Luedemann v. Wade

Tammy LUEDEMANN and Doyle Luedemann v. Tyson
WADE

95-769                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 22, 1996


1.   Evidence -- excited utterance exception to hearsay rule
     discussed. -- The theory of the excited utterance exception is
     simply that circumstances may produce a condition of
     excitement which temporarily stills the capacity of reflection
     and produces utterances free of conscious fabrication; for the
     statement to be an excited utterance, it would have been
     necessary to establish that the utterance was made soon enough
     after the accident for it to reasonably be considered a
     product of the stress of accident, rather than of intervening
     reflection or deliberation; an excited utterance must have
     been made before there was time to contrive and misrepresent;
     that is, it must have been made before reflective and
     deliberative senses took over.

2.   Evidence -- statement made to policeman erroneously admitted -
     - excited utterance not proven. -- Where the defendant did not
     establish that he made the statement to the policeman before
     he had the ability to reflect and deliberate about his
     statement, the trial court erred in allowing the policeman to
     put the statement into evidence. 

3.   Evidence -- statement incorrectly admitted as an exited
     utterance -- evidence was cumulative and therefore harmless. -
     - Where the hearsay testimony given by the policeman about the
     defendant's statement was identical to the direct testimony of
     the defendant which was introduced in the case-in-chief and
     where two other witnesses fully corroborated the testimony,
     the hearsay testimony was cumulative evidence; an evidentiary
     error is harmless if the same or similar evidence is otherwise
     introduced at the trial. 

 4.  New trial -- error in the assessment of the amount of recovery
     is a ground for a new trial -- clear and manifest abuse of
     discretion standard used. -- Error in the assessment of the
     amount of recovery, whether too large or too small, is a
     ground for new trial even in the absence of other trial error;
     an important issue is whether a fair-minded jury could have
     reasonably fixed the award at the challenged amount; when the
     primary issue on a motion for new trial is the alleged
     inadequacy of the damages and not a question of liability, the
     court will sustain unless there is a clear and manifest abuse
     of discretion; this standard is similar to the one followed
     when the primary issue is liability and the trial judge has
     granted a new trial; the facts are viewed in a light most
     advantageous to the appellee. 

5.   New trial -- jury determines credibility -- trial court did
     not abuse its discretion in denying motion for a new trial. --
     Where the jury found comparative fault of 20%, and such a
     finding allowed a deduction in recovery, and where, in
     addition, the jury could have refused to believe plaintiff's
     testimony about her continuing pain and could have concluded
     that the extended period of recovery was not necessary, the
     trial court did not abuse its discretion in denying the motion
     for a new trial; the jury is not required to accept a party's
     testimony as undisputed even when uncontradicted or
     unimpeached; it is within the province of the jury to
     determine credibility and decide whom to believe.

6.   Appeal & error -- issue not raised below not reached on
     appeal. -- Where the argument was not raised in the trial
     court, the appellate court would not consider it for the first
     time on appeal. 


     Appeal from Craighead Circuit Court; Gerald Pearson, Judge;
affirmed.
     Henry, Walden & Halsey, by:  Troy Henry, for appellants.
     Womack, Landis, Phelps, McNeill & McDaniel, by:  Mark Alan
Mayfield, for appellee.

     Robert H. Dudley, Justice.




TAMMY LUEDEMANN AND DOYLE
LUEDEMANN,
                    APPELLANTS,

V.

TYSON WADE,
                    APPELLEE.



95-769


APPEAL FROM THE CRAIGHEAD
COUNTY CIRCUIT COURT,
NO. 93-228,
HON. GERALD PEARSON, JUDGE,




AFFIRMED.






     On April 30, 1993, plaintiff Tammy Luedemann was driving her
automobile on a rain-slick street in Jonesboro.  Her car was the
second automobile in a three-car string of vehicles going the same
direction.  Her car was about three car lengths behind the lead
car.  The lead car began to slow down, and plaintiff likewise began
to slow her car.  Defendant Tyson Wade was driving the third
vehicle, his pickup truck, about two-and-a-half car lengths behind
plaintiff's car.  Defendant testified that he saw the lead car
start to slow down, saw plaintiff's brake lights come on, and, as
plaintiff's car was slowing down, it started sliding from side to
side or "fishtailing."  Defendant's pickup struck the rear of
plaintiff's car.  Plaintiff's car caromed across the center line
and struck two other vehicles.  Plaintiff sustained physical
injuries, property damage, and loss of wages.  She and her husband
filed suit against defendant.  After a three-day trial the jury
found that the accident was 80% fault of defendant and 20% fault of
the plaintiff, and awarded $6,025.78 for plaintiff's personal
injuries and $7,023.20 for her property damages.  Plaintiff filed
a motion for a new trial in which she alleged that the verdict for
personal injuries was too small and was clearly against the
preponderance of the evidence.  The trial court denied the motion
for a new trial, and plaintiff appeals.  We affirm.
     Plaintiff's first assignment of error is that the trial court
committed error in an evidentiary ruling.  The point is well taken,
but the error was harmless.
     The point came about in the following manner.  Plaintiff
called defendant as her first witness in her case-in-chief, and he
testified, in part, as follows:
          Q. It was raining and wet?
          A. Yes, sir.
          Q. Sir?
          A. Yes, sir.
          Q. And you were going about 30 or 35 miles per hour?
          A. Yes.
          Q. Is that right?
          A. Yes, sir.
          Q. And how far were you behind her car?
          A. Two to two-and-a-half car lengths.
          Q. Two, two-and-a-half car lengths.  At some point
     did her car start slowing down?
          A. It started -- her brakes came on and like she was
     going to start to slow down and her car started swerving
     -- lost control of her car and started swerving off the
     road.
     Plaintiff's second witness was the police officer who
investigated the accident.  On direct examination, plaintiff's
counsel asked the officer about the accident scene.  In testifying
about those facts, he stated that he arrived on the scene "minutes"
after the accident.  On cross-examination, defendant's counsel
asked the officer to repeat a statement defendant gave him at the
scene about the way the accident occurred.  Plaintiff objected to
the hearsay statement.  The trial court correctly sustained the
objection.  Rule 801 of the Arkansas Rules of Evidence defines
hearsay as a statement made by the declarant while testifying at
the trial and offered into evidence to prove the truth of the
matter asserted.  Ark. R. Evid. 801(c).  The trial court then asked
defense counsel if the statement could be qualified as an excited
utterance under Ark. R. Evid. 803(2) by establishing the time
interval between the accident and the statement and establishing
the defendant's appearance and emotional state.  Counsel did not
pursue the suggested line of questioning, but rather asked
questions about the policeman's routine in investigating accidents. 
Counsel then again asked the officer what the defendant told him
about the accident and the trial court, over plaintiff's renewed
objection, ruled that the officer could answer.  The ruling was in
error.
     The theory of the excited utterance exception is simply that
circumstances may produce a condition of excitement which
temporarily stills the capacity of reflection and produces
utterances free of conscious fabrication.  Greenlee v. State, 318
Ark. 191, 884 S.W.2d 947 (1994).  For the statement to be an
excited utterance, it would have been necessary to establish that
the utterance was made soon enough after the accident for it to
reasonably be considered a product of the stress of accident,
rather than of intervening reflection or deliberation.  Id. at 199,
884 S.W.2d  at 951 (citing Smith v. State, 303 Ark. 524, 530, 798 S.W.2d 94, 97 (1990)).  An excited utterance must have been made
before there was time to contrive and misrepresent; that is, it
must have been made before reflective and deliberative senses took
over.  Russell v. State, 306 Ark. 436, 815 S.W.2d 929 (1991).  The
defendant did not establish that he made the statement to the
policeman before he had the ability to reflect and deliberate about
his statement.  Thus, the trial court erred in its ruling.  Even
so, the error was harmless.
     The hearsay testimony of the policeman was as follows:
          Q. Please refer to your report.
          A. He said basically what I wrote down that
     Luedemann began skidding and lost control in front of him
     in response to a vehicle in front of her slowing to turn.
          Q. And just to complete it, he was--
          A. He was unable to stop, also, and struck Luedemann
     from behind.
     The hearsay testimony given by the policeman about the
defendant's statement was identical to the direct testimony of the
defendant.  The plaintiff introduced the defendant's direct
testimony in her case-in-chief.  Thus, it is difficult to afford
meaning to her argument about prejudice since she had already
introduced the identical testimony.  In addition, two other
witnesses, Ronnie Sammons and Bryan Dugger, fully corroborated the
testimony.  They observed the accident, and their testimony was not
hearsay; thus, the hearsay testimony was cumulative evidence.  See
Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995).  We have
repeatedly held that "an evidentiary error is harmless if the same
or similar evidence is otherwise introduced at the trial."  
Williams v. Southwestern Bell, 319 Ark. 626, 893 S.W.2d 770 (1995);
Shamlin v. Shuffield, 302 Ark. 164, 787 S.W.2d 687 (1990); Thompson
v. AAA Lumber Co., 245 Ark. 518, 432 S.W.2d 873 (1968).  This
doctrine is now embodied in Ark. R. Evid. 103(a), which provides
that error may not be predicated upon a ruling which admits
evidence unless a substantial right of the party is affected. 
     Appellant next contends that the trial court erred in denying
her motion for new trial because the award of damages was too
small.  Appellant claimed $7,023.30 in property damage, $15,020.19
in medical expenses for personal injury, $523.60 for travel to
receive medical treatment, and $12,758.60 in lost wages.  She was
under treatment from the date of the accident, April 30, 1993,
through November of 1994.  She testified that she was unable to
return to her job at Wal-Mart after October of 1993.  She produced
exhibits detailing her costs for hospital treatment after the
accident, treatment by eight different physicians and two physical
therapists, prescription drugs, radiology reports, and various
documents and letters from the treating physicians.  She contended
that her injuries required her to make 109 trips to various
medical-care providers. 
     The jury found that appellee was 80% negligent and appellant
was 20% negligent.  It awarded damages of $6,025.78 for personal
injuries and $7,023.20 for property damages.  
     Error in the assessment of the amount of recovery, whether too
large or too small, is a ground for new trial even in the absence
of other trial error.  Kempner v. Schulte, 318 Ark. 433, 885 S.W.2d 892 (1994).  An important issue is whether a fair-minded jury could
have reasonably fixed the award at the challenged amount.  Smith v.
Pettit, 300 Ark. 245, 778 S.W.2d 616 (1989).  When the primary
issue on a motion for new trial is the alleged inadequacy of the
damages and not a question of liability, this court will sustain
unless there is a clear and manifest abuse of discretion.  Id. 
This standard is similar to the one followed when the primary issue
is liability and the trial judge has granted a new trial.  Kempner
v. Schulte, 318 Ark. at 435, 885 S.W.2d  at 893 (quoting Warner v.
Liebhaber, 281 Ark. 16, 661 S.W.2d 399 (1983)).  The facts are
viewed in a light most advantageous to the appellee.  Id. at 436,
885 S.W.2d  at 893.
     We do not know the exact manner the jury arrived at $6,025.78
for personal injuries.  However, the jury did find comparative
fault of 20%, and such a finding would allow for a deduction in
recovery.  Gilbert v. Diversified Graphics, 286 Ark. 261, 691 S.W.2d 162 (1985).  In addition, the jury could have refused to
believe plaintiff's testimony about her continuing pain and could
have concluded that the extended period of recovery was not
necessary.  Id. at 262, 691 S.W.2d  at 163-64.  The jury is not
required to accept a party's testimony as undisputed even when
uncontradicted or unimpeached.  Olmstead v. Moody, 311 Ark. 163,
842 S.W.2d 26 (1992).  It is within the province of the jury to
determine credibility and decide whom to believe.  Id.  Thus, we
cannot say that the trial court abused its discretion in denying
the motion for a new trial.
     Next plaintiff argues that Act 424 of 1993 in effect shifts
the burden of proof from plaintiff to defendant when the plaintiff
has brought forth evidence of medical expenses, because that act
removes the requirement of expert testimony regarding the
reasonableness of medical expenses.  This argument was not raised
in the trial court, and we will not consider an argument raised for
the first time on appeal.  Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995).
     Affirmed.