{ "id": 1872680, "name": "MIDWEST BUSLINES, INC. and Kenneth GLOSEMEYER v. Samuel JOHNSON", "name_abbreviation": "Midwest Buslines, Inc. v. Johnson", "decision_date": "1987-02-23", "docket_number": "86-185", "first_page": "304", "last_page": "309", "citations": [ { "type": "official", "cite": "291 Ark. 304" }, { "type": "parallel", "cite": "724 S.W.2d 453" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "85 S.W. 428", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1905, "opinion_index": 0 }, { "cite": "74 Ark. 256", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720049 ], "year": 1905, "opinion_index": 0, "case_paths": [ "/ark/74/0256-01" ] }, { "cite": "252 Ark. 586", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1629925 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "589" }, { "page": "571" } ], "opinion_index": 0, "case_paths": [ "/ark/252/0586-01" ] }, { "cite": "291 Ark. 180", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872592 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0180-01" ] }, { "cite": "199 Ark. 820", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1456596 ], "weight": 2, "year": 1940, "opinion_index": 0, "case_paths": [ "/ark/199/0820-01" ] }, { "cite": "25 S.W.2d 428", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1930, "opinion_index": 0 }, { "cite": "181 Ark. 137", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719086 ], "year": 1930, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/ark/181/0137-01" ] } ], "analysis": { "cardinality": 543, "char_count": 8954, "ocr_confidence": 0.928, "pagerank": { "raw": 6.074653979085205e-08, "percentile": 0.37516318518956127 }, "sha256": "fb9c7eb4db81d7b55257bc010d8f8fb956ddf93776180ec3dd5a299c26658ae0", "simhash": "1:ad29d28ba236953e", "word_count": 1467 }, "last_updated": "2023-07-14T18:26:32.108459+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MIDWEST BUSLINES, INC. and Kenneth GLOSEMEYER v. Samuel JOHNSON" ], "opinions": [ { "text": "Tom Glaze, Justice.\nAppellants, Midwest Buslines, Inc. (Midwest) and Kenneth Glosemeyer, appeal from a jury verdict awarding appellee $500.00 compensatory and $1,100.00 punitive damages. The verdict resulted from appellee\u2019s claim that, as a passenger on Midwest\u2019s bus, he was wrongfully ejected by Midwest\u2019s driver, Glosemeyer. For reversal, appellants contend the trial court erred by (1) failing to grant a judgment n.o.v. as to both the compensatory and punitive damages and (2) failing to declare a mistrial for remarks made by appellee\u2019s counsel during closing argument.\nFirst, appellants claim that, as a matter of law, there was no substantial evidence upon which to submit the issue of compensatory damages to the jury and none to support the verdict it returned. Arkansas, appellants submit, has long held that, in the absence of showing physical injury, a recovery for mental suffering cannot be had in negligence actions. That being true, they conclude appellee is precluded from recovery here because he failed to show he suffered any physical injury, monetary or out-of-pocket damages, or pain, suffering, humiliation, distress or anguish.\nAppellants\u2019 recitation of the law is correct as far as it goes, but the so-called \u201cno impact\u201d rule in negligence actions has no application to willful and wanton wrongs, and those committed with the intention of causing mental distress and injured feelings. Wilson v. Wilkins, 181 Ark. 137, 139, 25 S.W.2d 428 (1930). In Wilson, the court said that mental suffering forms the proper element of damages in actions for willful and wanton wrongs and those committed with the intention of causing mental distress.\nThe case of Arkansas Motor Coaches, Ltd., Inc. v. Whitlock, 199 Ark. 820, 136 S.W.2d 184 (1940) is similar to the one at bar. There, Whitlock was awarded damages as a result of being wrongfully ejected from an Arkansas Motor Coaches bus, and, in sustaining that award, this court held that one could recover damages to compensate for mental anguish when that mental anguish is accompanied by constructive physical injury which may result from an actual restraint or coercion of the person. The court concluded that Whitlock suffered an actionable wrong for mental anguish when the bus driver, in evicting Whitlock from the bus, took his arm, led him from the bus and embarrassed him in front of the passengers.\nIn the instant case, the court instructed the jury that appellee was entitled to damages if it found the appellants had acted in a willful and wanton manner \u2014 an instruction and finding appellants say is not supported by the evidence. We disagree. Our standard of review, of course, is whether the verdict is supported by substantial evidence, giving the verdict the benefit of all reasonable inferences permissible under the proof. Schuster\u2019s, Inc. v. Whitehead, 291 Ark. 180, 722 S.W.2d 862 (1987). Much of the testimony given in this matter is in irreconcilable conflict. On the day in issue, appellee, then seventy-one years old, was discharged from the University Medical Center in Little Rock where he had been treated for gastrointestinal bleeding and alcoholic hepatitis. The parties agreed that, during his hospitalization, appellee had been incontinent, or unable to control the discharge \u00f3f his urine. The hospital apparently made arrangements for appellee to meet appellants\u2019 bus so he could go home to Bald Knob, and, when he left the hospital, he was wearing no shoes. Appellant bus driver, Glosemeyer, \u2014 having been placed on notice to expect a man (passenger) to come from the hospital \u2014 testified the appellee appeared and boarded the bus carrying a paper bag and wearing no shoes. Although the evidence seems clear that appellee did urinate on the bus en route to Bald Knob, the testimony is uncertain concerning whether appellee had urinated in his pants when seated or in a cup while he stood in the aisle. Appellee testified that he had been unable to \u201chold [his] water,\u201d and he could not get to the restroom in the back of the bus because there were people in the aisle. No one apparently complained about appellee, but Glosemeyer said he had heard a commotion, and looked back to see appellee in the aisle and passengers with \u201cfunny looks on their faces,\u201d looking at appellee and then at Glosemeyer. Glosemeyer claimed that when he arrived at Cabot, he confronted appellee, at which time his pants were unzipped with his penis exposed, and he was holding a paper bag containing a cup with liquid in it. Glosemeyer said he did not touch appellee when evicting him from the bus, although he \u201cprobably held his arm so he would not trip.\u201d In doing so, Glosemeyer denied saying anything to appellee. Appellee, in turn, claimed he was left by Glosemeyer on the side of the road, not at the station, and when he asked how he was to get home, Glosemeyer replied, \u201cI don\u2019t know, and I don\u2019t care.\u201d Appellee testified he became scared and nervous until the Cabot police found him and took him to the local police station. One passenger, who had been on the bus, testified that she saw no bus station where Glosemeyer evicted appellee, and, when she complained to Glosemeyer that appellee was sick and she hated to see him \u201cput off\u2019 the bus, Glosemeyer said, \u201cI don\u2019t care what it was.\u201d In sum, we believe the jury, in resolving the conflicts in appellee\u2019s favor, reasonably could have found that these circumstances did not warrant appellee\u2019s removal, and that the manner in which he was removed was willful, humiliating and embarrassing. Accordingly, we hold appellee\u2019s award of $500.00 in compensatory damages is supported by the evidence.\nIn addressing appellants\u2019 challenge of the punitive damages awarded appellee, we need not rehash the evidence just related. Appellants have detailed the evidence, but, in arguing it, reach a conclusion favorable to appellants that Glosemeyer had the duty to eject appellee from the bus arid that no reasonable mind could conclude otherwise. Considering the conflicting evidence and testimony and when viewing it in appellee\u2019s favor, we simply cannot agree.\nFor their final point for reversal, appellants complain that appellee\u2019s attorney, in closing argument, prejudiced the jury by alluding to the \u201cgolden rule,\u201d by requesting the jurors to \u201cput themselves in [appellee\u2019s] place\u201d and asking, \u201cWhat would you feel like if you had been treated that way?\u201d Appellants objected to counsel\u2019s remarks and requested a mistrial, which the trial court denied.\nIn Missouri Pacific Railroad Co. v. McDaniel, 252 Ark. 586, 589, 483 S.W.2d 569, 571 (1972), the court recounted the rule that such arguments, as made here, are improper, but it stated our standard of review in these matters as follows:\n\u201cWhen the ruling of the court is presented to the appellate court in proper manner, then it is the duty of the appellate court to look to the remarks, and weigh their probable effect upon the issues; then to the action of the trial court in dealing with them; and if the trial court has not properly eliminated their sinister effect, and they seem to have created prejudice, and likely produced a verdict not otherwise obtainable, then the appellate court should reverse. However, a wide range of discretion must be allowed the circuit judges in dealing with the subject, for they can best determine at the time the effect of unwarranted argument; but that discretion is not an arbitrary one, but that sound judicial discretion the exercise of which is a matter of review.\u201d (quoting Kansas City So. Ry. Co. v. Murphy, 74 Ark. 256, 85 S.W. 428 (1905)).\nIn our review of the record, we note appellants promptly objected to counsel\u2019s argument, and upon denial of their motion for mistrial, they requested no cautionary instruction to the jury. Indeed, the trial court, immediately before counsel\u2019s closing statement, already had instructed the jury that remarks during the trial and closing arguments of the attorneys are not evidence, and that any arguments, statements or remarks of attorneys having no basis in the evidence should be disregarded. After the trial court overruled appellants\u2019 motion, counsel for appellee made no further prejudicial reference and ended his argument with a six-sentence explanation of why appellee was entitled to damages. We believe the trial court was correct in ruling that any error caused by counsel\u2019s remarks did not warrant a mistrial.\nAffirmed.\nAppellants also suggest that, in the absence of physical injury, the appellee could only recover damages for mental anguish if he had pled and proved the tort of \u201coutrage.\u201d Based upon the facts of this case, we do not believe appellee was limited to such a theory.", "type": "majority", "author": "Tom Glaze, Justice." } ], "attorneys": [ "Saxton & Ayres, for appellants.", "Pickens & Watson, by: Ray A. Waters, Jr.; and Eldridge & Eldridge, by: John D. Eldridge, III, for appellee." ], "corrections": "", "head_matter": "MIDWEST BUSLINES, INC. and Kenneth GLOSEMEYER v. Samuel JOHNSON\n86-185\n724 S.W.2d 453\nSupreme Court of Arkansas\nOpinion delivered February 23, 1987\nSaxton & Ayres, for appellants.\nPickens & Watson, by: Ray A. Waters, Jr.; and Eldridge & Eldridge, by: John D. Eldridge, III, for appellee." }, "file_name": "0304-01", "first_page_order": 328, "last_page_order": 333 }