Robinson v. Robinson

Harry G. ROBINSON, Jr. and Miriam Robinson v.
Heather Renee ROBINSON

95-763                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 29, 1996


1.   Torts -- parental immunity doctrine -- doctrine inapplicable
     where appellant was unemancipated minor at the time of the
     alleged tort. -- A willful tort committed by a parent against
     his child is beyond the scope of the parental immunity
     doctrine, thus the doctrine does not preclude a child from
     suing his parent for willful and wanton conduct; however, the
     parental immunity doctrine does bar an unemancipated minor
     from maintaining an action for an involuntary tort against her
     parent; the parental immunity doctrine is based upon the
     rationale that to permit such a suit would interfere with the
     parent's authority over the child, thereby encouraging
     disobedience and interfering with family harmony; the parental
     immunity doctrine is the law in this jurisdiction; the
     doctrine is applicable in this situation where, although
     appellee had attained her legal age when this action was
     commenced, she was an unemancipated minor at the time of the
     alleged tort.  

2.   Negligence -- negligence the sole theory for liability imposed
     -- failure to instruct the jury on the theory of intentional
     tort -- prejudicial error found. -- Negligence was the sole
     theory for the liability of the appellant/mother that was
     alleged in the complaint and upon which the jury was
     instructed, appellee neither amended her complaint nor
     proffered any jury instruction as to willful and wanton
     conduct or any theory of intentional tort as an alternative
     theory of liability for her mother; because the jury was not
     instructed on any theory of intentional tort as a basis for
     the mother's liability, the jury's finding of liability was
     based on a theory of negligence, and, therefore, appellants
     demonstrated prejudicial error; the judgment against the
     appellant/mother was reversed and the action against her
     dismissed.

3.   Damages -- jury determines amount of damages -- trial court
     has some power to put defective verdict in form carry out the
     intention of the jury, but may not substitute its conclusion
     as to a material matter. -- It is well-established that the
     jury is the judge of the question of the amount of damages as
     well as of the question of liability; nonetheless, in
     fashioning the judgment, the court has the power to put a
     manifestly irregular or defective verdict in such form as to
     make it conform to the intention of the jury, and carry their
     findings into effect, where the intention can be ascertained
     with certainty; the trial court is not authorized, however, to
     invade the province of the jury by substituting its conclusion
     as to a material matter.  

4.   Damages -- trial court impermissibly invaded the province of
     the jury to determine the amount of damages -- new trial
     ordered for determination of damages and liability. -- Where
     the judgment altered the verdict's award in trust by awarding
     damages against the appellant/father, on an outright basis, in
     an amount that included the entire $25,000.00 sum, the
     judgment did not conform to the jury's intention, with any
     certainty, as regards the amount of the damages award for
     future medical expenses, and, to that extent, the trial court
     impermissibly invaded the province of the jury to determine
     the amount of damages; the judgment against appellant was
     reversed and remanded for a new trial to include both damages
     and liability issues.  

5.   Damages -- award of punitive damages not error -- record did
     not support appellant's argument. -- Appellant's argument that
     the $20,000.00 punitive damages award against him individually
     was erroneous in the absence of a lawful verdict for
     compensatory damages was without merit; in light of the
     $4,335.00 award for past medical expenses, based on the
     testimony of a psychologist that appellee had an outstanding
     unpaid bill in that amount for her services, the record did
     not support appellant's premise for his argument.

6.   Appeal & error -- objection at trial level needed to reach
     issue on appeal -- no objection made. -- Where the trial court
     declined to rule on the motion with respect to one party, it
     was necessary for appellant to make a specific objection
     during the trial to preserve the argument for appeal; the
     record, however, failed to show that any such objection was
     made.     

7.   Evidence -- admission of statement may have been error --
     error not shown to be prejudicial. -- Admission of the
     challenged statement may have violated the trial court's
     ruling on the motion in limine, but no prejudicial error was
     demonstrated; it was not contended that Ark. R. Evid. Rule 702
     was violated or that the jury was fully competent to determine
     whether appellee's refusal to give her last name to the
     Center's rape crisis service was consistent with sexual abuse;
     appellee provided explicit testimony of the alleged abuse; and
     the witness's testimony was based on her own personal
     knowledge of behavior in a rape crisis center.



     Appeal from Sebastian Circuit Court, Fort Smith District;
Floyd G. Rogers, Judge; reversed and dismissed in part; reversed
and remanded in part.
     Eddie N. Christian and Matthew Horan, for appellants.
     Sam Sexton, Jr., for appellee.

     Donald L. Corbin, Justice. 
     *ADVREP3* 
1-29-96





HARRY G. ROBINSON, JR. and
MIRIAM ROBINSON,
                    APPELLANTS,

V.

HEATHER RENEE ROBINSON,
                    APPELLEE,



95-763



APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT, CIV 91-869, 
HON. FLOYD G. ROGERS, JUDGE,





REVERSED AND DISMISSED IN PART;
REVERSED AND REMANDED IN PART.

                   Donald L. Corbin, Justice.

     After a jury trial in the Sebastian County Circuit Court,
appellants, Harry G. Robinson, Jr., and his spouse, Miriam
Robinson, appeal the judgment in favor of their adult daughter,
appellee, Heather Renee Robinson, in her suit against Mr. Robinson
for willful, intentional and malicious acts of sexual abuse
committed against appellee during her minority, and against Mrs.
Robinson for negligence in failing to prevent the abuse. 
Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R.
1-2(a)(16).  For the reasons stated below, we reverse the judgment
against Mr. Robinson and remand for retrial, and we reverse and
dismiss the action against Mrs. Robinson.  
           Reversal of judgment against Mrs. Robinson  
     Relying upon Attwood v. Estate of Attwood, 276 Ark. 230, 633 S.W.2d 366 (1982), appellants timely objected at trial to several
instructions guiding the jury in its consideration of appellee's
negligence claim against Mrs. Robinson.  The basis for appellants'
objection to the instructions was that, in the absence of willful
and wanton conduct by Mrs. Robinson, appellee had no cause of
action against her mother.  The trial court stated that
Mrs. Robinson's conduct testified to would be willful and wanton
and overruled the objection, which appellants now renew on appeal. 
     In Attwood, this court held that a willful tort committed by
a parent against his child was beyond the scope of the parental
immunity doctrine, thus the doctrine did not preclude a child from
suing his parent for willful and wanton conduct.  However, the
parental immunity doctrine, as announced in Rambo v. Rambo, 195
Ark. 832, 114 S.W.2d 468 (1938), does bar an unemancipated minor
from maintaining an action for an involuntary tort against her
parent.  The parental immunity doctrine is based upon the rationale
that to permit such a suit would interfere with the parent's
authority over the child, thereby encouraging disobedience and
interfering with family harmony.  Attwood, 276 Ark. 230, 633 S.W.2d 366.  The parental immunity doctrine is the law in this
jurisdiction.  Carpenter v. Bishop, 290 Ark. 424, 720 S.W.2d 299
(1986); Thomas v. Inmon, 268 Ark. 221, 594 S.W.2d 853 (1980).  We
hold that the doctrine is applicable on the facts of this case
where, although appellee had attained her legal age when this
action was commenced, she was an unemancipated minor at the time of
the alleged tort.  Attwood, 276 Ark. 230, 633 S.W.2d 366, n.3 &
accompanying text. 
     Negligence was the sole theory for the liability of
Mrs. Robinson that was alleged in the complaint and upon which the
jury was instructed.  Appellant neither amended her complaint nor
proffered any jury instruction as to willful and wanton conduct or
any theory of intentional tort as an alternative theory of
liability for Mrs. Robinson.  Because the jury was not instructed
on any theory of intentional tort as a basis for Mrs. Robinson's
liability, we conclude that the jury's finding of liability was
based on a theory of negligence, and, therefore, appellants have
demonstrated prejudicial error.  Carpenter, 290 Ark. 424, 720 S.W.2d 299; Thomas, 268 Ark. 221, 594 S.W.2d 853.  On this point,
we reverse the judgment against Mrs. Robinson and dismiss the
action against her.      
     In light of our dismissal of the case against Mrs. Robinson,
we address the remaining points of appeal only as regards the
judgment against Mr. Robinson.     
            Reversal of judgment against Mr. Robinson
     Mr. Robinson asserts several points of error as regards the
form of the judgment, among them that the trial court erred in
altering the damages award against him, from the verdict's award of
a sum certain in a ten-year trust, subject to reversion in Mr.
Robinson, to the final judgment's award of the sum certain
outright.  We agree and reverse the judgment against Mr. Robinson
on this point.   
     The operative facts are as follows.  The jury returned a
separate verdict against Mr. Robinson that provided, in pertinent
part:
We, the Jury, find in favor of Heather Renee Robinson
Lineberry against defendant Harry Robinson, Jr., and
fix damages at one-half of the $4,335.00 already owed,
plus half court costs and attorney's fees, and Twelve
Thousand Five Hundred ($12,500.00) in a trust fund for
psychological and psychiatric therapy, which must be used
in ten (10) years or the money goes back to Harry
Robinson court-appointed trust.

In addition, the jury awarded punitive damages against Mr. Robinson
in the amount of $20,000.00.  After the verdict was read, the
record reflects that the trial court inquired of the jury if it
intended that a trust fund be set up for appellee for her
psychiatric-type bills, and that the jurors nodded affirmatively. 
     The trial court's judgment provided, in pertinent part:
     Based upon such Verdicts, the Court finds that it
was the manifest intention of the Jury to compensate the
Plaintiff for past and future medical expenses, for costs
and attorneys fees, and to award punitive damages.  The
Court further finds, however, that the Jury had no
authority to impose a trust upon the future medical
expenses and lacked authority to award attorneys fees.

     . . . .

     The Court further finds that Plaintiff, Heather
Renee Robinson, should have and recover of and from the
separate Defendant, Harry G. Robinson, Jr., the sum and
amount of $34,667.50.

In addition, the judgment added the amount of $1,000.00 in
previously-imposed and unpaid sanctions to the judgment against
Mr. Robinson, individually, and awarded costs against both
appellants, jointly and severally, in the amount of $977.25.
     It is well-established that the jury is the judge of the
question of the amount of damages as well as of the question of
liability.  Womack v. Brickell, 232 Ark. 385, 337 S.W.2d 655
(1960); Arkansas-Louisiana Gas Co. v. Campbell, 203 Ark. 307, 156 S.W.2d 255 (1941).  Nonetheless, in fashioning the judgment, "`the
court has the power to put a manifestly irregular or defective
verdict in such form as to make it conform to the intention of the
jury, and carry their findings into effect, where the intention can
be ascertained with certainty.'"  Trailmobile v. Robinson, 227 Ark.
915, 925, 302 S.W.2d 786, 792 (1957) (quoting, with approval, Vol.
89, Corpus Juris Secundum, 198); accord Traylor v. Huntsman, 253
Ark. 704, 488 S.W.2d 30 (1972).  The trial court is not authorized,
however, to invade the province of the jury by substituting its
conclusion as to a material matter.  Trailmobile, 227 Ark. 915, 302 S.W.2d 786.
     In this case, the jury effectively awarded as little as $0.00
and as much as $25,000.00 for appellee's future medical expenses by
imposing a ten-year trust upon the sum of $25,000.00, subject to
Mr. Robinson's reversionary interest in any trust amount remaining
upon trust termination.  The jury confirmed its intention in
response to the trial court's inquiry after the verdict was read. 
The judgment, however, altered the verdict by awarding damages
against Mr. Robinson, on an outright basis, in an amount that
included the entire $25,000.00 sum.  The judgment, therefore, did
not conform to the jury's intention, with any certainty, as regards
the amount of the damages award for future medical expenses, and,
to that extent, the trial court impermissibly invaded the province
of the jury to determine the amount of damages.  
      On this point, we reverse the judgment against Mr. Robinson
and remand for a new trial that will include both damages and
liability issues.  Smith v. Walt Bennett Ford, Inc., 314 Ark. 591,
864 S.W.2d 817 (1993).
     We find Mr. Robinson's other arguments are meritless, but
discuss them for the benefit of the trial court to the extent they
are likely to arise upon his retrial.
     Mr. Robinson argues that the $20,000.00 punitive damages award
against him individually was erroneous in the absence of a lawful
verdict for compensatory damages.  In light of the $4,335.00 award
for past medical expenses, based on the testimony of Kathleen
Kralik, a psychologist, that appellee had an outstanding unpaid
bill in that amount for her services, we find the record does not
support Mr. Robinson's premise for his argument.
     Mr. Robinson argues that it was error to admit certain
testimony from Eva Rush, director of the Western Arkansas
Counselling and Guidance Center, and Ms. Kralik, both of whom were
consulted by appellee regarding her alleged sexual abuse.  Mr.
Robinson filed a motion in limine seeking to exclude opinion
testimony from Ms. Kralik and Ms. Rush as to whether appellee was
sexually abused, whether appellee was telling the truth, and
whether appellee's statements or conduct were consistent with
sexual abuse.  The trial court declined to rule on the motion as to
Ms. Kralik, but granted the motion as to Ms. Rush.     
     Because the trial court declined to rule on the motion with
respect to Ms. Kralik, it was necessary for Mr. Robinson to make a
specific objection during the trial to preserve this argument for
appeal.  Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995). 
The record, however, fails to show that any such objection was
made.     
     With respect to Ms. Rush's testimony, Mr. Robinson contends
that three statements were erroneously admitted.  First, on cross-
examination, Ms. Rush testified that appellee stated that she felt
"she had to get out of there and things were not getting better." 
Second, on redirect examination, Ms. Rush testified that her
impression of appellee's aforementioned statement was that appellee
wanted to get away from her father, not her home.  We find no
error.  Neither of these challenged statements was within the scope
of the trial court's exclusionary ruling.  Further, we observe that
the challenged cross-examination testimony was drawn out by
Mr. Robinson's question to the witness, and, that the challenged
redirect examination testimony was properly offered to clarify or
rebut other cross-examination testimony elicited by Mr. Robinson
from the witness that appellee's "main goal seemed to be getting
away from the home." 
     The third challenged statement was given in direct examination
when Ms. Rush testified that it was not an unusual occurrence in
rape crisis for a person to want to withhold her name.  Prior to
that statement, Ms. Rush had testified that appellee had refused to
give her last name when appellee had contacted the Center's rape
crisis service.  Admission of the challenged statement may have
violated the trial court's ruling on the motion in limine, but no
prejudicial error is demonstrated.  Mr. Robinson relies upon our
holdings in Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987),
and Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986), to
illustrate that prejudicial error occurred.  We find this authority
unpersuasive on the facts of this case.  In Johnson, admission of
expert testimony on the issue of whether a child's statements were
consistent with sexual abuse was held error, pursuant to Ark. R.
Evid. 702, because the jury was able to understand and draw its own
conclusions without the aid of an expert; no prejudice was
demonstrated due to the child's explicit testimony of abuse.  Here,
it is not contended that Rule 702 was violated or that the jury was
fully competent to determine whether appellee's refusal to give her
last name to the Center's rape crisis service was consistent with
sexual abuse; in addition, appellee provided explicit testimony of
the alleged abuse.  In Russell, admission of expert testimony on
the issue of whether child sexual abuse had occurred was held to be
prejudicial error where the testimony was based on nothing but the
medical history given to the witness by the child.  Here,
Ms. Rush's testimony was based on her own personal knowledge of
behavior in a rape crisis center.
     For the reasons stated hereinabove, we reverse the trial
court's judgment against both appellees.  The case against Miriam
Robinson is dismissed.  The case against Harry Robinson, Jr. is
remanded for a new trial that will include both damages and
liability issues.