New Prospect Drilling Co. v. First Commercial Trust, N.A. as Administrator of the Estate of Jolene Marie Jones, Deceased

Annotate this Case
NEW PROSPECT DRILLING CO. v. FIRST COMMERCIAL
TRUST, N.A. as Administrator of the Estate of
Jolene Marie Jones, Deceased

97-615                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered April 9, 1998


1.   Evidence -- expert testimony -- provisions of Ark. R. Evid.
     702. -- Arkansas Rule of Evidence 702 provides that if
     scientific, technical, or other specialized knowledge will
     assist the trier of fact to understand the evidence or to
     determine a fact in issue, a witness qualified as an expert by
     knowledge, skill, experience, training, or education, may
     testify thereto in the form of an opinion or otherwise.

2.   Evidence -- expert witnesses -- trial court's discretion. --
     Whether a witness may give expert testimony rests largely
     within the sound discretion of the trial court, and that
     determination will not be reversed absent an abuse of
     discretion; on appeal, the appellant must demonstrate that the
     trial court has abused its discretion.

3.   Evidence -- expert witnesses -- opinion testimony by police
     officers allowed. -- Where an officer investigates a vehicle
     accident, observes sufficient relevant evidence such as skid
     marks, debris from the vehicles, position of the vehicles, or
     makes other observations, and where he can rationally form an
     opinion about the point of impact, he should be allowed to
     testify as to that opinion; it is for the trial court to
     determine whether proper foundation has been laid for the
     testimony. 

4.   Evidence -- opinions given by officer permissible -- refusal
     to declare oneself expert does not disqualify officer. --
     Where the deputy's testimony dealt with the point of impact,
     and he detailed his academy training and work experience and
     described his investigation at the scene that led him to reach
     his conclusions, his testimony dealt with matters that have
     been found permissible as opinion testimony; a law officer's
     modest refusal to declare himself an expert does not
     disqualify the officer.

5.   Trial -- two trials held -- judge not prohibited from changing
     ruling under circumsatnces. -- Although the judge in the first
     trial sustained objections to the deputy's testimony,
     appellee's counsel spent more effort in qualifying the deputy
     in the second trial than in the first and there was more of a
     basis for determination; a judge in such a circumstance is not
     prohibited from changing his ruling.


6.   Appeal & error -- argument raised for first time on appeal --
     no reversal possible. -- The supreme court did not reach
     appellant's argument that the deputy's opinions lacked
     foundation because they were raised for the first time on
     appeal; the supreme court does not reverse on the basis of
     arguments not raised in the trial court. 

7.   Appeal & error -- attorney misconduct alleged -- no prejudice
     toward appellant found. -- Although appellant cited numerous
     examples of alleged attorney misconduct that it argued led to
     the verdict of $3 million, most of the references by witnesses
     to the fact that the case had been tried once before appeared
     to be inadvertent; from the record, the supreme court could
     not say that the references created any prejudice toward
     appellant.

8.   Attorney & client -- trial court refused to allow certain
     questions of appellee's own attorney -- attorney not witness -
     - no showing that ruling was erroneous. -- Where appellant
     attempted to inquire of the witness whether appellee's
     attorney had asked that he serve as an expert for the
     appellee, thus to prove that appellee's counsel was
     questioning the trustworthiness of a witness he had previously
     attempted to procure for his client, the trial court refused
     to allow it on the ground that the appellee's attorney would
     have to become a witness to refute any such evidence and that
     would not be permitted; appellant did not demonstrate that the
     ruling was in error.
9.   New trial -- instances of attorney misconduct alleged --
     denial of motion within trial court's discretion. -- Of the
     two alleged instances of attorney misconduct addressed by the
     supreme court, neither was found sufficient to constitute a
     "flagrant transgression" such that a new trial should have
     been awarded; the responses of the trial court to the
     objections and the new-trial motion were within the trial
     court's discretion, and the supreme court was not given
     sufficient reason to reverse on the basis of counsel's
     misconduct.

10.  New trial -- alleged juror misconduct -- applicable standard.
     -- On denial of a motion for a new trial based on alleged
     juror misconduct the standard to be applied is whether the
     jurors' misconduct created a reasonable possibility of
     prejudice; on review the supreme court will reverse the denial
     of a motion for a new trial only if there has been a manifest
     abuse of discretion.  

11.  New Trial -- juror misconduct alleged -- no abuse of
     discretion in denial of new-trial motion. -- The appellate
     court could not say that the trial court's overruling of the
     new-trial motion, which was based upon an allegation
     concerning misconduct of the jury in its use of toy cars that
     were brought into the jury room for a demonstration, was a
     manifest abuse of discretion; a jury may use "props" to
     reenact an event; in view of the clear evidence as to the
     nature of the vehicles involved in the case and the obvious
     differences between them and the toy cars, the appellate court
     could not say that there was any reasonable possibility of
     prejudice resulting from their presence in the jury room or
     that there was an abuse of discretion in the denial of the
     new-trial motion. 

12.  Damages -- evidence sufficient to show conscious pain and
     suffering -- damage award in that respect did not shock
     conscience of court. -- Where the a witness  on the scene of
     the accident testified that she had the definite impression
     that the victim understood her and responded to her
     instructions, the supreme court could not say the evidence was
     insufficient to show that there was conscious pain and
     suffering on the part of the decedent or that the damage award
     in that respect shocked the conscience of the court.

13.  Damages -- damages awarded to two family members who neither
     testified at trial nor had evidence of mental anguish
     presented on their behalf -- awards removed and judgment so
     modified. -- Damages were awarded to two family members who
     did not testify at the trial and no other witness presented
     evidence of mental anguish on their part; although Act 589 of
     1993 permits recovery by a family member of a decedent for
     grief normally associated with the loss of a loved one, grief
     must be demonstrated to some degree; the judgment was modified
     by removing those awards.   


     Appeal from Pope Circuit Court; John S. Patterson, Judge;
affirmed as modified.
     Tatum, Rife & Tatum, by:  Tom Tatum; Clevenger, Angel &
Miller, by:  Richard L. Angel; and Barrett & Deacon, by:  D.P.
Marshall, Jr., for appellant.
     Peel Law Firm, P.A., by: Richard L. Peel, for appellees.

     David Newbern, Justice.
     This is a negligence case resulting from an automobile-truck
accident in which Jolene Marie Jones died.  Ms. Jones was driving
a Mercury Topaz that collided with a Ford Ranger pickup truck
driven by Carl Lewallen and owned by Mr. Lewallen's employer,
appellant New Prospect Drilling Co. ("New Prospect").  As the
result of a jury's verdict, appellee First Commercial Trust, N.A.
("First Commercial"), administrator of Ms. Jones's estate,
recovered $3 million in damages against New Prospect.  New Prospect
argues for reversal on account of jury misconduct and misconduct by
First Commercial's attorney during the trial.  It also contends
that the Trial Court erred by allowing a deputy sheriff to give
expert testimony and that the damages awarded were not supported by
substantial evidence.  We affirm the judgment as modified to reduce
the damages by $100,000.

                       1. Expert testimony
     The action was originally brought against Mr. Lewallen and New
Prospect.  A nonsuit was taken with respect to Mr. Lewallen.  A
trial began in June 1996.  A mistrial occurred, and the retrial
resulting in the verdict favoring First Commercial was held in
January 1997.  
     The accident occurred on two-lane Pope County Road 81 north of
London.  Ms. Jones was westbound, and Mr. Lewallen was eastbound. 
The issue of fault depended upon whether one or both of the
vehicles crossed the center line.  Mr. Lewallen testified he had
dropped his watch inside his truck and had pulled off on the
shoulder to retrieve it.  Having done so, he pulled back onto the
road, and the wreck occurred shortly thereafter.  He remembered
nothing about how it happened, and there were no other eyewitnesses
to the crash.
     In the first trial, First Commercial presented the testimony
of Pope County Deputy Sheriff Danny Sorey who investigated the
accident.  In response to questions about how the accident
happened, Deputy Sorey said that the Ford pickup was found
straddling the center line and that a skid mark, shown in
photographs to have been in the westbound lane, came from the right
front wheel of the pickup.  Objections to that testimony were
sustained on the basis that Deputy Sorey had not been qualified as
an expert.
     At the second trial, New Prospect sought a ruling that Deputy
Sorey not be allowed to offer expert opinion testimony.  In
response, counsel for First Commercial stated he would "qualify"
the witness by presenting evidence of his education and experience
in accident investigation.  New Prospect asked the Trial Court to
review the record of the previous trial and to assure that the
rulings on the questions would be the same.  The Trial Court
responded that he would hope to follow the same "line" but that he
would have to hear the questions asked this time before ruling.
     On direct examination, First Commercial's counsel, Richard
Peel, asked Deputy Sorey a number of questions about his accident-
investigation training at the law-enforcement academy.  Deputy
Sorey recalled having studied various aspects of accident
investigation and added that he had been investigating accidents
for six years at the time this one occurred.  He said he had
benefitted from the experience of others, including state police
officers, with whom he had worked accidents.
     Mr. Peel asked Deputy Sorey if, "based on [his] education and
experience in [his] investigation of this accident," he had an
opinion as to which tire on the Ford pickup was skidding.  As the
skid mark in question went into the westbound lane of traffic, an
answer that it was the right front tire of the truck would place
the truck squarely in the oncoming lane of traffic in which Ms.
Jones had the right of way.  Counsel for New Prospect objected on
the ground that "[t]he proper foundation has not been laid . . .
nor is he qualified to render that opinion. . . ."  The Trial Court
overruled the objection.  Deputy Sorey testified that it was the
truck's right front tire and further opined, over further
objection, that the wreck occurred in the westbound lane.
     On cross-examination, New Prospect questioned the deputy's
credibility.  Deputy Sorey acknowledged and reiterated his
deposition testimony in which he had said he was not an expert.  He
admitted that his drawings of the scene in front of the jury were
different from his field-note drawings, which apparently suggested
the wreck occurred in Lewallen's eastbound lane.  He initially had
the Topaz in the eastbound lane, but that was error, he said, and
he made a second drawing to correct that mistake.  He conceded that
most of the truck was in the eastbound lane after the accident and
that he had not noted in his field notes whether there were any
gouge marks at the scene on the day of the accident.  The marks had
been covered, he explained, and did not become visible until later. 
The deputy conceded that he "never got underneath the Ford Ranger"
and attempted to follow the skid marks to either tire.     
     Although the cross-examination was effective and perhaps
raised some questions about the deputy's thoroughness in
investigating the scene, the abstract does not show any motion from
New Prospect to strike his testimony on the ground that his expert
qualifications had been somehow disproved in view of what had come
out on cross-examination.   
     Each side presented an expert accident reconstructionist to
testify about who was responsible for the accident.  Deputy Sorey
was a second expert witness for First Commercial on the issue of
who had caused the collision. 
     New Prospect frames the issue as whether Sorey was properly
declared an expert.  Arkansas R. Evid. 702 provides: "If
scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise."  We have held that, "[w]hether a
witness may give expert testimony rests largely within the sound
discretion of the trial court, and that determination will not be
reversed absent an abuse of discretion.  On appeal, the appellant
must demonstrate that the trial court has abused its discretion." 
Wade v. Grace, 321 Ark. 482, 486, 902 S.W.2d 785, 788 (1995)
(citations omitted).
     In Smith v. Davis, 281 Ark. 122, 663 S.W.2d 165 (1983), we
acknowledged that our prior cases had precluded police officers
from giving opinions as to the causes of accidents.  We recognized,
however, that other jurisdictions held to the contrary.  The
holding of the case appeared as follows:

          We need not expand our decision beyond the facts of this
     case:  Where an officer investigates a vehicle accident,
     observes sufficient relevant evidence such as skid marks,
     debris from the vehicles, position of the vehicles, or makes
     other observations, and where he can rationally form an
     opinion about the point of impact, he should be allowed to
     testify as to that opinion.
          It is for the trial court to determine whether
     proper foundation has been laid for the testimony.  See
     Gruzen v. State, 276 Ark. 149, 634 S.W.2d 92 (1982);
     Dixon v. State, 268 Ark. 471, 597 S.W.2d 77 (1980).     

Id. at 125, 663 S.W.2d  at 166.
     We have continued to hold in favor of allowing such opinions. 
In Sledge v. Meyers, 304 Ark. 301, 303-04, 801 S.W.2d 650, 651
(1991), we held that the Trial Court had erroneously prohibited the
trooper from stating "her opinion about the location of the
vehicles at the moment of impact."  We noted in the Sledge case
that, in Ferrell v. Southern Farm Bureau Cas. Ins. Co., 291 Ark.
322, 724 S.W.2d 465 (1987), "we expressly said a qualified trooper
could state `who crossed over a center line.'"  Sledge v. Meyers,
304 Ark. at 303, 801 S.W.2d  at 651.
     Deputy Sorey testified about the kinds of things that appear
to be permissible under the cases mentioned above.  His testimony
dealt with the point of impact: in what lane did the collision
occur, and what tire on Lewallen's truck caused the skid mark?  He
detailed his academy training and work experience and described his
investigation at the scene that led him to reach his conclusions. 
We have been cited to no authority holding that a law officer's
modest refusal to declare himself an expert disqualifies the
officer.
     New Prospect makes much of the fact that the judge in the
first trial sustained objections to Sorey's testimony.  First
Commercial's response is that Mr. Peel spent more effort in
qualifying Deputy Sorey in the second trial than in the first and
that there was more of a basis for determination.  Again, we are
cited to no authority suggesting that a judge in such a
circumstance is prohibited from changing his ruling.
     New Prospect also asserts that, even if Deputy Sorey was
entitled to give an opinion on the basis of his credentials, his
testimony still should have been stricken for lack of foundation. 
New Prospect points to the concessions made by Deputy Sorey during
cross-examination regarding what he did and did not do during his
processing of the accident scene.  Based on the information
elicited on cross-examination, New Prospect says there was no
foundation for his conclusions.  But New Prospect did not use the
information elicited on cross-examination to make a "lack of
foundation"-type motion to strike.
     There was a foundation-based objection raised during direct
examination.  Prior to that time, however, Deputy Sorey had
established that he had processed the scene; taken measurements;
determined the vehicles' positions in the road; detected the skid
marks; and searched for gouge marks, finding some then and others
later.  The foundation objection was properly denied at that time. 
If New Prospect then wished to strike the testimony in light of its
cross-examination, it should have said so then.  As it stands, much
of New Prospect's argument that Deputy Sorey's opinions lacked
foundation are being raised for the first time on appeal.  We do
not reverse on the basis of arguments not raised in the trial
court.  Slaton v. Slaton, 330 Ark. 287, 294, 956 S.W.2d 150(1997);
Jones v. Jones, 320 Ark. 449, 898 S.W.2d 23 (1995).

      2. Attorney misconduct resulting in excessive verdict
     New Prospect cites numerous examples of alleged attorney
misconduct that it argues led to the verdict of $3 million, which
it considers to be excessive.
     First, New Prospect complains about the opening statement of
Mr. Peel in which he referred to the fact that the members of Ms.
Jones's family had not reached "closure" with respect to the death
of their seventeen-year-old daughter and sister and that they had
to "deal" with her "death at the funeral and after."  
     New Prospect suggests that, in conjunction with later
references by witnesses to the fact that the case had been tried
once before, the opening-statement language suggested New Prospect
was somehow at fault for delay.  There were indeed some references
by witnesses to the earlier trial.  Most of them seemed to be
inadvertent.  From the record before us, we cannot say that the
references created any prejudice toward New Prospect.
     The second misconduct argument has to do with Mr. Peel's
questioning of Don Johnston, who testified as an expert on behalf
of New Prospect.  On several occasions after Mr. Johnston made a
statement on cross-examination, Mr. Peel asked if the jury was to
"just take [his] word" for the truth of the statement.  New
Prospect attempted to inquire of Mr. Johnston whether Mr. Peel had
asked that he serve as an expert for First Commercial in the case
and thus to prove that Mr. Peel was questioning the trustworthiness
of a witness he had previously attempted to procure for his client. 
The Trial Court refused to allow it on the ground that Mr. Peel
would have to become a witness to refute any such evidence and that
that would not be permitted.  See Model Rule of Professional
Conduct 3.7.  New Prospect has not demonstrated that ruling to have
been in error.
     We do not mention all of New Prospect's allegations of
misconduct, but there are two others we choose to discuss that were
raised in New Prospect's motion for a new trial.  First Commercial
contends that Mr. Peel, at one point during the trial, said
something like, "Those damn defense lawyers will argue with a wall
all day long."  The contention is that it was said in such a manner
as to be audible to the jurors.  Mr. Peel, in response, argued at
trial that he did not use the word "damn" and that his remark was
not overheard by the jury.
     Finally, and perhaps most serious, there is a contention that
Mr. Peel improperly appealed to the sympathy of the jurors in his
closing argument.  After Mr. Angel, arguing for New Prospect, had
reminded the jurors of the Trial Court's instruction not to allow
"sympathy" to enter their verdict, Mr. Peel, in rebuttal, agreed
with that position but said, ". . . in cases like this if you
measure a tremendous loss, you can't help but have some sympathy
for them.  You can't separate the two."  Defense counsel's
objection was sustained.
     In support of its argument that the jury's verdict was
affected by these instances of misconduct, New Prospect cites this
language: "If the transgression be flagrant -- if the offensive
remark has stricken deep, and is of such a character that neither
rebuke nor retraction can entirely destroy its sinister influence -
- a new trial should be promptly awarded. . . ."  German-American
Ins. Co. v. Harper, 70 Ark. 305, 307-08, 67 S.W. 755, 756 (1902).
It is our view of the case that the instances of alleged misconduct
on the part of Mr. Peel were not of the sort described in the
quoted standard.  Nor was it a situation such as we confronted in
Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986), where it
appeared that counsel ran roughshod over the Trial Court's rulings. 
The responses of the Trial Court to the objections and the new-
trial motion were within the Trial Court's discretion, and we have
not been given sufficient reasons to reverse on the basis of
counsel's misconduct.

                       3. Jury misconduct
     After the closing arguments and instructions had been given,
the jury retired to deliberate.  The bailiff was summoned to the
jury room and given a note apparently containing a question about
damages.  The Trial Court instructed the bailiff to take all the
jury instructions to the jury.  According to his affidavit, the
bailiff entered the jury room to deliver the instructions and at
that point observed two toy cars on the table in front of the jury
foreman.  The cars, which were sports-car models, were not part of
the evidence he had delivered earlier to the jury room.  The
bailiff informed Judge Patterson that he believed "the jury was
going to use the cars to reenact the accident."  The bailiff was
directed to bring the jury, along with the toy cars, into the
courtroom.  The bailiff returned to the jury room and saw that "all
of the jurors were gathered around the foreman" and that "they were
moving the cars around on the table."  
     The jury returned to the courtroom.  Judge Patterson explained
that they could not use the toy cars, which he retained and made a
part of the record.  In his statement denying the "drastic remedy"
of a mistrial, the Trial Court said that he knew it was wrong for
the jurors to have had the toy cars in their deliberations but that
he saw "no harm in it."
     The model cars were made one of the subjects of the motion for
a new trial, and they were displayed during oral argument before
this Court.  New Prospect argues that, because of the differences
in the configurations of the models from the actual vehicles --
e.g., that the models did not have wheels that could be turned to
emulate those of the car and truck involved in the wreck, that
neither was a truck -- the possibility of prejudice was great.
     In response to New Prospect's new-trial motion, First
Commercial filed twelve identical juror affidavits.  Each of the
affidavits provided, in relevant part, as follows:

     No extraneous, prejudicial information was improperly
     brought to the jury's attention during deliberations.  No
     outside influence was improperly brought to bear upon any
     juror.  The jury foreman, Kenneth Zelnick, did have two
     toy cars which were on the jury table.  The cars were
     brought out after the jury had voted on the issue of
     liability and just before the jury sent out first note
     asking about damages.  The cars were not considered on
     the issue of damages.  Nothing about the presence or use
     of these two, small toy cars provided any information not
     introduced at trial or brought any outside influence to
     bear upon any juror.  The jury foreman could as well have
     brought in two packs of cigarettes, two women's makeup
     compacts, two folded pieces of paper, two erasers, two
     shoes, or any two other items small enough to fit on the
     table.  The fact that the objects on the table were
     miniature cars did not provide or demonstrate to the jury
     any information that was not presented as evidence at
     trial.

     At a hearing on the new-trial motion, New Prospect moved to
strike the affidavits on the ground that, "[o]n their face, they
violate Rule 606(b) of the Arkansas Rules of Evidence."  New
Prospect called the jury foreman, Kenneth Zelnick, to the stand. 
He admitted that he produced the cars during jury deliberations. 
In questioning Mr. Zelnick, Mr. Angel, on behalf of New Prospect,
made it clear that he did not wish to elicit testimony concerning
either discussions in the jury room about the car or any impact the
presence of the toy cars had on the jurors.  He asked, however,
what Mr. Zelnick had done with the model cars in the jury room. 
Mr. Zelnick said he "laid them on the table with the idea that they
might help me or some of the other members of the jury to visualize
how the cars may have been positioned on the road before and after
the accident."  First Commercial did not cross-examine Mr. Zelnick.
     New Prospect then called juror Kathy Lloyd to the stand.  She
remembered that Mr. Zelnick produced the two cars during
deliberations and put them on the table at an angle.  Ms. Lloyd
said that there was a picture of the accident scene in front of
them and that Mr. Zelnick "set the toy cars like the cars were
angled in the picture.  That's about as long as they were in there. 
He sat the cars beside the picture.  He didn't sit them directly on
top of anything."  Ms. Lloyd said that she did not believe Mr.
Zelnick "moved the cars.  He lined them up.  I mean, he may have
moved them by lining them up, but he did not move them by rolling
them around."  First Commercial did not cross-examine Ms. Lloyd.  
     The Trial Court struck the juror affidavits with the exception
of the portions that read,
     
     The jury foreman, Kenneth Zelnick, did have two toy cars which
     were on the jury table.  The cars were brought out after the
     jury had voted on the issue of liability and just before the
     jury sent out its note about damages.  The cars were not
     considered on the issue of damages.

     After further discussion about Rule 606(b) and the "reasonable
possibility of prejudice" standard to be applied, the Trial Court
denied the new-trial motion and said that the "allegation
concerning misconduct of the jury and the evidence pertaining
thereto did not affect the substantial rights of the parties to
this action."
     In Diemer v. Dischler, 313 Ark. 154, 160, 852 S.W.2d 793, 796
(1993), a motion for a new trial was made on the basis of juror
affidavits to the effect that two jurors had gone to the scene of
the accident that was the subject of the trial and had experimented
with respect to whether a car could be brought to a stop within a
certain distance.  The affidavits indicated that the two jurors had
revealed their experiment and its result to the others.  Citing
Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 698 S.W.2d 795 (1985), and St. Louis Southwestern Ry. Co. v. White, 302 Ark.
193, 788 S.W.2d 483 (1990), we held the standard to be applied was
whether the jurors' misconduct created a  reasonable possibility of
prejudice, but we stated that on review we reverse the denial of a
motion for a new trial only if there has been a manifest abuse of
discretion.  We held there had been no such abuse of discretion.
     We reach the same conclusion in this case.  The use of the toy
cars, brought to the jury room for the purpose of a demonstration,
comes close to the bringing in of extraneous evidence, and we agree
it should not have occurred.  That, however, is not the same as
saying that a jury may not use "props" to reenact an event.  While
we conclude that it was improper for a juror to have brought the
toy cars into the jury room, it seems a close question because we
would clearly have found no impropriety had the jurors used two
items they might have found at hand, such as pencils or erasers, or
perhaps books, to demonstrate their views to each other on how the
accident occurred.  
     Even though the Trial Court indicated he found no "actual
prejudice," rather than reciting the "reasonable possibility of
prejudice" standard, we cannot say his overruling of the new trial
motion was a manifest abuse of discretion.  The evidence given by
the bailiff and that of the jurors conflicted.  A juror said the
toy cars were placed on the table in the jury room and were moved
to relative positions occupied by the damaged cars in one of the
photographs in evidence.  The Trial Court need not have believed
the cars were used in a full-blown reenactment of the crash or
that, if such a reenactment had occurred, any juror might possibly
have disregarded the fact that the toy cars did not resemble the
vehicles involved in the wreck.  
     New Prospect contends on the one hand that the toy cars were
so different from the ones involved in the wreck that it was
improper to use them.  On the other hand, it contends that the toy
cars were too similar to the ones involved, in comparison with
items such as books or pencils, and thus misleading as they did not
have some of the characteristics of the vehicles involved in the
crash, such as the height of the truck and wheels that turn.  To
hold that the toy cars were so much like the vehicles involved in
the wreck and yet were so different that there was a reasonable
possibility of prejudice, and thus a manifest abuse of discretion
in denying a new trial, would ignore the common sense possessed by
jurors and commonly exercised by them in viewing the evidence
presented.  
     In United States v. Abeyta, 27 F.3d 470 (10th Cir. 1994), a
juror used his personal pocket knife to reenact a crime during jury
deliberations.  In reaching the conclusion that there was no
constitutional violation, the Court noted that there was "simply no
constitutional command preventing a jury from using common sense
and ordinary and uninflammatory props to reenact a crime in the
privacy of the jury room."  Id. at 477.  Obviously we do not cite
the case for its constitutional-law aspect but as reinforcement of
our view that jurors would not be misled by the "props."
     In view of the clear evidence as to the nature of the vehicles
involved in this case and the obvious differences between them and
the toy cars, we cannot say that there was any reasonable
possibility of prejudice resulting from their presence in the jury
room or that there was an abuse of discretion in the denial of the
new-trial motion. 

                           4. Damages
                 a. Conscious pain and suffering
     New Prospect contends that the damages award should shock the
conscience of the Court and cause a new trial.  It first complains
about the $1,000,000 awarded for conscious pain and suffering by
the decedent.  The contention is that the evidence that Ms. Jones
was conscious and suffering after the accident was tenuous and that
the amount of the award must have been based on the misconduct of
counsel causing prejudice on the part of the jury.  
     Susan Humphrey testified that she arrived on the scene of the
accident prior to the police and the emergency medical personnel. 
Part of Ms. Humphrey's testimony, as abstracted, follows:

     I went over to the car.  Her head was bent over funny and she
     had blood coming out of her mouth.  There was blood on her
     arms.  I kept telling her to hold on, that the police and the
     paramedics had been called and would be there soon and God
     loved her.  At some point she was moving her arms.  I'm not
     sure why, but I told her to stop moving because she might hurt
     herself.  At some point the blood stopped coming out of her
     mouth.  She must have been swallowing it, because her
     breathing got really bad.  It was hoarse and raspy.  When I
     told her to stop moving, she did.  She quit moving her arms
     and was still for me.  Then when her breathing got really bad,
     I'd tell her to take a deep breath, and she would take a deep
     breath.  Then she would go back to the shallow, raspy
     breathing. I'd tell her to take another deep breath a few
     seconds later and she would breathe again. . . .  I had the
     definite impression that I was able to communicate with her.
     . . .  When I told her to quit moving, it was like, "OK, I've
     got your attention.  You know, I can hear," and she would quit
     moving.  It was like she was trying to let me know she could
     hear me or something. 
     
     In view of that testimony, we cannot say the evidence was
insufficient to show that there was conscious pain and suffering on
the part of Ms. Jones or that the damage award in that respect
shocks the conscience of the Court.

         b. Awards to siblings absent evidence of grief
     The award of damages was apportioned by the jury among the
family members of the decedent.  New Prospect argues that the
$50,000 awards made to Russell E. Jones and Rebecca McKinney should
be reversed because neither testified at the trial and no other
witness presented evidence of mental anguish on the part of either
of them.  We agree.
     First Commercial argues that we can affirm the two awards, as
Act 589 of 1993 (Ark. Code Ann.  16-62-102 (Supp. 1997)) permits
recovery by a family member of a decedent for "grief normally
associated with the loss of a loved one."  Our cases decided prior
to Act 589 have required something more than "normal" grief.  See
Peugh v. Oliger, 233 Ark. 281, 345 S.W.2d 610 (1961), overruled on
other grounds,  Fountain v. Chicago, R.I. & Pac. Ry., 243 Ark. 947,
422 S.W.2d 878 (1968).
     We are not concerned here with the extent to which the statute
may have changed the law as to the extent to which grief must be
demonstrated, but with whether it must be demonstrated to some
degree.  Absent some such evidence from or on behalf of Ms.
McKinney and Mr. Jones, we cannot uphold the judgments in their
favor.
     First Commercial has agreed in its brief that, if Act 589 is
not to be interpreted as permitting damages to Mr. Jones and Ms.
McKinney in this case, their awards may be remitted.  We modify the
judgment by removing those awards, thus reducing the total recovery
by $100,000.   
     Affirmed as modified.