Miller v. Blanton , 213 Ark. 246 ( 1948 )

The testimony shows that appellant Miller was driving across the center line of the road when the collision occurred. This was in violation of the traffic laws, and sustains the finding of negligence and this is true whether Miller was drunk or sober. According to the undisputed testimony, Miller had been drinking, and he entered a plea of guilty to the charge of driving recklessly. But nothing more was shown. Miller was negligent, grossly so, when he drove his car while in an intoxicated condition. But the testimony shows nothing more. There is an entire absence of testimony showing willfulness or wantonness on his part.

The hill where the collision occurred is referred to as a blind hill. Neither of the cars, coming in opposite directions, could see the other until the crest of the hill had been reached, and the cars were within forty feet of each other before the driver of either car could see the other. Both cars were driving at a speed of about thirty-five miles per hour. The testimony as to the tracks of the respective cars shows that each, after discovering the presence of the other, attempted to avoid the collision. No one saw the collision except the occupants of the two cars, as there was no other traffic on the road at the time, coming from either direction. Because Miller was intoxicated the jury assessed punitive damages against him in favor of each of the plaintiffs, in the sum of $500. There was no other reason for doing so.

Cases on the subject as to when and under what circumstances punitive damages may be assessed are almost without number, and there are many of our own cases on the subject. I shall not review these cases, but will refer only to those which may be regarded as the leading cases which have been cited most often.

The first of these is the case of Kelly v. McDonald,39 Ark. 387, in which case Chief Justice ENGLISH said: "Exemplary damages ought not to be given, unless in case of intentional violation of another's right, or when a proper act is done with an excess of force or violence, or with malicious intent to injury another in his person or property."

On the authority of this McDonald case, Justice SANDELS said in the case of St. Louis, I. M. S. Railway Co. v. Hall, 53 Ark. 7, 13 S.W. 138: "The element of willfulness or conscious indifference to consequences, from which malice may be inferred, is lacking. The engineer of defendant appears to have occasioned the injury while in the performance of his duty. He is not shown to have acted otherwise than with a careless unconsciousness of plaintiff's possible danger." The judgment for punitive damages in that case was reversed for the reason just stated. Both of these cases have been frequently cited and followed, and in none of them has the law as declared in those opinions been questioned.

Another leading case on the subject is St. Louis, I. M. S. Ry. Co. v. Dysart, 89 Ark. 261, 116 S.W. 224. There a collision occurred between an Iron Mountain train and a train of the Frisco Railroad Co. at a surface crossing of the railroads in the town of Nettleton. Negligence more gross could hardly exist in any case. The opinion recites that the Iron Mountain train in violation of the operating rules of that company, ran upon the crossing without stopping, striking the Frisco train. Damages both compensatory and punitive were awarded. The judgment for compensatory damages was affirmed; the judgment for punitive damages was reversed and dismissed. It was there said: "There is much contrariety of opinion among the authorities as to what is essential in order to justify an infliction of punitive or exemplary damages. But this court is firmly committed to the doctrine that negligence alone, however, gross, is not sufficient, and that there must be an added element of intentional wrong, or, what is its equivalent, conscious indifference in the face of discovered peril, from which malice may be inferred." (Citing cases) it was there further said: "The terms `wilfulness, or conscious indifference to consequences from which malice may be inferred,' as used in the decisions of this court, means such conduct in the face of discovered peril. In other words, in order to superadd this element of damages by way of punishment, it must appear that 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 will be inferred." Here the undisputed evidence is that as soon as Miller became aware that his negligence had imperiled the safety of another, he did everything in his power to avert the consequences.

A judgment for punitive damages was affirmed in the case of St. Louis, I. M. S. Ry. Co. v. Stamps, 84 Ark. 241,104 S.W. 1114. Justice RIDDICK wrote a dissenting opinion which is referred to in the opinion on rehearing as the opinion of the late Mr. Justice RIDDICK. This dissenting opinion is probably the last opinion written by Judge RIDDICK. In his dissenting opinion Justice RIDDICK said: "Negligence, I admit, is shown, but to my mind the circumstances all rebut the idea that the injury was wilfully inflicted, or that there was anything wanton or wilful in the conduct of the engineer. For that reason I am convinced that exemplary damages ought not to be allowed. In the opinion on rehearing, a difference of opinion existed as to the established facts, and the opinion states "If the majority could see the facts that way, there would be no escaping the conclusion stated in the opinion of Mr. Justice RIDDICK." So that the entire court approved the statement of law in Justice RIDDICK'S dissenting opinion above quoted.

We do not find in any of our own cases any holding contrary to Justice RIDDICK'S statement of the law, on the contrary, in the Chapter on Damages, West's Digest of the Arkansas Reports, Sec. 91, numerous cases are cited in support of the statement there appearing that "negligence, however gross, will not justify a verdict for exemplary damages unless the negligent party is guilty of willfulness, wantonness or conscious indifference to consequences from which malice may be inferred." No case to the contrary is cited.

The case of Texarkana Gas Electric Co. v. Orr,59 Ark. 215, 27 S.W. 66, is cited in support of the judgment here appealed from. In that case a judgment for punitive damages was sustained. A headnote reads: "Evidence that an electric light company knew in the night time that its wires were badly grounded, that its superintendent gave orders that the power should nevertheless be kept up, that after daylight, about 6 a.m., when many people were on the street, a live wire still lay on a street crossing by coming in contact with which a passerby was killed, is such evidence of wanton disregard of the rights and safety of others as will justify an assessment of punitive as well as actual damages."

In that case there was knowledge of possible peril to pedestrians on the street, and a conscious indifference to this peril. In our consultation the case of Ross v. Clark, 35 Ariz. 60, 274 P. 639 was before us. The Supreme Court of Arizona there affirmed a judgment for punitive damages against the drunken driver of a taxicab. But the opinion recites the following facts. "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 to himself and others demanded careful driving." It thus appears that there existed in that case a conscious indifference to the injury and damage the drunken driver would probably inflict. These facts are absent here. Miller was not driving recklessly, and there was no traffic except that of the two cars which collided.

In our recent case of Benson v. State, 212 Ark. 905,208 S.W.2d 767, we affirmed a penitentiary sentence of eighteen months against the defendant who killed a person while recklessly and illegally operating a truck under the influence of intoxicating liquors, under Act 169 of the Acts of 1947. It was there pointed out that under 6707, Pope's Digest, as amended by Act 194 of the Acts of 1943, it is made unlawful for any person to drive a vehicle while under the influence of intoxicating liquors. The majority opinion supplements this Act of 1943 by imposing punitive damages for which the statute does not provide. In other words, the punishment imposed by law is insufficient, and the majority have added to it a civil liability. The General Assembly did not impose this liability, but the majority have done so of their own accord, and this has been done contrary to an unbroken line of our decisions on the subject of liability for punitive damages.

For the violation of Act 194 of the Acts of 1943, amending 6707, Pope's Digest, Miller became liable, under that Act, to imprisonment for not less than ten days, nor more than one year in jail, or to a fine of not less than $25 or more than $1,000, or both such fine and imprisonment. The presumption is conclusive that Miller, under his plea of guilty, was given what was thought to be an appropriate punishment for his violation of the statute, which the opinion in the case of Benson v. State, supra, says was passed to prevent accidents and for "the preservation of persons from injury on the highways." Miller testified that he entered a plea of guilty because the sheriff told him that the tracks of his car showed that he had driven to the left of the center line of the highway.

By 6708, Pope's Digest, it is provided that "Any person who drives any vehicle in such a manner as to indicate a wilful or wanton disregard for the safety of persons or property is guilty of reckless driving" and is subject to the penalty there provided. This Act applies to the person who either willfully or wantonly disregards the safety of others. These terms "willfully and wantonly" are defined in the opinion in the Dysart case, supra, to mean, "such conduct in face of discovered peril. . . . and that it must appear that 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 will be inferred."

No prudent man would drive a car while drunk, but the lack or absence of prudence is mere negligence and negligence, however gross, does not justify the imposition of punitive damages.

The person driving a vehicle in violation of the law is subject to the punishment prescribed by law, whether he injures anyone or not. To constitute a violation of the law the statute does not require or provide that he shall have injured another person. It is a penal statute, highly so, but does not provide for the imposition of punitive damages for its violation. The majority have supplied this omission.

Of course one who injures another willfully or wantonly is not exempt from liability for punitive damages because in inflicting the damage he committed a crime. One might become liable for punitive damages without committing a crime. The test for imposing punitive damages is not merely whether one has violated the law, but is rather whether he acted willfully or wantonly in his wrong-doing, as these terms have been defined by this court. If while acting willfully or wantonly one injures another, he is liable for punitive damages, but the liability for punitive damages arises not from the fact alone that the law was violated, but from the added fact that he had acted willfully or wantonly.

Here there is an entire absence of any showing that Miller acted willfully or wantonly, or with conscious disregard of the safety of any other person. He was perceptibly under the influence of liquor, and was properly held liable for the consequence of his negligent driving in that condition, but unless the mere fact of being drunk supplies the absence of willfulness or wantonness, and renders such proof unnecessary, punitive damages should not be awarded.

There appears, therefore, no reason for the imposition of punitive damages in this case, except the fact alone that Miller was under the influence of intoxicating liquors. Certainly this is a proper circumstance to consider in determining whether he is liable for the injury inflicted, but compensatory damages only may be awarded where there is absent, as in this case, any element of willfulness or wantonness, or a conscious indifference to the consequences of one's conduct.

The Court of Appeals of California in the case of Strauss v. Buckley, 20 Cal. App. 2d 7,65 P.2d 1352, announced what I think is the law conforming to our own decisions. There a judgment for punitive damages was awarded against the drunken driver of an automobile. In reversing that judgment it was said: "The damages recoverable in a case of this kind are to be compensatory only; punitive damages are not recoverable because of the drunkenness of the defendant. That is an offense in itself for which punishment may be imposed in the ordinary course of law. Evidence of the drunkenness may be offered, of course, to show the negligence of the driver, but it may not be used to enhance the award of damages beyond that which will fairly compensate the plaintiff for the injuries suffered."

The majority have departed from the requirements heretofore existing for the imposition of punitive damages, and the new rule must eventuate in one or two things: First, insurance carriers in future policies must expressly exempt themselves from liability for punitive damages, or, Second, they must charge increased rates for insurance to compensate their increased and added liability.

In my opinion the judgment for compensatory damages should be affirmed and the judgment for punitive damages should be reversed and dismissed. I am authorized to say that Justice McHANEY and Justice McFADDIN concur in the views here expressed.