*1 FORD, v. Richard Randall INC. WALT BENNETT
KECK
Steven R. for appellee. Special Justice. Walt Appellant, Foster, Jr., Vincent Ford, Inc., Bennett having completed on a warranty repairs Yugo Keck, automobile owned by Richard declined to surren- appellee, der the Yugo to Keck due to charges his refusal to rental for a pay substitute automobile him use while appellant provided his Yugo being was repaired. Keck sued for conversion of the Yugo, and the returned a against verdict for both appellant compensatory and punitive damages, from which appellant appeals. Appellant contends that the trial judge allowing erred in the introduction of certain evidence and in submitting the issue punitive damages to the the argues alternatively award was excessive. We affirm. October Keck purchased Yugo the automobile
from an automobile appellant, dealer. and other Mechanical defects immediately and Keck took it back to developed, on at least two repair occasions. Both times the Keck an provided automobile to use while the Yugo was being repaired. On the first occasion it is there no undisputed was charge for the substitute automobile. On the second occasion Keck testified he told representative of the dealer that he would be out of state for six eight weeks and he needed a “loaner” automobile to use Yugo while the being was He testified repaired. that he was told chargé there would be no “loaner” automobile. this On disputed testimony. both occa- sions Keck signed lease agreement form but he testified the form was blank when he signed it and that he was told the form was necessary only to waive liability insurance on the substitute automobile. When Keck returned to pick seven up Yugo December, demanded later, agents the dealer’s weeks late Upon $1,200 use of substitute automobile. in rent for rental, $360 calculated reduced to the demand was refusal to pay, been Yugo dealer contended the cover time which the he had not Keck testified to be picked up. and available repaired and he refused ready received notice prior rental, to pay of Keck’s refusal the reduced demand. Because pay its service Yugo declined to surrender the automobile keep would manager told Keck that appellant left dealership claimed. Keck until Keck paid foot. Yugo warranty were
It is that all undisputed nothing repairs, Keck owed the dealer repairs, *3 automobile did agreement form for the substitute lease being lien on the automobile grant not dealer possessory repaired. Yugo, to Keck’s claim for conversion response for rental on filed denial and counterclaimed general for Keck on the jury
the substitute automobile. The held $6,337.33 dam- counterclaim and awarded him in compensatory $25,000 the conversion claim. ages on regarding evidence introduced
Appellant contends at irrelevant Yugo the defects of the was attempts jury. the elements of inflamed the Rule 401 of the conversion and evidence” as Arkansas Rules of defines “relevant Evidence fact having “evidence to make the existence any tendency that is of the action more to the determination consequence the evidence.” or less than would be without probable probable for in issue directly counterclaim Appellant’s placed whether or not Keck had rental on the substitute agreed pay Yugo automobile. Keck that when he delivered testified on the he was told that the dealer repair initially second occasion give could not him a “loaner” vehicle but that a rental unit he had available. Keck testified that because all the problems had with the he was adamant with the dealer that was Yugo representa not for a rental car and that the dealer’s going pay agreed. problems tive the mechanical testimony concerning make version of the repair tended to attempts automobile, regarding including discussions substitute
427 unwillingness agree acquiescence pay dealers’ in Keck’s rental, more if had considered the issue than probable without knowing history prior problems experienced Keck. contends the evidence should have been
Appellant excluded under Rule 403 the of Evidence even of Arkansas Rules if it were court to relevant. Rule 403 the trial exclude permits substantially relevant its out evidence if value probative weighed other danger unfair prejudice specified considerations. The value balancing against the probative prejudice from evidence is judge, within the discretion the trial and his decision such a matter will not reversed absent Hart, abuse 294 discretion. Ark. 740 Simpson State, 61, 724 S.W.2d (1987); Wood v. 20 Ark. S.W.2d App. 183 (1987). The admission of the challenged evidence did not discretion, constitute an abuse and some of the testimony of was complained invited during cross-examination by appel lant’s counsel. next contends that the trial court erred in submit-
ting the issue of punitive damages to and that the jury’s award of punitive damages was by the evidence. unsupported Appellant does not argue the sufficiency of the evidence to establish liability willful conversion.
In Ford 201, 589 Motor Credit Co.v. Herring, S.W.2d (1979), *4 lender had financed the sale two pickup trucks and had peacefully repossessed the trucks upon the buyer’s default on monthly But payments. despite demand the lender had not promptly returned personal which was property stored in the trucks at the time of the the repossession. Upon debtor’s suit for conversion of the the awarded personalty, jury $2,000 in $17,000 actual damages and damages. The punitive appellant asserted that the trial court erred in the instructing jury regarding punitive force, damages since there was no evidence of or oppression, intimidation in connection with the repossession. This Court held:
Exemplary damages are
where there
an inten-
proper
tional violation of
v.
Kelly
another’s
to his
right
property.
McDonald,
Herring
award
damages
a punitive
the
evidence
sufficiency
uphold
v. O’Neal
automobile in Williams
for conversion
appellee’s
Inc.,
Ford,
362,
(1984).
The trial court instructed that Walt he “has the burden damages proving punitive course of conduct Bennett Ford intentionally pursued one of This instruction damage.” presented causing Civil 2d 2217 of conduct in AMI the two alternative descriptions an award (Revised) justify which can but not of the instruction objection was form Appellant’s the submission of rather to of evidence to sufficiency support jury. the issue of punitive Yugo even retaining conduct Appellant’s trial, the demand for surren thirteen months after through der, or other privilege without claim of mistake so, damages. The to do submissible issue on presents withheld concluded that could have reasonably with the intent of means of transportation, property, that he would causing damage him such inconvenience debt. of a questionable coerced into payment it was sued for continued of conduct even after this course conversion, filed a counterclaim legal obtained counsel and a finding is sufficient to support rental. evidence disputed *5 of damage. intent to cause alternative that the puni- contends in the
429
excessive,
tive award was
under the influence
given
passion
The
was motivated
prejudice.
issue whether
award
punitive
by
or
was submitted to the trial court
passion
prejudice
ain motion for new trial under Rule 59 of the Arkansas
Rules of Civil Procedure. The trial court denied the motion.
Considerable
given
fixing
discretion
punitive
damages in
amount
to the circumstances.
it deems appropriate
339, 343,
Brinkley
First National Bank
v.
668
282 Ark.
Frey,
533,
S.W.2d
536
(1984).
While the award
substantial, it is not so
as to indicate
great
influenced
by passion
prejudice. The amount of the
award is
evidence,
supported by substantial
including
relationship
between the
and the
parties
extent and duration
the appellant’s
exercise of dominion over the
and we
do not find
personalty,
excessiveunder the facts
evidence in the
presented, reviewing the
light
McGhee,
most favorable
v.
verdict. Schaeffer
113,
Whitehead,
Ark.
Affirmed.
Special joins Justice Sam Ed Gibson in this opinion. Glaze, J., concurs.
Special Justice Robert Jones, Jr., L. dissents. Purtle, Hays, Newbern, JJ., not participating. Justice, Glaze, Tom concurring. The dissent by Special Justice Robert L. Jones is well-reasoned and appears agree with assessment as law majority’s on when punitive damages can be imposed for conversion. Justice Jones seems with part the court based on the idea that the Richard appellee, Keck, had failed to meet burden proof show the appellant intentionally pursued course of conduct for the purpose causing Keck damage. support Justice Jones position, relates his review of the evidence as follows:
The conduct in question was the retention the appellant. undisputed evidence is that the retained appellee’s automobile for of collecting which it claimed to due from substitute appellee *6 the no that There was evidence presented
automobile. to retain right possession knew that it had no appellant no for There purpose. automobile that appellee’s to to cause for the want appellant evidence of motive was to collect Its motive damage appellee. only due, may and it have believed it believed to be charge it a to retain paid. automobile until it was had been undis- by If the evidence mentioned Justice Jones record, However, join I in his as I read would dissent. puted, of the that he Keck he told an testified that employee for “wanted it he was not paying understood that [‘loaner’] said, is have to because it car” and that the “You won’t employee said he never covered under Keck your Yugo warranty.” blank sign but did a lease agreed to lease a car from appellant insurance on the “loaner” declining form for the sole purpose would cover it. car since he had insurance that already major It clear to me that a conflict existed in appears course, if the given jury testimonies Of parties. opposing had never believed Keck’s have concluded he story, could Further, rent a could agreed appellant. car from the signed have inferred found that after Keck blank reasonably or “loaner,” lease on the form waive insurance liability lease employee improperly completed he Keck for rental never agreement thereby obligating payments agreed to pay. view, itself, submis- my testimony, by presents is
sible fact on the It not this question issue review, court’s duty, weigh credibility disregard issues Instead, obligation admissible evidence. this court’s deter- evi- mine whether the verdict substantial supported above, dence. In I with the light agree evidence noted in majority affirming for jury’s verdict this cause. Justice, L. This is an Jones, Jr., dissenting. Special
Robert action left his personal for conversion property. appellee with while was of the state for out agreement six weeks. A rental was introduced approximately in blank with signed in evidence which testified that he appellee understanding necessary only that the form was on the substitute automo- waiving insurance liability get bile. When the returned the substitute automobile appellee automobile, he was told that he could not have *7 his due on the substitute automobile until he the rental paid denied that was due. filed suit any automobile. He rental Appellee for for the rental conversion and counterclaimed appellant of alleged to be due. The the issue in favor resolved $6,337.33 damages and awarded him appellee compensatory $25,000.00 punitive damages. compensa- I would affirm as to the damages. and reverse tory damages as the punitive Ark. (1987) Code Ann. 18-45-201 for a provides posses- § sory lien for the by parts automobile for labor repairmen of repair an automobile. The effected on repairs appellee’s automobile were covered a warranty; under manufacturer’s therefore, there was no would amount due for which give rise to a is lien. There no lien possessory possessory provided automobile; under Arkansas law a for rental on substitute unpaid therefore, right had no to retain of possession appellee’s automobile and became for liable conversion. The award of the fair market of value at the of is time the conversion property the proper measure of compensatory
The instruction given the trial court on by punitive damages was as follows:
“In addition to damages any for actual loss compensatory that sustained, Richard Randall Keck have may asks for Ford, punitive damages from Walt Bennett Inc. Puni- tive damages may be imposed wrongdoer and punish deter others from similar In order conduct. to recover Ford, Walt Bennett Richard from Randall Keck has the burden that Walt Bennett proving Ford intentionally pursued course conduct for purpose causing You are not damage. to assess required Ford, Walt damages against Bennett but Inc. you do so if may justified added.) evidence.” (Emphasis AMI 2217 two provides alternative standards of conduct which may justify an award of punitive damages. The first is standard that the ought defendent knew or to have known in the light of the surrounding circumstances that conduct would he continued and that damage result in probably naturally of the conse- disregard in reckless such conduct with malice or stan- The second inferred. may from which malice quences a course intentionally pursued dard defendant The conduct damage. causing conduct purpose of automobile appellee’s was the retention of possession question that the appellant evidence undisputed appellant. automobile retained possession appellee’s for a be due from appellee rental which it claimed to collecting that the evidence presented substitute automobile. There no it no to retain right knew that no evidence of There was appellee’s purpose. damage to cause motive for the want charge to collect the Its motive was appellee. only due, had a believed to be and it have believed it may it was paid. retain automobile until *8 who is that holding majority person The effect of the right to legal withholds of another’s without property so, good faith believe though may honestly do even so, do may punished he has a nevertheless contrary award him for This against Ford, Rebsamen holding this in the case of Court Satterfield Inc., 181, 485 In order for (1972). S.W.2d are awarded against they to be whom proper, person willful, wanton or reckless must be of malice or act in such a guilty malice be inferred. disregard may from which consequences case, 185) at this (Satterfield, supra, In page that Walt Bennett instructed that Keck the burden of proving “for Ford withheld of Keck’s automobile malice). the evidence causing damage” (with my opinion, issue the jury. was insufficient to the submission justify malice, not on the The burden of proof plaintiff prove defendant lack prove of malice.