National Bank of Commerce v. McNeill Trucking Co.

Robert L. Brown, Justice, dissenting. The majority’s decision overturns a line of cases that extends back to 1983. See Kratzke v. Nestle-Beich, Inc., 307 Ark. 158 , 817 S.W.2d 889 (1991); Hacker v. Hall, 296 Ark. 571 , 759 S.W.2d 32 (1988); Thigpen v. Polite, 289 Ark. 514 , 712 S.W.2d 910 (1986); Warner v. Liebhaver, 281 Ark. 118 , 661 S.W.2d 399 (1983). By doing so, the decision opens up an issue that had previously been decided and subjects the matter once again to resolution on a case-by-case basis.

The authority adduced above, beginning with Warner v. Liebhaver, stands for the proposition that the trier of fact may choose to disbelieve the testimony of any witness and award damages accordingly. That is what the trial judge as the trier of fact did in the case before us. The majority, however, takes this precedent and casts it to the four winds. It then usurps the factfinder’s role by proceeding to weigh the testimony and decide the legitimacy of Yancey’s cardiac expenses.

There is a firm basis for the trial judge’s decision to reject these expenses. As the majority admits, Dr. Grimes did not refer Yancey to a cardiologist until six weeks after the accident and only then because of Yancey’s statements about chest paints and as a safety measure prefatory to back treatment by a transcutaneous electrical nerve stimulator. The trial judge could well have chosen to disbelieve the authenticity of Yancey’s complaint, and it was that complaint that was the catalyst for Dr. Grimes’s referral to a cardiologist. As it turned out, there was no injury to the heart. Yancey had a history of heartburn, was a hypochondriac, and was prone to exaggeration. The mere fact that Dr. Grimes referred him to a cardiologist out of an abundance of 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 for personal injuries and $1,500 for property damage resulting from an automobile accident. She had $12,285 in medical expenses. The jury awarded her total damages of $2,500, and the trial judge denied her motion for a new trial. Analyzing the record, we held that the jury could reasonably have found that Mrs. Warner was not seriously injured and that her medical expenses were not fairly attributable to whatever back pain she may have suffered. One of her doctors testified that, although she had undergone surgery three months before the accident, her problem was primarily psychological. A treating psychiatrist indicated that the accident had become the focus for her existing emotional conflicts. Under the circumstances, we held that there was no abuse of discretion.

In Smith v. Pettit, supra, the appellant claimed damages for permanent injuries to his neck and back, loss of earnings and earning capacity, past and future pain and suffering, and past and future medical expenses, which he asserted, were the consequences of an automobile wreck. The jury awarded him only $1,711.64, the amount of his medical bills. Reviewing the evidence, we observed that Smith has missed no work because of the accident; he had been involved in three other automobile collisions; he had previously fallen off a telephone pole; he suffered from stress associated with a new employment situation; and his condition continued to improve. On the basis of these and other factors, we held that there was no abuse of discretion in the trial court’s denial of a new trial.

In Kratzke v. Nestle-Beich, Inc., supra, a 1991 case, medical expenses of $47,060.12 were claimed, and the jury’s verdict was $2,000. Citing Warner, we concluded that the jury could have decided that medical expenses were attributable to preexisting causes and not to an automobile accident. We said: “The mere fact that medical expenses have been incurred by the appellant and the additional fact that the appellee has admitted liability do not automatically translate into a damage award equivalent to those expenses.” 307 Ark. at 160 , 817 S.W.2d at 890 .

In the present case, the trial judge sitting as the trier of fact was the sole judge of the credibility of the witnesses and of the weight to give their testimony. See Takeya v. Didion, 294 Ark. 611 , 745 S.W.2d 614 (1988). The majority, by its decision, has insinuated itself into that role for the purpose of obtaining a desired result. The consequence of this decision is to lend instability to an area of the law that cries for stability.

I would pay heed to our past decisions and affirm the judgment of the trial judge.

Hays, J., joins.