Smith v. Hansen

Jerry SMITH and Brenda Smith v. Marilyn
HANSEN, Lynne Rice, Jeffrey Scott Metcalf,
Chris Young, Southern Guaranty Insurance
Company, and Continental Casualty Company

95-315                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 22, 1996


1.   Appeal & error -- prevailing party bound by trial court's
     decision. -- Where two of the appellees successfully moved to
     dismiss the negligence claim before the trial court but
     contended on appeal that the dismissal was error by the trial
     court, the supreme court held that, having prevailed below,
     they were bound by the trial court's decision in their favor.

2.   Negligence -- when summary judgment is appropriate. -- Where
     a negligence claim is made, if no duty of care is owed, the
     negligence count is decided as a matter of law, and summary
     judgment is appropriate.

3.   Negligence -- duty to control conduct of third person -- not
     owed unless special relationship exists between tortfeasor and
     third person or victim. --  Ordinarily one is not liable for
     the acts of another party unless a special relationship exists
     between the tortfeasor and the victim; moreover, there is no
     duty so to control the conduct of a third person as to prevent
     him from causing physical harm to another unless a special
     relationship exists between the actor and the third person
     that imposes a duty upon the actor to control the third
     person's conduct, or a special relationship exists between the
     actor and the other that gives to the other a right to
     protection.

4.   Negligence -- no bona fide claim of negligence existed. -- The
     supreme court held that no bona fide claim of negligence was
     present where no special relationship existed between 
     appellees Hansen and Rice and appellants at the time of the
     beating of appellants and no special relationship giving rise
     to a duty to control existed at that time between Hansen and
     Rice and the two perpetrators of the crime.

5.   Negligence -- case presented cause of action of intentional
     tort rather than negligence -- summary judgment appropriately
     granted. -- The supreme court held that the present case
     presented a cause of action of intentional tort premised on a
     contract to beat appellants but not a cause of action for
     negligence; without the existence of some special
     relationship, or evidence of encouragement to third parties by
     one in a position of some control or authority over them, no
     duty of care flowed from appellees Hansen and Rice to
     appellants; the supreme court held that the trial court
     appropriately granted summary judgment on the negligence
     issue.

6.   Appeal & error -- prevailing party has no standing to
     challenge issue decided favorably. -- Where appellants
     asserted that trial court erred in refusing to modify the
     outrage instruction, the supreme court held that they had no
     standing to make this argument because the jury returned a
     verdict in favor of appellants on the outrage claim.

7.   Damages -- trial court may not substitute its judgment for
     jury's when there is basis in evidence. -- A trial court may
     not substitute its judgment for the jury's when there is a
     basis in the evidence for the award and when there is no
     evidence, appropriately objected to, that tends to create
     passion or prejudice.

8.   Damages -- remittitur reviewed de novo. -- The supreme court
     reviews the issue of remittitur de novo and determines whether
     the amount of the judgment shocks its conscience.

9.   Damages -- remittitur order reversed and remanded for
     reinstatement of original verdicts. -- Where the trial court
     made no finding that the jury award was the result of passion
     or prejudice; the compensatory damages awarded did not shock
     the conscience of the appellate court; and the assault and
     battery at issue had been unquestionably and understandably
     traumatic and cause for considerable mental anguish, the
     supreme court reversed the remittitur order, remanding the
     matter with directions to reinstate the original verdicts of
     $250,000.

10.  New Trial -- denial of motion -- standard of review -- trial
     court did not err. -- The standard of review for the denial of
     a motion for new trial is whether the verdict was supported by
     substantial evidence; where the supreme court concluded that
     appellee Metcalf's testimony alone easily constituted
     substantial evidence of agency, battery, and virulent conduct
     on the part of appellees Hansen and Rice, it held that the
     trial court did not err in denying appellees' motion for a new
     trial.

11.  Damages -- punitive damages -- no fixed standard of
     measurement -- factors that may be considered. -- There is no
     set standard for measuring punitive damages, and the
     calculation of those damages lies within the discretion of the
     jury after due consideration of all the attendant
     circumstances; the penalty must be sufficient to deter similar
     conduct on the part of the same tortfeasor, and it should be
     sufficient to deter others who engage in similar conduct; the
     jury is free to consider the extent and the enormity of the
     wrong, the intent of the parties, and the financial and social
     standing of the parties.

12.  Damages -- punitive damages -- trial court did not err in
     submitting issue to jury. -- Where the outrage claim was
     directed only at appellees Hansen and Rice, and appellee
     Metcalf did not strike appellants and also testified on their
     behalf, there were varying degrees of culpability, and the
     trial court did not err in submitting the issue of punitive
     damages to the jury.

13.  Damages -- punitive damages -- purpose -- not mandatory --
     remand not warranted on due-process grounds. -- Arkansas law,
     as evidenced by AMI 2217, does not provide for unlimited jury
     discretion in the award of punitive damages; under AMI 2217,
     punitive damages are awarded for deterrence and retribution
     purposes; AMI 2217 also instructs the jury that the imposition
     of punitive damages is not mandatory; the supreme court held
     that there were no grounds for a remand on the basis of the
     decision in Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1
     (1991).

14.  Torts -- outrage -- substantial evidence introduced. -- Where
     appellees Hansen and Rice contended that the trial court erred
     in permitting the jury to consider a verdict on the tort of
     outrage, the supreme court held that substantial evidence was
     introduced to satisfy the elements of the tort of outrage by
     means, primarily, of appellee Metcalf's testimony, which
     established a contract beating instigated by appellees Hansen
     and Rice.

15.  Jury -- objections to jury verdict -- time to object is prior
     to discharge of jury. -- The time to object to any
     irregularity in the verdict form is prior to the discharge of
     the jury.


     Appeal from Pulaski Circuit Court; John B. Plegge, Judge;
affirmed in part; reversed in part and remanded.
     R. David Lewis, for appellants.
     Mays & Crutcher, P.A., and Wallace, Hamner & Adams, by:
Michael A. Leboeuf and Dale Adams, for appellees and cross-
appellants Hansen and Rice.
     Barber, McCaskill, Amsler, Jones & Hale, P.A., by:  Michael L.
Alexander and Christopher Gomlicker, for appellee Southern Guaranty
Insurance Company.
     Wright, Lindsey & Jennings, by:  Sammye L. Taylor and Judy M.
Robinson, for appellee Continental Casualty Company.

     Robert L. Brown, Justice.*ARKREP8* 
January 22, 1996






JERRY SMITH AND BRENDA SMITH,
                   APPELLANTS,

V.

MARILYN HANSEN, LYNNE RICE,
JEFFERY SCOTT METCALF, CHRIS
YOUNG, SOUTHERN GUARANTY
INSURANCE COMPANY, AND
CONTINENTAL CASUALTY COMPANY,
                    APPELLEES,

95-315




APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT,
NO. CIV 93-3929,
HON. JOHN B. PLEGGE, JUDGE,




AFFIRMED IN PART; REVERSED IN
PART AND REMANDED.




                    Robert L. Brown, Justice.

     Appellants Jerry Smith and Brenda Smith, his wife, appeal on
several bases but primarily from an order dismissing their
negligence claim against the appellees Marilyn Hansen and Lynne
Rice and from a remittitur order reducing their verdict for
compensatory damages against Hansen and Rice from $250,000 to
$100,000.  Hansen and Rice, as appellees, assert as a cross-appeal
the same point urged by the Smiths -- that it was error for the
trial court to dismiss the Smiths' negligence claim.  In addition,
they argue on cross-appeal that the trial court erred in not
granting them a new trial and in allowing the outrage claim and the
issue of punitive damages to go to the jury.  We affirm the trial
court's dismissal of the negligence claim and its rulings on the
other matters at issue, but we reverse the order of remittitur.
     The facts of this case arise out of an allegation by the
Smiths that Hansen and Rice contracted with appellees Jeffery Scott
Metcalf and Chris Young to rob and beat the Smiths.  According to
the testimony at trial, Jerry Smith once worked for Hansen and Rice
as a salesman of medical supplies at their business known as
Electronic Finders Incorporated ("EFI") in Little Rock.  In order
to enhance his income, Smith decided to leave EFI and set up his
own medical supply firm called Sources Inc.  EFI sued Smith for
violation of a non-compete agreement in September 1991, and the
case was settled in April 1992.
     During the early morning hours of July 3, 1992, Jerry Smith
was awakened in his bedroom by a flashlight in his face.  He was
struck four or five times by the flashlight.  He fell out of bed,
and the intruder placed the barrel of a pistol behind his right ear
and threatened to "blow [Smith's] head off" if Smith looked at him
or tried anything.  The intruder accused Smith of sleeping with the
intruder's sister which Smith denied, and he then accused Smith of
cheating on Smith's business partner.  He added that the business
partner told him to collect $500 from Smith.
     The intruder next changed his story and told Smith that the
business partner offered him $500 to hurt Smith.  He added that he
was going to meet Smith's business partner that day, but Smith knew
this to be a lie because his partner was in the hospital for bypass
surgery.  His wife, Brenda, was grabbed around the neck and hit two
or three times.  She was threatened with rape and became
hysterical.  The intruder asked where the guns and jewelry were
located, but determined that there were no guns.  He apparently
decided against taking the jewelry.
     A second intruder was present for part of the beating, and he
assisted in tying up Smith and his wife.  Smith suffers from a
degenerative disc disease, and the first intruder said that he knew
Smith had a bad back.  He then kicked Smith in the small of his
back.  The first intruder repeatedly asked for more money and
eventually took approximately $250 from the Smiths and Jerry
Smith's pickup truck as well.  The truck was later recovered in
Boyle Park in Little Rock.  As a result of the incident, the Smiths
have had difficulty sleeping and have sought counseling.
     Following the attack, Jerry Smith told investigators from the
Little Rock Police Department about Hansen's and Rice's dislike for
him.  After being contacted, Hansen and Rice cooperated with the
police and led them to appellees Young and Metcalf.  Young and
Metcalf were subsequently arrested and prosecuted for robbery. 
Metcalf pled guilty and received probation.  At the ensuing
criminal trial for Young, the Smiths and Metcalf testified, as did
Hansen and Rice under promise of immunity.  The trial court
dismissed the charges against Young due to lack of evidence
corroborating the testimony of co-conspirators.  On appeal by the
State, this court declared that the trial court erred in dismissing
the charges.  See State v. Young, 315 Ark. 656, 869 S.W.2d 691
(1994).
     On June 29, 1993, the Smiths filed this lawsuit and alleged
assault and battery against Hansen, Rice, Young, and Metcalf.  The
complaint was later amended to include the tort of outrage and
negligence.  In their second amended complaint, the Smiths sought
a declaratory judgment against appellees Southern Guaranty
Insurance Company and Continental Casualty Company, both of which
insured Hansen and Rice for acts of negligence related to their
business.  The declaratory judgment was for the purpose of
determining whether the acts complained of comprised negligence. 
Prior to trial, counsel for Hansen and Rice moved to dismiss the
Smiths' negligence claim, and the trial court granted the motion.
     At trial, Scott Metcalf testified that he grew up with Chris
Young and that the two men visited the EFI offices on occasion to
see Young's sister, Rosalyn Lemons, who worked for Hansen and Rice. 
Metcalf stated that Hansen and Rice hired Young and him for $60
each to move their business furniture to a different location. 
They also hired the two men to follow an employee, Charles George,
to determine whether he was doing business with a competitor. 
Metcalf further testified that Hansen and Rice "wanted something
done" to Jerry Smith.  He stated that Rice wanted Smith to have his
arm or leg broken and that Hansen wanted damage done to Smith's
vehicles by slashing the tires or breaking the windows.  Rice, he
said, did most of the talking when they discussed the matter.  They
were told that Smith had a bad back.  Metcalf and Young agreed to
do what the women wanted for $2,000.  Rice then gave them Smith's
address.
     Metcalf described to the jury how Young and he broke into the
Smith residence through an open window.  He stated that Young went
through Brenda Smith's purse and that he tied up the Smiths on
Young's instructions.  He added that though he was not present when
it happened, it looked like Young had beaten Smith with the
flashlight.  The two men took Smith's truck and abandoned it at
Boyle Park.  A few days later, Young and Metcalf met Hansen and
Rice at a Wal-Mart store in Little Rock and received $50, according
to Metcalf.  A week after that, Young received another $100 from
the two women.  A meeting was set up at Denny's restaurant where
the two men expected to receive the balance of the $2,000 owed to
them.  When Hansen and Rice went to supposedly retrieve the money
from the trunk of their car, Young and Metcalf were arrested by
undercover police.  Metcalf stated that he agreed to the contract
beating because he was financially strapped, and he denied that
there was any misunderstanding about what Hansen and Rice wanted
done to Smith.
     Rosalyn Lemons testified that she worked for Hansen and Rice
for two years as a receptionist and that the two women wanted to
get even with Smith for going into competition against them. 
Lemons testified that she heard Rice say in front of Hansen "just
one karate chop to the back would do it."  Lemons also remembered
that Rice asked Young whether he would hurt someone for money.
     Lynne Rice admitted at trial that she had given Smith's former
address to Young but stated that Young told her about the beating
and robbery after the fact and then demanded money.  Marilyn Hansen
told the jury that she did not like Smith and wanted his vehicle
damaged, but she denied that she offered anyone payment to do this. 
She admitted that Smith's competition was hurting EFI, and that EFI
ultimately went bankrupt.  She met Young at Wal-Mart after the
beating and robbery, saw Smith's drivers license in Young's
possession, and gave Young $100 to get his car fixed.  She
testified that she offered the money as a prepayment for help in
moving office furniture during the upcoming week.  She further
testified that she told the two men at the meeting at Wal-Mart that
there had been a big misunderstanding.  Afterwards, she sought
legal advice which resulted in her cooperation with the police.
     Chris Young testified that he had previously been convicted of
theft of property and theft by receiving and had served time in
prison.  His probation was revoked because of the Smith beating,
but the criminal charges were dismissed against him, as has been
already discussed.  He stated that Hansen and Rice, who knew he had
a record, hired the two men to move their offices and follow
Charles George.  He further testified that Rice "wanted Smith
slowed down physically."  At trial, he denied giving the women a
definite price to do the beating and denied actually participating
in it.  This testimony contradicted his deposition in which he
testified that Rice promised him $2,000 for the job.  That
deposition was used to impeach Young's testimony at trial.  He
admitted that he was told that a karate chop to Smith's back "would
be a good idea."
     The jury found that Hansen and Rice through their agents
committed battery and outrage against the Smiths and awarded each
of them $250,000 in compensatory damages and $500,000 in punitive
damages against Rice and against Hansen, for a total award of
$3,000,000.  The jury further awarded each of the Smiths $25,000 in
compensatory damages and $50,000 in punitive damages against Young
and $1 in compensatory damages and $1 in punitive damages each
against Metcalf.  On motion by Hansen and Rice for remittitur, the
trial court reduced each compensatory award from $250,000 to
$100,000.  Following the trial, the trial court also granted
summary judgment in favor of Southern Guaranty and Continental
Casualty on the basis that the jury found that Hansen and Rice
acted intentionally and intentional conduct was expressly excluded
from coverage.
     The Smiths now appeal and primarily urge that the dismissal of
the negligence claim and the order of remittitur were error.  We
note that Hansen and Rice filed the first notice of appeal and the
Smiths filed a notice of cross-appeal, which was timely and
appropriate.  The Smiths, however, lodged the record and assumed
the role of primary appellants while Hansen and Rice filed briefs
styled as appellees and then raised new issues as cross-appellants. 
Though this role reversal is highly unusual, we observe no
prejudice to the parties, and we will address the points raised on
the merits.

              I. Dismissal of the Negligence Claim
     The Smiths mount three arguments in their appeal, all of which
can be subsumed under the heading of "negligence" because they deal
with dismissal of the negligence claim, refusal to instruct the
jury on negligence, and summary judgment in favor of the insurance
companies.  Hansen and Rice successfully moved to dismiss the
negligence claim before the trial court, but now also contend that
the dismissal was error by the trial court.  This, of course, they
cannot do.  They prevailed below and are bound by the trial court's
decision in their favor.  See Walker v. Kazi, 316 Ark. 616, 875 S.W.2d 47 (1994).  We will not consider their arguments on this
point on appeal.
     Appellees Southern Guaranty and Continental Casualty urge that
the dismissal of the negligence claim was appropriate because
Hansen and Rice owed no legal duty to the Smiths and further that
the trial court did not err in granting summary judgment in their
favor.  The critical factor underlying the parties' positions is
that the insurance policies will cover damages resulting from
negligence of Hansen and Rice where that is not the case for
intentional torts.
     The trial court dismissed the negligence claim but in doing so
considered matters outside of the pleadings, including depositions
of the parties, which converted the motion into one for summary
judgment.  See Ark. R. Civ. P. 12(b); First Commercial Trust Co. v.
Lorcin Eng'g, Inc., 321 Ark. 210, 900 S.W.2d 202 (1995).  With that
in mind, we turn to the central issue which is whether Hansen and
Rice owed a duty of care to the Smiths.  If no duty of care is
owed, the negligence count is decided as a matter of law, and
summary judgment is appropriate.  See First Commercial Trust Co. v.
Lorcin, supra.
     We have held that ordinarily one is not liable for the acts of
another party unless a special relationship exists between the
tortfeasor and the victim -- in this case, between Hansen and Rice
on the one hand and the Smiths on the other.  First Commercial
Trust Co. v. Lorcin, supra; Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994); Keck v. American Employment Agency, Inc., 279
Ark. 294, 652 S.W.2d 2 (1983).  Moreover, in our analysis we
further examine whether a special relationship exists between the
actor (Hansen and Rice) and the third party (Metcalf and Young)
which imposes a duty on the part of the actor to control the third
party's conduct.  Id.  This is in accordance with the Restatement
of Torts which reads:
          There is no duty so to control the conduct of a
     third person as to prevent him from causing physical harm
     to another unless
          (a) a special relation exists between the actor and
     the third person which imposes a duty upon the actor to
     control the third person's conduct, or
          (b) a special relation exists between the actor and
     the other which gives to the other a right to protection.
Restatement (Second) of Torts  315 (1965).
     The Smiths and Hansen and Rice fervently maintain that a claim
for negligence is present under these facts.  The essence of their
argument is that Hansen and Rice negligently proclaimed their
desire to see Jerry Smith hurt and his property damaged in the
presence of a convicted felon, Chris Young, who took their
statements seriously and acted on them.  Young, according to the
negligence theory, perpetrated the crime against the Smiths with
Metcalf's help, but absent any agreement with Hansen and Rice or
clear direction from them to injure Jerry Smith.
     We must disagree that a bona fide claim of negligence exists. 
Clearly, no special relationship existed between Hansen and Rice
and the Smiths at the time of the beating.  The question then
becomes whether a special relationship giving rise to a duty to
control existed at that time between Hansen and Rice and the two
perpetrators of the crime.  We fail to see that it did, excluding
as we must the contract to beat Smith for $2,000 from our analysis. 
That leaves only an agreement between the parties to move furniture
and a vague mission to follow an EFI employee named Charles George. 
There is nothing to suggest that Metcalf and Young were employees,
agents, or otherwise subject to the control or guidance of Hansen
and Rice.
     This is markedly different from the case of Keck v. American
Employment Agency, Inc., supra.  In Keck, the employment agency
sent a customer, Stacey Keck, to interview with a prospective
employer, Joiner, who raped her.  In that case, we based our
decision in part on the degree of control the agency had over
Joiner, which could have been exercised by the agency's making
further checks on him.  In the instant case, there was no
comparable or analogous business relationship between Hansen and
Rice and the Smiths which involved Metcalf and Young.  We conclude
that no such relationship existed among the parties under these
facts.
     Nor do we view this as a matter where Hansen and Rice induced
or encouraged tortious behavior by Metcalf and Young against the
Smiths, as we held to be the case in Cobb v. Indian Springs, Inc.,
258 Ark. 9, 522 S.W.2d 383 (1975).  See also Restatement (Second)
Torts  876 (1979).  In Cobb, a security guard for an Indian
Springs mobile home park asked a 16-year-old to demonstrate the
speed of his car through the park which resulted in injury to a
young girl who was hit by the car.  We held that a jury question
was presented in the case and observed that the security guard was
in a position of authority and was held in respect by the young
people of the park, which could have influenced and encouraged the
teenager to demonstrate the speed of the car.  We view that
consideration as analogous to the tortfeasor's having some control
over the third party who causes the injury and, again, to be a
factor which is absent in the case before us.  Nor do we view the
testimony of Hansen and Rice, if you eliminate the contract, as
constituting an inducement or encouragement to beat the Smiths, or
even a suggestion that they do so.
     In short, we agree with the trial court that this case
presented a cause of action of intentional tort premised on a
contract to beat but not a cause of action for negligence.  Without
the existence of some special relationship, or evidence of
encouragement to third parties by one in a position of some control
or authority over them, no duty of care flowed from Hansen and Rice
to the Smiths.  Offhand statements of dislike to a third party
cannot constitute negligence in the absence of such a relationship. 
We hold that the trial court appropriately granted summary judgment
on this issue.

                           II. Outrage
     For their second point, the Smiths assert that the trial court
erred in refusing to modify the outrage instruction, AMI 404. 
Specifically, they urge that extreme mental anguish beyond what a
reasonable person is expected to endure as set out in AMI 404 is an
impossible standard to meet.
     The Smiths have no standing to make this argument.  The trial
court instructed the jury on the tort of outrage using AMI 404, and
the jury returned a verdict in favor of the Smiths on this claim. 
As the prevailing party, the Smiths cannot now contend that AMI 404
should have been given in modified form.  See Walker v. Kazi,
supra; Bynum v. Savage, 312 Ark. 137, 847 S.W.2d 705 (1993).  This
point is meritless.

                         III. Remittitur
     We turn next to the Smiths' argument that the trial court
erred in reducing the verdict awards from $250,000 to $100,000.  We
have held that a trial court may not substitute its judgment for
the jury's when there is a basis in the evidence for the award and
when there is no evidence, appropriately objected to, which tends
to create passion or prejudice.  McNair v. McNair, 316 Ark. 299,
870 S.W.2d 756 (1994); Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981).  We review the issue of remittitur de novo and
determine whether the amount of the judgment shocks the conscience
of this court.  Id.
     In this case, the trial court made no finding that the jury
award was the result of passion or prejudice (see Ark. Code Ann. 
16-64-123 (1987)), and we conclude that the compensatory damages
awarded do not shock the conscience of this court.  What is at
issue here is an assault and battery which took place during the
dead of night when the Smiths were in bed in their home.  Jerry
Smith was roused from his bed, beaten, and threatened with a
pistol, and Brenda Smith was threatened with rape and choked.  Both
Smiths were tied up.  The experience was unquestionably and
understandably traumatic and cause for considerable mental anguish. 
Under these facts, we do not find the jury award of $250,000 as
compensatory damages for each Smith against Hansen and Rice to be
unconscionable.  The remittitur order is reversed, and the matter
is remanded with directions to reinstate the original verdicts of
$250,000.

                        IV. Cross-Appeal
     Hansen and Rice raise several issues in their cross-appeal,
none of which has merit.  They allege, initially, that the trial
court erred in not granting them a new trial based on the
excessiveness of the verdict.  The standard of review for the
denial of a motion for new trial is whether the verdict was
supported by substantial evidence.  Davis v. Davis, 313 Ark. 549,
856 S.W.2d 284 (1993); Scott v. McClain, 296 Ark. 527, 758 S.W.2d 409 (1988).  Metcalf's testimony alone easily constitutes
substantial evidence of agency, battery, and virulent conduct on
the part of Hansen and Rice.  As already discussed, evidence
justifying considerable compensatory damages for mental anguish
abounds, and the punitive damages do not strike this court as
excessive.  The trial court did not err in denying the motion.
     Hansen and Rice next argue that the trial court was in error
in permitting the issue of punitive damages to go to the jury. 
They particularly disagree with the large discrepancy between the
punitive damages assessed against them and the damages assessed
against Metcalf and Young.  There is no set standard for measuring
punitive damages, and the calculation of those damages lies within
the discretion of the jury after due consideration of all the
attendant circumstances.  Cater v. Cater, 311 Ark. 627, 632, 846 S.W.2d 173 (1993).  The penalty must be sufficient to deter similar
conduct on the part of the same tortfeasor, and it should be
sufficient to deter others who engage in similar conduct.  Id.  The
jury is free to consider the extent and the enormity of the wrong,
the intent of the parties, and the financial and social standing of
the parties.  McNair v. McNair, supra.
     Hansen and Rice point out that no evidence was presented on
their financial condition.  They complain that they were prejudiced
because, with no evidence in the record, the jury was free to
assume that they could afford to pay a sizable punitive judgment,
which they cannot.  The Smiths respond that no showing of financial
condition is required, and they emphasize the varying degrees of
culpability to justify the discrepancy in the awards.  We note that
the outrage claim was directed only at Rice and Hansen, and further
that Metcalf was the least culpable in that he did not strike the
Smiths.  He also testified on their behalf.  The trial court did
not err in submitting the issue of punitive damages to the jury.
     Hansen and Rice further argue that a 1991 U.S. Supreme Court
opinion requires a remand in this case on the issue of punitive
damages.  In Pacific Mutual Life Ins. Co v. Haslip, 499 U.S. 1
(1991), the Court analyzed Alabama's law on punitive damages and
observed that it has more than once approved the common law
approach for assessing punitive damages.  Haslip, 499 U.S.  at 15. 
However, the Court did allude to the fact that due process
considerations may come into play when unlimited jury discretion
leads to extreme results in the punitive damages award.  With
general concerns of reasonableness in mind, the court held that the
award in that case did not violate the Due Process Clause of the
Fourteenth Amendment.
     Our law, as evidenced by AMI 2217, is like Alabama's and does
not provide for unlimited jury discretion.  Punitive damages, under
AMI 2217, are awarded for deterrence and retribution purposes.  AMI
2217 also instructs the jury that the imposition of punitive
damages is not mandatory.  We find no grounds for a remand on the
basis of the Haslip decision.  See J.B. Hunt Transport, Inc. v.
Doss, 320 Ark. 660, 899 S.W.2d 464 (1995).
     Finally, Hansen and Rice contend that the trial court erred in
permitting the jury to even consider a verdict on the tort of
outrage.  They submit that there was no evidence to support the
finding that their conduct was so outrageous and extreme as to be
regarded as atrocious and utterly intolerable.  Again, they submit
that their conduct was negligent at best.  They implore this court
to remand the case with the tort of outrage claim removed.  We
disagree.  Substantial evidence was introduced to satisfy the
elements of the tort of outrage by means, primarily, of Metcalf's
testimony which established a contract beating instigated by Hansen
and Rice.
     Hansen and Rice further urge that a general verdict amount
renders it impossible to know whether the jury award was based on
battery or outrage.  Because we do not consider submission of the
outrage count to the jury to be error, this point presents no basis
for reversal.  In addition, we have held that the time to object to
any irregularity in the verdict form is prior to the discharge of
the jury.  P.A.M. Transp., Inc. v. Arkansas Blue Cross and Blue
Shield, 315 Ark. 234, 868 S.W.2d 33 (1993); Wal-Mart Stores, Inc.
v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991).  Hansen and Rice
raised no objection to the verdict forms either before or after the
verdict was rendered.
     Affirmed in part.  Reversed in part and remanded.
     Glaze, J., not participating.