*1 legitimate say fifteen had a age Swaffar at adopted. Surely, Billy Yet, the decedent. his in he wished to be adopted whether at in was not obtained. Nor was he writing present consent 1, 1977, on March to voice his hearing on the adoption petition of his consent in the And no mention was made opinion. court decide his fate under order. Can the interlocutory probate such We do not think so. circumstances? decree of a argument any

We are aware of the court should be valid probate regarding adoptions presumed with The most statutory requirements. impas in all compliance advocate of this was Justice Frank Smith his petition sioned Minetree, But, again, dissent in Minetree v. consent of supra, statute, must not be the one to be adopted, required, Swaffar’s Billy There is no reference in the order presumed. consent, that it and no written evidence of record was obtained. this, jurisdiction lacking, Because of court was probate order was void. adoption Affirmed. Dorado,

NATIONAL (of BANK OF COMMERCE El Arkansas), as Conservator of the (Only) Jerry Estate

Wayne Yancey Janice His Wife v. The Yancey, COMPANY, Inc., McNEILL TRUCKING et al. 91-215 828 S.W.2d 584

Supreme Court of Arkansas delivered Opinion April *2 Davidson, Bob for appellant.

Walter A. for Murray, appellee. Jr., Chief Justice. The issues in this case revolve Holt, Jack around the damages of awarded adequacy by the trial court on behalf of Jerry Yancey, injured who was in an automobile accident caused by The McNeill appellee, Trucking Com- pany, (McNeill). Inc. 29,1989,

On September the van driven Mr. by Yancey hit from behind by a semi-truck driven a McNeill by employee. accident, At the scene of the a McNeill representative assumed full corporate for the responsibility accident to the investigating officers. police The appellant, National Bank of Commerce (Bank), filed suit against McNeill for and damages then re- quested a non-suit without prejudice as to the liability insurance carrier. Ultimately, the trial court declared a mistrial as a result of Mr. Yancey’s counsel’s actions before the jury; parties however, stipulated, to a bench trial in order to continue the trial. 7,1991, On March the trial court filed its findings fact and law; conclusions of it found that liability for the accident was admitted by McNeill $5,558.61 and awarded the Bank for $5,335.20 medical expenses, $2,000.00 for lost wages, and and pain suffering. No award was made for loss of consortium or for punitive damages, and all other claims were dismissed.

The Bank filed a trial, motion for review or for a new which was denied the trial by court. The Bank now asserts three points error on appeal: 1) the trial court erred in disallowing any damages heart, for the 2) the trial court erred in disregarding

83 admissions, own well as the McNeill’s testimony, undisputed attempt justify video utilizing tapes and surveillance 3) the trial damages, as to rulings arbitrary unsupported disallowing damages. in punitive court erred to the disallowance argument relating The Bank’s first we for the heart is reverse any persuasive, remand the of the trial court. judgment of the recov 59(a),

Under A.R.C.P. the inadequacy error. In ground is a for a new trial even in the absence of other ery Pettit, 245, Ark. (1989) (citing Smith v. 778 S.W.2d 616 Liebhaver, (1983)), 281 Ark. S.W.2d we Warner v. alleged reiterated that when the issue is the primary inadequacy award, rather than a will sustain the liability, we question trial court’s denial of a new trial unless there is a clear and manifest abuse of discretion. An consideration this important review is whether a fair-minded have fixed jury might reasonably Also, the award at the challenged reviewing finding amount. court, of fact a trial we consider the evidence and all reasonable inferences therefrom in a to the light most favorable Cash, appellee. 298 Ark. 767 S.W.2d 517 Jernigan case, In this the trial court held in its of fact and findings 29, 1989, conclusions of law “. . . on September Jerry strain, Yancey sustained a back proximately caused *4 accident, bills, for which he was caused to incur medical lose months, wages and suffer for pain a of no more than six period 29,1990. 29, not later than March . . . March Expenses beyond 1990, disallowed, are as are those to the relating heart.” The Bank initially asserts that the trial court erred in disallowing any damages for the heart. 29,1989,

The accident occurred on September at which time Mr. was Yancey treated at the of Arkansas Medical University (UAMS) Center room for emergency musculoskeletal Mr. pain; Buford, then went to Yancey Dr. Joe a family practitioner, next day of soreness in his lower abdomen complaining and back. returned to Dr. Yancey Buford on October 2 and 4 with the same at no did complaint; time Mr. of Yancey chest complain pain heart trouble. Mr. Apparently, went to the UAMS on Yancey 10, him; October where an EKG was on the results performed in nature and not indicated that the was pain muscular/pectoral related to the heart muscle. Grimes,

On October Mr. went to see Dr. Austin Yancey time, his At that surgeon, attorney. an at the orthopedic request Dr. noted Mr. lumbar Yancey’s complaint being Grimes for his back. When Mr. began Yancey related and treatment Dr. returned to Dr. Grimes’s office on November he told Grimes that he had chest on both sides. As Mr. was pain Yancey he Dr. Grimes to the had responding therapy prescribed, wanted to treat Mr. with a transcutaneous electrical Yancey unit, (T.E.N.S.) nerve stimulator but did not want to prescribe Mr. cardiologist unit until had been checked out a Yancey by because the unit could a heart condition. aggravate

Dr. Grimes referred Mr. to the Center in UAMS Yancey Rock, Little where he was treated a trauma Dr. by specialist, John on Cone. Based Mr. statements and Dr. Yancey’s history, Cone a exam on him and determined that performed physical “there greater is a than chance that he has fifty percent cos- tochondritis inflammatory cartilages that involvesthe process [an adjoin that the ribs and the breast Dr. Cone then referred bone].” him to the cardiology for further evaluation. Mr. department 4, 1990, Yancey was from 2 to hospitalized January January Bissett, Dr. Joe a cardiologist, for an echocardiogram coronary angiogram, the test results of which were normal.

The Bank 1) that the trial essentially argues court was affected after adversely reviewing McNeill’s surveillance tapes Mr. him Yancey depicted performing variety physical activity inconsistent with his claim of and total permanent 2) that the disability, heart-related were within expenses the trial court’s six 3) month cut-off period, Mr. Yancey referred for treatment and testing treating his heart his physicians.

McNeill presented surveillance video into evidence tapes that showed Mr. Yancey engaging activities that he physical claimed i.e., he was incapable overhead arm performing, extension, lifting heavy objects, bending, twisting. stooping, *5 McNeill also evidence that Mr. presented Yancey had a prior fact, condition of heart pain; notation in his medical records reflected “a long history dyspeptic including heart- symptoms milk.” Dr. burn, antacid and by All relieved epigastric pain. Wilson, that Mr. Yan- testified Winston a clinical psychologist, of his exaggeration symptoms, to prone was a cey hypochondriac relied. his treating physicians recitation of which upon Mr. did not see a Yancey specialist also out that points McNeill accident. until after the forty-five days for his chest pains that Mr. Yancey The evidence in the record shows examina of chest at his October 11 pains orthopedic complained that Dr. Grimes’s Dr. Grimes. The record is clear very tion with unit, might which cure help decision to him on theT.E.N.S. place back, heart, not his was the motivation for Mr. Yancey’s surgeon an cardiologist. referral to a Dr. Grimes is orthopedic aggravate knew T.E.N.S. unit could a preexisting who that the long medical showed a heart condition. Mr. records Yancey’s and, whether real or history dyspeptic symptoms hypochondri acal, had to be the documented of a heart condition possibility to conditions caused the accident. by order treat the explored There is no to the of Dr. Grimes challenge propriety the use of the T.E.N.S. unit as treatment for the back prescribing fact, that was attributed to this accident. In Dr. Grimes’s pain treatment, the six-month including during administered court, as limited the trial was used as a basis recovery period by Cone, for the award of all other While it is true that Dr. damages. the trauma first listened to Mr. and later specialist, Yancey reviewed his to conclude that there was a history possibility costochondritis, the initial referral was Dr. Grimes’s triggered by determination that the T.E.N.S. unit was warranted. Even if led an in the hypochondriasis exaggeration symptoms history provided to Dr. Cone Mr. it is clear that Mr. Yancey, did not seek out treatment to a heart condition but Yancey related rather was referred to ensure that the orthopedist preferred treatment for the sustained in accident would not injuries aggravate another condition. The referral to the subsequent desire cardiologist must also be attributed to Dr. Grimes and his Mr. on the T.E.N.S. unit. place Yancey viewing light after the facts in the most Consequently, McNeill, favorable to we find that the record supports only conclusion that the incurred as a result of Dr. Grimes’s charges the T.E.N.S. unit resulted from the accident. decision to utilize *6 the trial court erred in Accordingly, disallowing the medical attributable to Mr. expenses heart examina- Yancey’s Liebhaber, Warner tions. Compare supra. (The parties were accident; involved in an automobile injured the party incurred $ 12,285.00, medical expenses 100,000 $ and sought recovery $1,500 for personal injuries and damages. The property defendants admitted but liability, the awarded the jury only $2,500. injured party from the plaintiff trial court’s appealed denial of her motion for a new trial on the issue of the single of the verdict. inadequacy We affirmed the of the award adequacy on two bases: 1) the could jury have found that the was plaintiff collision, seriously injured the 2) could jury have — found that the plaintiffs items of principal damage medical — expenses were not fairly attributable to whatever back she pain may suffered.) have

The Bank also claims that the trial court erred in disregarding undisputed testimony, as well as McNeill’s own admissions, and utilizing surveillance video tapes attempt to justify arbitrary unsupported as to rulings damages. Again, this argument is governed the same by standard of review as the Bank’s first of error. The point Bank presented testimony Mr. Yancey’s treating physicians physical as to the therapist extent of his injuries. McNeill three presented surveillance videos that belied this and showed testimony Mr. Yancey performing physical activities supposedly beyond i.e., his capabilities, heavy bending, stooping, lifting, and twisting. Consequently, the Bank’s testimony hardly undisputed.

The Bank’s reference in its brief to “McNeill’s own admis- sions” in this of error point misinterprets content and context of the proceedings in the record with regard to this claim. The Bank attempts characterize the dialogue among counsel and the court as one relating to the issue of when malingering, in fact the point related to an objection as to the cumulative use of hypothetical questions. argument This is of no since consequence McNeill’s focus was that Mr. Yancey suffered from hypochon- driasis and exaggerated his complaints.

Additionally, Dr. Grimes stated that one could expect to recover from an injury such as Mr. Yancey’s in four to six Therefore, months. the six month cut-off period justified is have easily could witness, jury fair-minded and a Bank’s own all, testimony presented or portions, disbelieved were not medical costs Mr. Yancey’s all of Bank and found that sum, In vehicle. with McNeill’s to the accident attributable *7 bills medical other than damages court’s assessment trial not a heart was of Mr. Yancey’s the examination relating to v. Graphics, See Gilbert abuse of discretion. manifest Diversified (1985). S.W.2d 169 286 Ark. 691 remand, Bank’s will also discuss the we For purposes disallowing punitive trial court erred assertion that Ark. 760 Mackey, Missouri Pac. R.R. damages. In are only (1988), punitive S.W.2d 59 we stated such conscious or with wantonly when the defendant acts justified be acts that malice may of his indifference to the consequences inferred; an award of justify will not gross, however negligence, damages. punitive introduce evidence

The Bank unsuccessfully attempted at some drugs had used employees that McNeill’s maintenance their and there was no direct evidence during point employment, on the drugs job. had used they Bank’s assertion that McNeill knew that it The tandem on the dangerous to allow a bobtail semi-truck operate was not for and we decline to address highway appeal, preserved record, argument it. After examination of the we find that this and, brief, was not alluded to the Bank in its although pled trial court as a basis for the argument was not this apprised Ark. Bank’s claim of Pearrow v. damages. Feagin, punitive 274, 778, S.W.2d 941 sum, no that McNeill

In there was evidence simply use, disregarded the alleged drug recklessly knew of the or which be inferred to support from malice could consequences claim of damages. punitive judgment

The of the trial court is reversed and remanded retrial on damages. the issue of compensatory

Dudley JJ., concur. Glaze, Hays JJ., Brown, dissent. Justice, I in the concurring. H. concur Dudley,

Robert result reached by majority write to set opinion separately out two issues procedural involving damages that I punitive hope will be before us in someday brought an adversarial manner. below, The appellant, plaintiff argues that he should have been awarded punitive damages because the the defend- appellee, ant trucking trailer, company, operated its tractor without a and a tractor without a trailer cannot be within a stopped safe distance. The contends appellant trucking that the knew of this company danger and in order to yet, profit, operated tractor without a and, result, trailer aas direct the driver was unable to stop tractor, and it struck and injured the appellant. argument was not preserved for appeal lends itself to this since opinion we do not decide it on the merits.

Our common law authorizes the assessment punitive, punishment, damages against a wrongdoer as a ofway furthering *8 governmental our interests of deterring willful and wanton tortious conduct. These damages for punishment are awarded directly to the rather private plaintiff, than to the government, as are fines when the criminal law is used to advance similar governmental interests.

This court cautious, has traditionally been very perhaps so, about overly affirming in punitive damages vehicle accident cases. We have held that there was the substantial requisite evidence of willful and wanton misconduct in two only classes of cases; vehicle accident (1) when the defendant driver was see, drunk, drinking, or Walden, or using drugs, e.g., Honeycutt v. 440, 294 Ark. 743 S.W.2d 809 (1988), (2) when the see, Rosewarren, defendant was racing, Turner v. e.g., 250 Ark. 119, 464 S.W.2d (1971). hand, 569 On the other we have held that driving 65 to 70 miles hour on per loose gravel was not sufficient evidence of willful and wanton conduct. Edwards v. Jeffers, 204 Ark. 400, 162 S.W.2d 472 (1942). We have held that punitive damages not be may assessed against an individual who is involved in a hit and run Anderson, accident. Freeman v. 279 282, Ark. 651 S.W.2d 450 (1983). We have said that evidence that a defendant was driving between 55 and 70 miles hour in per a 45 miles hour zone on per a wet street was not sufficient evidence of willful and wanton Meux, misconduct. Lawrence v. 282 Ark. 512, 669 S.W.2d (1984). 464 We affirmed a directed verdict for a

89 his father allowed case when a wrongful a death in defendant car, only and the child drove his to drive daughter fifteen-year-old a speed approxi- but reached position, 559 feet from a parked intersection, killed the hour, entered an mately 50 miles per S.W.2d 901 Thomas, 222 Ark. Steward v. plaintiff. in damages we to award 3). recently, punitive More declined (19 5 at driven being that truck case that involved an overloaded a properly its brakes had been even speed though an excessive Searcy Moving v. House Inc. By-Products, National maintained. Co., Inc., As last (1987). a 731 S.W.2d 292 Ark. in a case damages we an award punitive reversed example, so highway right-of-way on the where truck was parked Pi Zeta Chapter Alpha could relieve themselves. passengers Sullivan, 576, 740 293 Ark. S.W.2d Alpha Fraternity Kappa or involving drinking the cases We have said that conduct, all wanton” but racing “willful and drugs exemplify In we only “gross negligence.” summary, others demonstrate automobile defining a clear line those types have drawn I will be affirmed. accident cases in which punitive is trial in the State judge every lawyer assume that trial every familiar with this line. ask might

The reader of this at this opinion point pause Case, even if what the result would have been this the appellant be had been a tractor a trailer could not able to without prove distance, trucking safe and that the defendant within a stopped fact, trucking defendant was aware of such and that the company drive of its employees order directed one company, profit, some destination and enroute the tractor without trailer to *9 occurred, and because the injured solely accident the plaintiff obvious, is be The answer and it raises tractor could not stopped. which I we will be asked to address: significant hope the issue the Does such a result accommodate and advance adequately and, It interests involved? is a difficult governmental proposition it, in of our the opinions, before and defense exploring perhaps at the have parties reader should in mind that interests keep of damages stake in a case are not punitive equal. purpose interests; not award is to vindicate the damages punitive public is only a to the a plaintiff windfall. The windfall plaintiff side, result. On the other a defendant is secondary punished punishment The word denotes damages. “punitive” punitive wrongdoing. Our have used the words opinions “exemplary wrongdoer. which means to make an If damages” example awarded, damages are the defendant suffers punitive improperly far more than if plaintiff give does fails to jury incorrectly him a windfall.

Our cases have drawn a clear line that is meritorious for the goal of judicial advancing but meretricious for consistency, governmental of interests willful and deliberate tor preventing it, tious conduct. We have drawn in part, according to nature of solely the tort on the nature of the wrongdoer’s tortious damages conduct. Punitive and the affirmance of damages those ought to be solely based on the nature of the tortfeasor’s conduct. said, See AMI 2217. We have boundary gross between “[T]he negligence and conduct can be characterized as willful and wanton . is indistinct. . .” Zeta Pi Alpha Kappa Chapter of Sullivan, 576, Fraternity 585, Alpha 293 Ark. 740 S.W.2d 127, 132 but, (1987), if we were today change the nature our of review begin conduct, to look solely wrongdoer’s at the there that, is more, the worrisome without prospect something many the routine automobile accident cases might become subject to the uncontrolled damages, award punitive and the worthwhile governmental purposes punitive damages would be undermined.

Punitive damages in Arkansas serve the desirable proper governmental retribution, interests of deterrence and Thomas Co., Auto Inc. v. Craft, 297 Ark. (1989), S.W.2d 651 and if they are only occasionally awarded are they not effective. Brown, McClellan v. 276 Ark. 632 S.W.2d In fact, we reversed an award of punitive damages in McClellan v. Brown, supra,, in part, they because were not regularly awarded and, result, of case type as a we did not think would they have a deterrent effect. Punitive damages designed are to make a person or corporation internalize the cost of willful and tortious conduct and However, act if a accordingly. fact finder were to make an award of damages punitive based upon sympathy prejudice, being subject review, without to meaningful there deterrence, would be a danger of excessive public conception automobile lotteries, accident damage cases as govern- mental doubt, interests would be undermined. Without uncon- trolled awards of punitive automobile accident cases

91 Likewise, the govern- interests. governmental would serve damages if well served punitive would not be mental interests awarded, In never affirmed. and, almost if were seldom awarded deterrence, and I suspect too little there would be such a situation best sum, interests are governmental In that is our plight. balance correctly awards that allowing punitive served wanton willful and deter adequately in order to risks competing tortious conduct. Searcy Inc. v. By-Products,

Since the case National Co., for a about the need I have supra, thought House Moving accident cases. automobile involving clear line change in our the issue. writers have addressed jurisdictions legal Other determined that The Court Wisconsin has Supreme a be best served governmental by requiring plaintiff interests can the standard of clear or wanton misconduct prove willful Co., v. Motor evidence. Ford convincing Wangen School of Law University N.W.2d 437 Alabama (1980). on symposium Law Review sponsored and the Alabama writers leading punitive damages many presented 40 Ala. L. subject. Damages, articles on the Punitive Symposium, this basis of (1989). provides part Rev. 687 An article Wheeler, Case Re is M. E. The Constitutional opinion for Procedures, Va. L. Rev. 269 Punitive forming Damage (1983).

Given the we should consider opportunity, changing standard for to the standard of damages evidentiary punitive convincing clear and evidence. There are a number of reasons such a Jurors fill their to decide cases change. obligation try them, and a according given to the instructions clear would more convincing evidentiary standard cause them to be damages hesitant to circum- impose punitive inappropriate stances, might and it dampen any sympathy prejudice. Punitive aré as a form of and the damages imposed punishment, higher evidentiary standard is more like the standard evidentiary all, used for cases. After dam- punitive criminal punishment Court ages Supreme are like criminal for the enough punishment to have whether bar damages subsequent considered punitive Rex Co. criminal trial under the double Trailer jeopardy concept. States, We have said that punitive United U.S. 148 law, Shamrock Corp. are not a favorite of the Diamond *11 and, since (1974), they 256 Ark. 511 S.W.2d 160 Phillips, favorite, not would seem more higher are the standard appropri- convincing for the ate. The clear and standard would compensate and, imbalance between the risks of the correspondingly, parties, there is no sound reason to a defendant to bear the require greater risk of preponderance the the evidence standard. The higher evidentiary governmental standard would further interests by avoiding excessive deterrence or erroneous in the punishment unjustified damages. form of punitive standard, the With clear an court convincing appellate alone, could draw the clear line on the conduct tortfeasor’s on not the of automobile type accident. Judicial review would be with more accomplished considerably confidence. An appellate that, be court would more to hold if likely plaintiff- the established the defendant, conduct on the of the the requisite part decision whether to award damages entirely jury’s within the punitive discretion should be In way, affirmed. this the worthwhile purposes punitive damages would be accommodated and advanced.

A second considered, be procedural change to and one that easily could be adapted from criminal would procedure, be bifurcation of damages trials. punitive procedural change This would the trial of permit issues punitive damages only after jury had rendered a verdict on and had liability awarded compensatory damages. would not jury hear evidence on issues, punitive damages wealth, including defendant’s until it had first found and awarded liability compensatory relief. Again, governmental interests be would advanced. The procedure would reduce the risk that inflammatory punitive damages evidence would cause the jury resolve improperly liability against and, issues the defendant if the higher eviden- tiary standard were it would eliminate adopted, the likelihood of confusion arising from applying one standard of evidence for compensatory damages and another standard for the punitive addition, damages. In if appellate an court found error in the trial, punitive damages it phase could reverse only for phase retrial. While this discusses opinion only automobile cases, accident the same procedures necessarily would be applica- trials, ble to all punitive damages including, example, prod- ucts liability against manufacturers, cases cases malpractice against newspa- doctors, defamation cases against lawyers or broadcasters. pers accident in automobile clear line our summary, present

In advance and adequately accommodate does fully cases I cases. in punitive involved interests governmental in this opinion discussed changes the possible hope would *12 manner, with in an adversarial before this court brought be might balancing sides, consider might so the court on that briefs both It is a interests. governmental to further the risks in order the addressed. we have never matter which with Glaze, Justice, majority the concurring. agree I Tom in not mentioned considerations goes, as far as it but other opinion this case. No dispute warrant the reversal of the also opinion chest after experienced pains exists over the fact that appellant Inc.) semi-tractor (McNeill Trucking Company, appellee’s mentioned in the lower vehicle from behind. As appellant’s struck was chest origin cause of findings, appellant’s pains court’s the those were concluded ultimately pains in and the court question, however, does not resolve finding, unrelated to the accident. That whether is to medical expenses the issue as to entitled appellant he incurred in to the pains experienced order insure appellant by the were due to a cardiac contusion caused after accident a the from having his wheel as result of steering impact hit McNeill’s semi-tractor. chest Dr. Austin paints,

Because of appellant’s complaint Grimes, refused a TENS surgeon, an to administer orthopedic A unit cardiologist. unit on him he was a TENS by until checked Grimes was shown aggravated could have a heart condition. took appellees of the surveillance which the excerpts tape had not appellant he still adhered to his belief that appellant, but exaggerated injuries. or faked the extent his Bissett, Dr. cardiologist, Joe a evaluated appellant a justified seeing cardiologist stated that the was appellant chest that a cardiac contusion could occur regarding his pain involved during an like the one in which was appellant accident Cone, Dr. a steering where wheel hit him in the chest. John who related had taken paramedics, trauma specialist, accident, noted the room after the appellant emergency to Cone, steering damaged. vehicle had been appellant’s wheel see Dr. evaluating suggested after Bissett appellant, appellant any injury. rule out cardiac or is not

Whether is appellant hypochondriac, appellees assert, is not determinative of entitlement to medical appellant’s treating incurred as the result of advice him his expenses given no doctors. offered medical evidence to refute the Appellees doctors’ testimonies that indicated further evaluation was needed to assure chest were not due to a appellant’s pains heart condition. Wilson, did Appellees present Dr. Winston clinical psycholo- gist, who testified the suffered from appellant hypochondriasis. But Wilson he further added that could not testify as condition. appellant’s physical case,

The appellees admitted liability this and the court $5,558.61 $5,335.20 awarded appellant for medical for expenses, $2,000.00 lost wages and pain suffering. Clearly, these awarding damages, trial court acknowledged the even, appellant injured as a result of negligence appellees’ *13 though to show appellees attempted otherwise surveillance tapes taken of after the appellant accident.

Once the trial court decided the appellant’s injuries resulted from appellees’ negligence, was then entitled all appellant to reasonable expenses Here, for any necessary medical treatment. appellees offered absolutely no evidence to show appellant’s cardiology treatment unnecessary. was To the all contrary, medical evidence showed such treatment was required.

While the trial court found appellant’s chest pains were to accident, unrelated tortfeasors, as appellees, must take their victim they 8, as find him. Clawson v. Rye, 281 Ark. 661 S.W.2d (1983). 354 The physical medical evidence reflect appellant experienced chest both pains before and after the accident, and before Dr. Grimes dared treat appellant’s orthope- needs, dic Grimes that he opined had rule out any heart possible problems might have. Dr. appellant Bissett related such evaluations were justified under these circumstances. None these factors indicating a need medical for the evaluation appellant’s heart is in material any way negated offset or appellees’ surveillance tapes. reasons,

For the above I agree the case should be reversed

95 and remanded. submit I Hays, Justice, dissenting. respectfully

Steele mistaken on a new trial for a this judgment reverses majority medical experts of some testimony because assumption fact-finder, to judge, the trial on it was incumbent undisputed, testimony law. The is not the That such evidence. accept on the binding is not experts, of other like that medical experts, The fact- seem. might evidence fact-finder, reliable such however testimony or any part all reject may accept finder Byrd, v.Co. Telegraph Union The Western witnesses. expert when “Even (1938). 569 Adm’x., 122 S.W.2d Ark. 197 no their opinions concur in experts several competent offered, is still bound the jury is evidence expert opposing Union Western judgment.” fair its own upon decide the issue 97, 77 Turner, S.W.2d 190 Ark. v. Telegraph Company did not accept trial in this case judge It is clear the with incurred in connection that the expenses medical opinion to the initial were attributable cardiac Yancey’s complaints Mr. The injuries. of other treatment subsequent trauma or to the should be affirmed. judgment J.,

Brown, in this dissent. joins Justice, dissenting. majority’s L. Brown, Robert to 1983. See that extends back decision overturns a line of cases Nestle-Beich, Inc., 158, 817 S.W.2d 889 307 Ark. Kratzke v. Hall, (1988); 759 S.W.2d v. 296 Ark. (1991); Hacker Polite, 514, 712 S.W.2d Warner (1986); 289 Ark. Thigpen v. so, Liebhaver, 118, 661 doing (1983). By S.W.2d 399 281 Ark. *14 been decided issue that had previously the decision an opens up a case-by-case to resolution on again and the matter once subjects basis. above, with Warner beginning

The adduced authority Liebhaver, fact may that the trier of for the stands proposition award witness and any the of testimony choose to disbelieve of as the trier judge That is what the trial damages accordingly. however, takes this majority, did in the case before us. The fact the winds. It then usurps casts it to the four and precedent and decide weigh testimony to by proceeding factfinder’s role Yancey’s of cardiac legitimacy expenses. There is a firm basis for the trial decision to judge’s reject admits, these Dr. Grimes did expenses. majority As the not refer cardiologist to a until after the Yancey six weeks accident and then about chest only Yancey’s because of statements and paints as a to a safety measure back treatment transcutane- prefatory ous judge electrical nerve stimulator. The trial could well have chosen to disbelieve the of authenticity Yancey’s complaint, and it was that for Dr. catalyst was the Grimes’s complaint out, to cardiologist. referral a As it turned there was no injury heartburn, the heart. Yancey history had of was a hypochon- driac, and was to exaggeration. The mere fact that Dr. prone Grimes referred to a him out of an cardiologist abundance caution is not sufficient reason to reverse the decision by the trier of fact.

The Warner v. Liebhaver case involved a woman who sought $100,000 injuries $1,500 for personal damage for property resulting $12,285 from an automobile accident. She had medical $2,500, The expenses. jury awarded her total and the trial judge denied her a new motion for trial. Analyzing record, we held that the could have jury reasonably found that Mrs. Warner was not and that her seriously injured medical expenses were not fairly attributable to whatever back she pain may that, have of her suffered. One doctors although testified she had undergone surgery accident, three months before her problem primarily psychological. treating A psychiatrist indicated that the accident had existing become the focus for her circumstances, emotional conflicts. Under the we held that there was no abuse of discretion. Pettit,

In Smith v. claimed supra, appellant damages for back, permanent injuries his neck and loss of earnings and earning capacity, and future past suffering, pain past asserted, future medical which expenses, he were the conse- quences an automobile wreck. awarded jury only him $1,711.64, the amount of his medical bills. Reviewing the evidence, we observed that Smith has missed no work because accident; he had been involved in three other automobile collisions; he had fallen previously off he telephone pole; situation; suffered from stress associated with a new employment

97 of these On the basis improve. continued to his condition no of discretion factors, there was abuse we held that other trial. denial a new court’s trial Nestle-Beich, Inc., case, medical a 1991 supra, v. In Kratzke claimed, verdict was $47,060.12 jury’s were expenses Warner, have could $2,000. jury we concluded Citing to preexisting were attributable that medical expenses decided “The mere We said: not to an accident. causes and automobile the appellant been incurred expenses medical have fact that do liability has admitted fact the appellee and the additional damage award equivalent translate into automatically 160, S.W.2d at 890. 307 at 817 Ark. expenses.” those case, the trier of fact trial judge sitting In the present of the of the witnesses and credibility judge was the sole Didion, Ark. Takeya 294 their See v. give testimony. weight decision, has majority, The its 745 S.W.2d obtaining itself into that role for purpose insinuated is to lend of this decision result. consequence desired stability. to an area of the law that cries for instability decisions and affirm past I would heed to our pay of the trial judgment judge. J.,

Hays, joins. Eugene GRIFFIN Henry Beverly NIEMEYER Griffin Joann 826 S.W.2d 91-311 Court of Arkansas Supreme April delivered Opinion