Balentine v. Sparkman

Berniece BALENTINE v. Lisa SPARKMAN, et al.

96-196                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 3, 1997


1.   Evidence -- sufficiency of -- factors on review. -- When
     reviewing the sufficiency of the evidence, the appellate court
     reviews the evidence and all reasonable inferences arising
     therefrom in the light most favorable to the party on whose
     behalf judgment was entered; the verdict will be affirmed if
     there is substantial evidence to support it; substantial
     evidence is evidence that passes beyond mere suspicion or
     conjecture and is of sufficient force and character that it
     will with reasonable and material certainty compel a
     conclusion one way or the other.  

2.   Negligence -- negligent entrustment -- necessary elements. --
     To establish negligent entrustment under Arkansas law, the
     plaintiff must show that (1) the entrustee was incompetent,
     inexperienced, or reckless; (2) the entrustor knew or had
     reason to know of the entrustee's conditions or proclivities;
     (3) there was an entrustment of the chattel; (4) the
     entrustment created an appreciable risk of the harm to the
     plaintiff and a relational duty on the part of the defendant;
     and (5) the harm to the plaintiff was proximately or legally
     caused by the negligence of the defendant.

3.   Witnesses -- credibility of -- jury chooses who to believe. --
     It is the sole province of the jury to determine the
     credibility of the witnesses and the weight of their
     testimony. 

4.   Negligence -- jury found driver negligently operated car --
     evidence sufficient to support jury's conclusion. -- Where, in
     addition to showing that the driver had consumed alcohol, the
     witnesses also declared that he staggered and slurred his
     speech, it was reasonable for the jury to conclude that his
     consumption of alcohol had impaired his physical abilities
     and, more importantly, his ability to operate the vehicle in
     a reasonable manner; there was sufficient evidence to support
     the jury's conclusion that the driver negligently operated the
     station wagon.

5.   Jury -- jury draws upon common knowledge and experience in
     reaching verdict. -- A jury is allowed to draw upon its common
     knowledge and experience in reaching a verdict from the facts
     proven at trial; moreover, it is appropriate for the jury to
     draw reasonable inferences from the facts presented at trial.

6.   Negligence -- jury's inference reasonable -- evidence
     sufficient to support finding of negligent entrustment. -- The
     jury could have reasonably inferred that if the driver was
     intoxicated at the time of the accident, he would have also
     exhibited similar physical signs of intoxication moments
     before the accident when appellant entrusted him with the
     operation of her car; thus there was sufficient evidence to
     support the jury's conclusion that appellant negligently
     entrusted the station wagon to the driver; the trial court did
     not err in instructing the jury on negligent entrustment.

7.   Trial -- mistrial drastic remedy -- when granted. -- A
     mistrial is a drastic remedy that should only be used when
     there has been an error so prejudicial that justice cannot be
     served by continuing the trial or when fundamental fairness of
     the trial itself has been manifestly affected; the trial court
     has wide discretion in granting or denying a motion for a
     mistrial, and, absent an abuse, the decision will not be
     disturbed; a mistrial will only be granted where any possible
     prejudice could not have been removed by an admonition to the
     jury. 

8.   Trial -- references to beer sufficient grounds for mistrial --
     cased reversed and remanded for new trial. -- Where the trial
     judge held that testimony regarding both a six-pack of beer
     that was brought to appellant's home and three unopened
     containers of beer seen in appellant's car at the time of the
     accident was more prejudicial than probative of the issue of
     whether the driver was intoxicated at the time of the accident
     and granted a motion in limine excluding all evidence on
     either point, yet the other driver's attorney made both
     express and implied references to beer on the floorboard of
     appellant's vehicle, the supreme court found sufficient
     grounds for a mistrial; the case was reversed as to all
     parties and remanded for a new trial. 

9.   Evidence -- admission of evidence discretionary -- no abuse of
     discretion found. -- Where the trial court granted a motion in
     limine prohibiting the parties from mentioning the presence of
     unopened beer containers in either vehicle because, under Ark.
     R. Evid. 403, the prejudicial nature outweighed the probative
     value, the trial court's order excluding the evidence was
     affirmed; a trial judge's ruling in this regard will be
     affirmed absent a showing of an abuse of discretion.

10.  Evidence -- matter not collateral -- trial judge's ruling
     excluding the prior inconsistent statement was an abuse of
     discretion. -- The trial court committed prejudicial error
     when it precluded testimony that would have impeached the
     officer who worked the accident; the trial judge excluded the
     testimony on grounds that it was impermissible extrinsic
     evidence offered to prove a collateral matter; a matter is not
     collateral if the cross-examining party would be entitled to
     prove the issue as part of the case in chief, or if the
     evidence is relevant to show bias, knowledge, or interest;
     whether or not the driver was intoxicated at the time of the
     accident was the central issue of the case; it was not a
     collateral matter; the trial judge's ruling excluding the
     alleged prior inconsistent statement was reversed as an abuse
     of discretion.

11.  Evidence -- emergency-room statements cumulative -- right
     decision made for wrong reason. -- Where the trial court
     excluded evidence of statements the driver made while waiting
     in the hospital emergency room on the grounds that he would
     not be able to deny or respond to the statement under A.R.E.
     613, which was inapplicable; however, the driver had already
     told the jury that he admitted fault at the scene of the
     accident, his statements in the emergency room were merely
     cumulative and thus properly excluded under Ark. R. Evid. 403;
     because the trial judge made the right decision for the wrong
     reason, the supreme court affirmed as to this evidentiary
     ruling.


     Appeal from Cleburne Circuit Court; John Dan Kemp, Judge;
reversed and remanded; on cross-appeal, reversed in part.
     Matthews, Sanders, & Sayes, by: Mel Sayes, for appellant.
     Comer Boyett, Jr., and J. Russell Green, for appellee Lisa
Sparkman.  
     Odell Pollard, P.A., by:  Odell Pollard, for appellee Jerry
Howell, Jr.

     Annabelle Clinton Imber, Justice.
     This cause of action arose out of a traffic accident that
occurred on May 19, 1990, in Heber Springs, Arkansas, during which
a station wagon owned by Berniece Balentine and driven by Billy
Sparkman collided with a Jeep driven by Jerry Howell.  
     On the evening of May 19, 1990, Lisa and Billy Sparkman were
visiting Berniece Balentine, who is Lisa Sparkman's grandmother. 
While at the Balentine residence, Billy Sparkman thought he
observed lightning strike a relative's home.  Lisa, Billy, and Ms.
Balentine decided to drive to the home to determine if the
lightning had caused any damage.  Because it was dark and raining,
Ms. Balentine asked Billy Sparkman to drive her station wagon, and
he complied. 
     Billy drove the station wagon a few blocks before stopping at
the intersection of Highway 25 and Scott streets.  Billy asked the
passengers if they detected any oncoming traffic.  Ms. Balentine
and Lisa told Billy that the intersection was clear.  Billy drove
the station wagon halfway into the intersection when it was struck
in the rear passenger door by a Jeep driven by Jerry Howell.  Lisa
Sparkman was knocked unconscious and suffered permanent brain
damage.  
     At trial, Ms. Balentine and Billy Sparkman testified that
Howell was driving the Jeep without his headlights on, and that he
did not turn on his lights until seconds before impact.  However,
Howell and an eyewitness told the jury that Howell did indeed have
his headlights on as he approached the intersection.  Immediately
after the collision, Howell overheard Billy Sparkman crying and
exclaiming that the accident was his fault.  
     Ms. Balentine and Billy Sparkman testified that Billy had not
been drinking alcohol the night of the accident.  Likewise, a
police officer and two other witnesses testified that they did not
detect the presence of alcohol on any of the parties to the
accident.  However, Howell, an eyewitness, and Howell's two sisters
claimed that they detected alcohol on Billy Sparkman's breath, that
he staggered, and that his speech was slurred. 
     The jury found that at the time of the accident Billy Sparkman
was acting as Berniece Balentine's agent, that Balentine had
negligently entrusted Sparkman with the operation of the station
wagon, and that Lisa Sparkman, Billy Sparkman, and Berniece
Balentine were engaged in a joint enterprise. Furthermore, the jury
apportioned fault as follows:  Lisa Sparkman (injured party) 0%,
Jerry Howell (driver of the Jeep) 0%, Billy Sparkman (driver of the
station wagon) 45%, and Berniece Balentine (owner of the station
wagon) 55%.  Hence, Billy Sparkman and Berniece Balentine were held
legally responsible for the $250,000 in damages suffered by Lisa
Sparkman.
     Immediately after the jury rendered its verdict, Balentine
made a motion for a judgment notwithstanding the verdict and a
motion for a new trial.  Both were denied, and Balentine appeals.
Although the jury completely exonerated Jerry Howell of any
liability for the accident, he cross-appealed alleging three trial
errors. 
       1. Negligent Entrustment/AMI 609 Jury Instructions.
     For her first argument on appeal, Berniece Balentine alleges
that the trial judge erred in a) denying her motion for a directed
verdict on the issue of negligent entrustment, b) instructing the
jury on negligent entrustment, and c) rejecting her motion for a
judgment notwithstanding the verdict.  These arguments are
essentially a challenge to the sufficiency of the evidence, and
thus should be considered together.  See, Medlock v. Burden, 321
Ark. 269, 900 S.W.2d 552 (1995).  
     When reviewing the sufficiency of the evidence, this court
reviews the evidence and all reasonable inferences arising
therefrom in the light most favorable to the party on whose behalf
judgment was entered.  Anslemo v. Tuck, 325 Ark. 211, 924 S.W.2d 798 (1996).  The verdict will be affirmed if there is substantial
evidence to support it. Medlock, supra.  Substantial evidence is
evidence that passes beyond mere suspicion or conjecture and is of
sufficient force and character that it will with reasonable and
material certainty compel a conclusion one way or the other.  Id.
     In the present case, the jury found that Balentine negligently
entrusted her station wagon to Billy Sparkman.  To establish
negligent entrustment under Arkansas law, the plaintiff must show
that:  1) the entrustee was incompetent, inexperienced, or
reckless; 2) the entrustor knew or had reason to know of the
entrustee's conditions or proclivities; 3) there was an entrustment
of the chattel; 4) the entrustment created an appreciable risk of
the harm to the plaintiff and a relational duty on the part of the
defendant; and 5) the harm to the plaintiff was proximately or
legally caused by the negligence of the defendant.  Renfro v.
Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996); Mann v. Orrell, 322
Ark. 701, 912 S.W.2d 1 (1995).  On appeal, Balentine alleges that
there was insufficient evidence  to support the jury's finding on
the first and second elements of negligent entrustment.  
               a.  The entrustee was incompetent.
     First, Balentine claims that there was insufficient evidence
to support the jury's finding that Billy Sparkman was incompetent,
or in this case, intoxicated at the time of the accident.  As
mentioned above, several witnesses asserted that Sparkman smelt of
liquor, staggered, and slurred his speech; while several other
witnesses claimed that he did not appear intoxicated.  This court
has repeatedly held that it is the sole province of the jury to
determine the credibility of the witnesses and the weight of their
testimony.  Russell v. Colson, 326 Ark. 112, 928 S.W.2d 794 (1996). 
Therefore, the jury was free to believe the witnesses who claimed
that Sparkman was intoxicated over those who alleged that he was
not.      
     Citing City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562 (1995), Balentine next argues that Sparkman's mere
consumption of alcohol did not establish that he was driving in a
negligent manner.  Although Balentine's assertion of the law is
correct, her application to the facts at hand is erroneous.  In
Cameron, the defendant crashed his car into a traffic pole owned by
the City of Little Rock.  Id.  The officer who arrived at the scene
of the accident testified that Cameron smelled of alcohol and
registered a .05 percent blood-alcohol level. Id.  On appeal, we
held that the mere fact that Cameron had been drinking alcoholic
beverages was not sufficient evidence to establish negligence. Id. 
Specifically, we explained that:
     there was no evidence that Cameron was intoxicated or
     otherwise impaired at the time of the accident or that
     his liquor consumption either evidenced a lack of
     reasonable care on Cameron's part or caused the wreck in
     any way.  In sum, we agree that the City's proof does not
     give rise to an inference of negligence but only to
     conjecture and speculation.
Id. (emphasis added).  
     This case is distinguishable from Cameron in that in addition
to showing that Sparkman had consumed alcohol, the witnesses also
declared that he staggered and slurred his speech.  Therefore, it
was reasonable for the jury to conclude that Sparkman's consumption
of alcohol had impaired his physical abilities, and more
importantly, his ability to operate the vehicle in a reasonable
manner.  Thus, we find that there was sufficient evidence to
support the jury's conclusion that Sparkman negligently operated
the station wagon.
           b.  The entrustor knew of the incompetence.
     Balentine also attacks the jury's finding of the second
element of negligent entrustment that the entrustor knew or had
reason to know of the entrustee's incompetence.  At trial, Billy
Sparkman explained to the jury that prior to the accident he was at
Balentine's home, and that they drove only a few blocks before they
entered the intersection where the accident occurred.  
     It is well settled that a jury is allowed to draw upon their
common knowledge and experience in reaching a verdict from the
facts proven at trial.  Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994).  Moreover, it is appropriate for the jury to draw
reasonable inferences from the facts presented at trial.  Anslemo;
supra.  Hence, we find that the jury could have reasonably inferred
that if Sparkman was intoxicated at the time of the accident, he
would have also exhibited similar physical signs of intoxication
moments before the accident when Balentine entrusted him with the
operation of her car.  Thus, we find that there was sufficient
evidence to support the jury's conclusion that Balentine
negligently entrusted the station wagon to Sparkman.  In view of
this finding, we likewise hold that the trial court did not err in
instructing the jury on negligent entrustment.
                    2.  Motion for Mistrial.
     For her next argument on appeal, Balentine asserts that she
should have been granted a mistrial when Howell's attorney
repeatedly referred to evidence excluded by the trial court about
the alleged presence of beer containers in the station wagon at the
time of the accident.
     This court has repeatedly held that a mistrial is a drastic
remedy which should only be used when there has been an error so
prejudicial that justice cannot be served by continuing the trial,
or when fundamental fairness of the trial itself has been
manifestly affected.  Peeler v. State, 326 Ark. 423, 932 S.W.2d 312
(1996).  The trial court has wide discretion in granting or denying
a motion for a mistrial and absent an abuse the decision will not
be disturbed. Id.  Finally, a mistrial will only be granted where
any possible prejudice could not have been removed by an admonition
to the jury.  Id.
     During a pretrial conference, it was established that the
Sparkmans had a six-pack of beer in their vehicle when they arrived
at Balentine's home, and that a witness would testify that he
observed three unopened containers of beer in Balentine's station
wagon at the time of the accident.  The trial judge held that
testimony regarding both of these alleged facts was more
prejudicial than probative of the issue of whether Sparkman was
intoxicated at the time of the accident.  Therefore, the judge
granted a motion in limine excluding all evidence on either point
and instructed the attorneys to approach the bench if they intended
to refer to the evidence.
     During her direct testimony, Berniece Balentine mentioned that
Lisa Sparkman had placed glass baby bottles at her feet in the back
seat of the car, and that after the accident, the police officer
brought these bottles to the hospital.  Despite the judge's
previous ruling and instruction to all attorneys, the following
exchange occurred while Howell's attorney cross-examined Balentine:
     ATTORNEY:  Did you think it was necessary to put the
     bottles for the baby in the floorboard under Lisa's feet
     when you were making just a very short trip over to
     Lisa's --
     BALENTINE:  Well, she always takes it with them,
     everywhere she goes.
     ATTORNEY:  Well, let me finish my question.  Now, the
     reason you are telling us about bottles for the baby, is
     it because you know there's going to be some testimony
     there was some beer under Lisa's feet in that floorboard?
     Balentine immediately objected and moved for a mistrial.  The
trial judge denied the motion, reminded Howell's attorney to
approach the bench before mentioning the subject, and warned, "if
it's done again, the Court is probably not going to have any option
other than to grant a mistrial."  The judge admonished the jury to
disregard the testimony, and the trial continued.
     Billy Sparkman was the next witness to testify at trial. 
Before Sparkman began to testify, Howell's attorney approached the
bench and again asked for clarification on the motion in limine.
Specifically, Howell's attorney told the judge that Nick Benny
Butkovich, III, was going to testify that he saw beer bottles on
the floorboard of the Balentine vehicle.  Once again the judge
explained that the evidence was excluded.
     Despite the trial judge's warnings, Howell's attorney asked
the following questions during his direct examination of Nick Benny
Butkovich, III:
     ATTORNEY:  All right. Let me ask you this. Did you see
     anything on the floorboard there in the car?
     BUTKOVICH:  Yes, Sir; I believe I did.
     ATTORNEY:  Tell the members of the jury what you saw on
     the floorboard.
     The judge immediately called the attorneys to the bench,
reprimanded Howell's attorney, and sanctioned him by assessing a
$25 fine.  Balentine again moved for a mistrial which was denied. 
The judge did not admonish the jury to disregard the testimony.
     We find that the express and implied references by Howell's
attorney to beer on the floorboard of Balentine's vehicle were
sufficient grounds for a mistrial; especially when there was
contradictory evidence on the issue of whether Billy Sparkman was
intoxicated at the time of accident. Moreover, the jury only heard
brief allusions to beer containers in Balentine's car without
clarification that they were unopened.  Thus, the jury could have
surmised that Howell's attorney was making reference to opened, and
recently consumed bottles of beer.  Simply put, Howell's attorney
rang the proverbial bell not once, but twice, and a mistrial should
have been granted.  Therefore, we must reverse as to all parties
and remand for a new trial. 
      Because we reverse and remand for a new trial for the reasons
stated above, we do not reach Balentine's other arguments on
appeal.  We will, however, address Howell's arguments raised on
cross-appeal because they involve evidentiary matters that the
trial court will address again at a new trial.
     Howell's first argument on cross-appeal is that the trial
court abused its discretion in excluding evidence of beer in the
Sparkman and Balentine automobiles.  As mentioned above, the trial
court granted a motion in limine prohibiting the parties from
mentioning the presence of unopened beer containers in either the
Sparkman vehicle or the Balentine vehicle.  The trial judge held
that this evidence should be excluded under Ark. R. Evid. 403
because the prejudicial nature outweighed the probative value. 
This court has repeatedly held that a trial judge's ruling in this
regard will be affirmed absent a showing of an abuse of discretion.
Peters v. Pierce, 314 Ark. 8, 858 S.W.2d 680 (1993).  We affirm the
trial court's order excluding the evidence because Howell has
failed to demonstrate an abuse of discretion. 
     Howell's second argument on cross-appeal is that the trial
court committed prejudicial error when it precluded testimony that
would have impeached Officer David Smith.  On direct examination,
Officer David Smith testified that he did not find any evidence
that the parties to the accident had been consuming alcohol. 
Furthermore, Officer Smith said that he did not know of a request
by any of the parties to have Billy Sparkman's blood-alcohol level
tested.   
     In an effort to impeach Officer Smith's testimony, Howell
attempted to introduce evidence that he and his father asked
Officer Smith to test Billy Sparkman's blood-alcohol level, and
Officer Smith responded:  
     This man doesn't need a DWI charge, he's got more
     problems than he can handle now because his wife is
     probably going to die.
Although a witness may be impeached with prior inconsistent
statements, the trial judge excluded this testimony on grounds that
it was impermissible extrinsic evidence offered to prove a
collateral matter.  Ark. R. Evid. 613 & 801(d)(1).  We disagree.
     According to Pyle v. State, 314 Ark. 165, 862 S.W.2d 823
(1993), cert. denied, 510 U.S. 1197 (1994), a matter is not
collateral if:
     the cross-examining party would be entitled to prove the
     issue as part of the case in chief, or if the evidence is
     relevant to show bias, knowledge, or interest.
Whether or not Billy Sparkman was intoxicated at the time of the
accident was the central issue of this case; it simply was not a
collateral matter.  Hence, the trial judge's ruling excluding the
alleged prior inconsistent statement must be reversed as an abuse
of discretion.
     Howell's final argument on cross-appeal is that the trial
court committed prejudicial error when it would not permit two
witnesses to testify to statements Billy Sparkman made while
waiting in the hospital emergency room a short time after the
accident.  Specifically, Howell and his two sisters wanted to
testify that they overheard Billy Sparkman exclaim several times
that the accident was his fault.  The trial judge excluded the
evidence under Ark. R. Evid 613 on the grounds that Sparkman would
not be able deny or respond to the statement.  Because the parties
could have simply recalled Sparkman to clarify his statement, Rule
613 did not apply.
     However, Sparkman had already told the jury that he admitted
fault at the scene of the accident.  Therefore, his statements in
the emergency room were merely cumulative and thus properly
excluded under Ark. R. Evid. 403.  Because the trial judge made the
right decision for the wrong reason, we affirm as to this
evidentiary ruling.  See, In re estate of F.C., 321 Ark. 191, 900 S.W.2d 200 (1995).
     Reversed and remanded; on Cross-Appeal, reversed in part.