{ "id": 1869779, "name": "Earnest VICKERY and HBC/AG CARRIERS, INC. v. John Paul BALLENTINE and Raymond BALLANTINE, as Personal Representatives of the Estate of Ralph B. BALLANTINE, Deceased", "name_abbreviation": "Vickery v. Ballentine", "decision_date": "1987-07-13", "docket_number": "87-64", "first_page": "54", "last_page": "58", "citations": [ { "type": "official", "cite": "293 Ark. 54" }, { "type": "parallel", "cite": "732 S.W.2d 160" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "263 Ark. 326", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672651 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0326-01" ] }, { "cite": "292 Ark. 491", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871410 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/292/0491-01" ] }, { "cite": "234 Ark. 347", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1688453 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/ark/234/0347-01" ] }, { "cite": "543 F. Supp. 348", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3482469 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/f-supp/543/0348-01" ] }, { "cite": "510 F. Supp. 238", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3239762 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/f-supp/510/0238-01" ] }, { "cite": "146 S.W. 482", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1912, "opinion_index": 0 }, { "cite": "103 Ark. 361", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1352017 ], "year": 1912, "opinion_index": 0, "case_paths": [ "/ark/103/0361-01" ] }, { "cite": "209 S.W. 69", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1919, "opinion_index": 0 }, { "cite": "137 Ark. 341", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1568008 ], "year": 1919, "opinion_index": 0, "case_paths": [ "/ark/137/0341-01" ] }, { "cite": "235 Ark. 641", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1684820 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/ark/235/0641-01" ] }, { "cite": "35 Ark. L. Rev. 294", "category": "journals:journal", "reporter": "Ark. L. Rev.", "year": 1981, "pin_cites": [ { "page": "304" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 628, "char_count": 9631, "ocr_confidence": 0.883, "pagerank": { "raw": 7.93055129719381e-08, "percentile": 0.46188136837321403 }, "sha256": "a2480243f3e59b0b0fa9f741fa5ea41a51be0a73f2cf30c6d05c2411420343cc", "simhash": "1:b446585e2f846fba", "word_count": 1580 }, "last_updated": "2023-07-14T18:33:58.592079+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hickman, J., concurs and would not decide the first issue." ], "parties": [ "Earnest VICKERY and HBC/AG CARRIERS, INC. v. John Paul BALLENTINE and Raymond BALLANTINE, as Personal Representatives of the Estate of Ralph B. BALLANTINE, Deceased" ], "opinions": [ { "text": "Tom Glaze, Justice.\nAppellant Earnest Vickery, an employee of appellant HBC/AG Carriers, Inc., was driving a tractor-trailer rig on August 29,1983, when his truck jackknifed on a wet Highway 71 in Washington County and collided with the automobile in which Ralph B. Ballentine was riding. Ballentine died as a result of injuries suffered in the accident, and appellees, representatives of Ballentine\u2019s estate, filed suit against appellants for Ballentine\u2019s wrongful death. Appellees sought damages for Ralph\u2019s pain, suffering and mental anguish prior to his death, and his medical, funeral and related expenses in the amount of $1.5 million; $600,000 for the decedent\u2019s heirs\u2019 mental anguish; and $1 million for the reduction in pecuniary value of the decedent\u2019s estate. They also requested punitive damages in the amount of $ 1 million.\nAppellants admitted liability for compensatory damages, and after a two-day trial in October 1986, the jury returned a verdict in favor of the estate for $32,520.00 in compensatory damages and $50,000 in punitive damages. Appellants appeal the award of punitive damages.\nFor their first point, appellants argue that Arkansas\u2019s wrongful death statute, Ark. Stat. Ann. \u00a7 27-906 (Repl. 1979), does not provide for the award of punitive damages. Section 27-906 and its companion law on damages, Ark. Stat. Ann. \u00a7 27-909 (Repl. 1979), provide in pertinent part as follows:\n\u00a7 27-906. Whenever the death of a person shall be caused by a wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then,. . ., the person who, or company, or corporation which would have been liable if death had ensued shall be liable to an action for damages, notwithstanding the death of the person injured . . .\n\u00a7 27-909. The jury, or the Court in cases tried without a jury, may fix such damages as will be fair and just compensation for the pecuniary injuries, including a spouse\u2019s loss of the services and companionship of a deceased spouse and/or mental anguish resulting from such death, to the surviving spouse and next of kin of such deceased person.\nAppellants argue that, because our wrongful death provisions are laws enacted in derogation of common law, those laws should not be construed to impose a liability that is not clearly expressed. While the argument and logic offered by appellants has met with some success in other jurisdictions, it has little basis for support in this state. See Comment, The Arkansas Wrongful Death Statute, 35 Ark. L. Rev. 294, 304 (1981); see also, G. Holthus, Punitive Damages in Wrongful Death, 20 Clev. St. L. R. 301 (1971).\nWhile this court has not, until now, directly addressed the issue of whether punitive damages are recoverable in wrongful death actions, we have sub silentio approved such awards on a number of occasions. See Mode v. Barnett, 235 Ark. 641, 361 S.W.2d 525 (1962), Chicago Mill & Lumber Co. v. Bryeans, 137 Ark. 341, 209 S.W. 69 (1919), and St. Louis, Iron Mountain & Southern Railway v. Robertson, 103 Ark. 361, 146 S.W. 482 (1912). We note, too, with approval, the recent federal district court case of Fields v. Huff, 510 F. Supp. 238 (E. D. Ark. 1981), which supports the appellees\u2019 argument here that punitive damages are recoverable. In Fields, Judge Woods ruled that Arkansas law would support punitive damages in wrongful death actions, and, in excellent fashion, he sets out the history of this state\u2019s Survival and Wrongful Death Acts and correctly analyzes this court\u2019s cases decided under those laws. See also Brown v. Missouri Pacific Railroad, 543 F. Supp. 348 (W. D. Ark. 1982).\nIn view of the language employed in this state\u2019s wrongful death provisions and the treatment afforded them by this court\u2019s case law, we have no hesitancy in holding that punitive damages are recoverable in such actions. Clearly, an injured party may recover punitive damages as a consequence of a wrongdoer\u2019s willful and wanton, tortious conduct. The purpose of our wrongful death laws is to allow an injured person\u2019s action and claim for damages to survive, notwithstanding the person\u2019s death. A fortiori, the surviving beneficiaries of the decedent, killed as a result of such tortious conduct, are entitled to recover those punitive damages the decedent would have recovered had he or she lived. We would note further the purpose of punitive damages is not to compensate the injured party but to impose a monetary penalty on the defendant and to discourage others from similar behavior. See Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961). That purpose is unquestionably the same whether the injured person lives or dies as a result of defendant\u2019s willful or wanton conduct. In fact, in such situations where a death ensues, it may be argued plausibly that punitive damages, considering their deterrent effect, are more readily justified.\nWe now consider appellants\u2019 other two points for reversal: (1) that there was insufficient evidence to submit the issue of damages to the jury and (2) that the trial court erred in admitting into evidence certain hospital records regarding appellant Vickery\u2019s history of drug abuse. Appellants are correct on both points.\nAppellees offered the hospital records concerning Vickery to establish he had a drug habit. Appellants raise several meritorious reasons why the records were inadmissible, but the most compelling one is that the proof of Vickery\u2019s history of drug abuse, if any, was never shown to predate or to occur at the time of the accident. The hospital records, bearing no name of the author, were dated July 19, 1985, or two years after the accident. The statements contained in those records reflect that Vickery admitted to a continued and extensive use of amphetamine pills but never reveals when such abuse occurred. For this reason alone, we must conclude the hospital records are not relevant and material and fail to support appellees\u2019 attempt to show Vickery suffered from a drug habit at the time of the accident; that being so, the records were unquestionably prejudicial upon their admission into evidence.\nRegarding the appellants\u2019 sufficiency-of-evidence argument, we most recently had the opportunity to review an award of punitive damages and the type or quantum of proof that is necessary to support such an award. See National By-Products, Inc. v. Searcy House Moving Co., 292 Ark. 491, 731 S.W.2d 194 (1987). There, this court reviewed our settled law pertaining to punitive damages. We stated that such damages are justified only when it is shown the negligent party knew, or had reason to believe, that his act of negligence was about to inflict injury, and that he continued in his course with a conscious indifference to the consequences, from which malice may be inferred. Although the appellants were clearly negligent in the instant case, the evidence falls short of the proof to show the willfullness or conscious indifference necessary to support an award of punitive damages. We should first note that the state trooper, James P. Baker, who investigated the accident, requested a blood alcohol test of the people involved in the accident. Baker testified that the test results reflected .000 on all of the parties, including Vickery; he related the drug screen of Vickery was negative, as well. The trooper said that he observed nothing to indicate that either alcohol or drugs played any part in causing the accident. Vickery denied the use of drugs prior to the time of the accident except some over-the-counter caffeine pills.\nAside from the appellees\u2019 failed attempt to show Vickery\u2019s connection with and use of drugs at the time of the accident, the record reflects Vickery\u2019s fault was a result of a substantial case of negligence. When viewing the relevant and admissible evidence in appellees\u2019 favor, the record shows that Vickery was aware, prior to the accident, of the dangers and treacherousness of Highway 71 north of Alma. Only minutes prior to the collision, another trucker had warned Vickery about Highway 71, telling him to \u201cbe alert\u201d as it is a \u201crough old highway.\u201d When Vickery left Alma in his 18-wheeler, it was misting and the road was slick. He admitted having seen a warning sign with 20 miles per hour on it, and said he \u201cbacked her (the truck) down\u201d to 20 or 21 miles per hour. Trooper Baker\u2019s opinion was that Vickery\u2019s truck was going at least 30 miles per hour at the time of impact and that the truck was going too fast for conditions. Baker said the truck was in the other or wrong lane when the impact occurred and the slide marks made by the truck measured 84 feet.\nAs previously stated, the evidence in this cause \u2014 even when viewed in the light most favorable to the appellees \u2014 cannot sustain an award of punitive damages. Therefore, the trial court\u2019s judgment must be modified accordingly.\nAffirmed as modified.\nHickman, J., concurs and would not decide the first issue.\nMore recently, in Williams v. Carr, 263 Ark. 326, 565 S.W.2d 400 (1978), we denied punitive damages in a wrongful death action, but did so only because no actual damages had been awarded as a necessary underpinning for an exemplary award.", "type": "majority", "author": "Tom Glaze, Justice." } ], "attorneys": [ "Davis, Cox & Wright, by: Constance G. Clark, for appellant.", "Shaw, Ledbetter, Hornberger, Cogbill & Arnold, for appellee." ], "corrections": "", "head_matter": "Earnest VICKERY and HBC/AG CARRIERS, INC. v. John Paul BALLENTINE and Raymond BALLANTINE, as Personal Representatives of the Estate of Ralph B. BALLANTINE, Deceased\n87-64\n732 S.W.2d 160\nSupreme Court of Arkansas\nOpinion delivered July 13, 1987\nDavis, Cox & Wright, by: Constance G. Clark, for appellant.\nShaw, Ledbetter, Hornberger, Cogbill & Arnold, for appellee." }, "file_name": "0054-01", "first_page_order": 82, "last_page_order": 86 }