 48 L.R.A., N.S. p. 38.'"

The lower court did not err in submitting to the jury the question of the liability for punitive damages of the corporate defendant.

II. The testimony showed that appellee, Dorothy Blanton, was about five months advanced in pregnancy when she was injured; that she was rendered unconscious and had to be carried to a hospital; that the collision caused her to suffer with pains in her back, leg and hips, and from shortness of breath. We cannot say, as a matter of law, that the jury's allowance of $1,000 for her physical injury and pain and suffering was excessive.

The judgment is affirmed.