Jack Holt, Jr., Chief Justice.
The issues in this case revolve around the adequacy of damages awarded by the trial court on behalf of Jerry Yancey, who was injured in an automobile accident caused by the appellee, The McNeill Trucking Company, Inc. (McNeill).
On September 29,1989, the van driven by Mr. Yancey was hit from behind by a semi-truck driven by a McNeill employee. At the scene of the accident, a McNeill representative assumed full corporate responsibility for the accident to the investigating police officers. The appellant, National Bank of Commerce (Bank), filed suit against McNeill for damages and then requested a non-suit without prejudice as to the liability insurance carrier. Ultimately, the trial court declared a mistrial as a result of Mr. Yancey’s counsel’s actions before the jury; the parties stipulated, however, to a bench trial in order to continue the trial.
On March 7,1991, the trial court filed its findings of fact and conclusions of law; it found that liability for the accident was admitted by McNeill and awarded the Bank $5,558.61 for medical expenses, $5,335.20 for lost wages, and $2,000.00 for pain and suffering. No award was made for loss of consortium or for punitive damages, and all other claims were dismissed.
The Bank filed a motion for review or for a new trial, which was denied by the trial court. The Bank now asserts three points of error on appeal: 1) the trial court erred in disallowing any damages for the heart, 2) the trial court erred in disregarding undisputed testimony, as well as the McNeill’s own admissions, and utilizing surveillance video tapes to attempt to justify arbitrary and unsupported rulings as to damages, and 3) the trial court erred in disallowing punitive damages.
The Bank’s first argument relating to the disallowance of any damages for the heart is persuasive, and we reverse and remand the judgment of the trial court.
Under A.R.C.P. 59(a), the inadequacy of the recovery is a ground for a new trial even in the absence of other error. In Smith v. Pettit, 300 Ark. 245, 778 S.W.2d 616 (1989) (citing Warner v. Liebhaver, 281 Ark. 118, 661 S.W.2d 399 (1983)), we reiterated that when the primary issue is the alleged inadequacy of the award, rather than a question of liability, we will sustain the trial court’s denial of a new trial unless there is a clear and manifest abuse of discretion. An important consideration in this review is whether a fair-minded jury might reasonably have fixed the award at the challenged amount. Also, in reviewing a finding of fact by a trial court, we consider the evidence and all reasonable inferences therefrom in a light most favorable to the appellee. Jernigan v. Cash, 298 Ark. 347, 767 S.W.2d 517 (1989).
In this case, the trial court held in its findings of fact and conclusions of law that “. . . on September 29, 1989, Jerry Yancey sustained a back strain, proximately caused by the accident, for which he was caused to incur medical bills, lose wages and suffer pain for a period of no more than six months, and not later than March 29,1990. . . . Expenses beyond March 29, 1990, are disallowed, as are those relating to the heart.” The Bank initially asserts that the trial court erred in disallowing any damages for the heart.
The accident occurred on September 29,1989, at which time Mr. Yancey was treated at the University of Arkansas Medical Center (UAMS) emergency room for musculoskeletal pain; Mr. Yancey then went to Dr. Joe Buford, a family practitioner, the next day complaining of soreness in his lower abdomen and back. Yancey returned to Dr. Buford on October 2 and 4 with the same complaint; at no time did Mr. Yancey complain of chest pain or heart trouble. Apparently, Mr. Yancey went to the UAMS on October 10, where an EKG was performed on him; the results indicated that the pain was muscular/pectoral in nature and not related to the heart muscle.
On October 11, Mr. Yancey went to see Dr. Austin Grimes, an orthopedic surgeon, at the request of his attorney. At that time, Dr. Grimes noted Mr. Yancey’s complaint as being lumbar related and began treatment for his back. When Mr. Yancey returned to Dr. Grimes’s office on November 10, he told Dr. Grimes that he had chest pain on both sides. As Mr. Yancey was not responding to the therapy he had prescribed, Dr. Grimes wanted to treat Mr. Yancey with a transcutaneous electrical nerve stimulator (T.E.N.S.) unit, but did not want to prescribe the unit until Mr. Yancey had been checked out by a cardiologist because the unit could aggravate a heart condition.
Dr. Grimes referred Mr. Yancey to the UAMS Center in Little Rock, where he was treated by a trauma specialist, Dr. John Cone. Based on Mr. Yancey’s statements and history, Dr. Cone performed a physical exam on him and determined that “there is a greater than fifty percent chance that he has costochondritis [an inflammatory process that involves the cartilages that adjoin the ribs and the breast bone].” Dr. Cone then referred him to the cardiology department for further evaluation. Mr. Yancey was hospitalized from January 2 to January 4, 1990, by Dr. Joe Bissett, a cardiologist, for an echocardiogram and a coronary angiogram, the test results of which were normal.
The Bank essentially argues 1) that the trial court was adversely affected after reviewing McNeill’s surveillance tapes of Mr. Yancey that depicted him performing a variety of physical activity inconsistent with his claim of permanent and total disability, 2) that the heart-related expenses were within the trial court’s six month cut-off period, and 3) that Mr. Yancey was referred for treatment and testing for his heart by his treating physicians.
McNeill presented surveillance video tapes into evidence that showed Mr. Yancey engaging in physical activities that he claimed he was incapable of performing, i.e., overhead arm extension, lifting heavy objects, bending, stooping, and twisting. McNeill also presented evidence that Mr. Yancey had a prior condition of heart pain; in fact, the notation in his medical records reflected “a long history of dyspeptic symptoms including heartburn, epigastric pain. All relieved by antacid and milk.” Dr. Winston Wilson, a clinical psychologist, testified that Mr. Yancey was a hypochondriac prone to exaggeration of his symptoms, upon the recitation of which his treating physicians relied. McNeill also points out that Mr. Yancey did not see a specialist for his chest pains until forty-five days after the accident.
The evidence in the record shows that Mr. Yancey complained of chest pains at his October 11 orthopedic examination with Dr. Grimes. The record is very clear that Dr. Grimes’s decision to place him on theT.E.N.S. unit, which might help cure Mr. Yancey’s back, not his heart, was the motivation for the referral to a cardiologist. Dr. Grimes is an orthopedic surgeon who knew that the T.E.N.S. unit could aggravate a preexisting heart condition. Mr. Yancey’s medical records showed a long history of dyspeptic symptoms and, whether real or hypochondriacal, the documented possibility of a heart condition had to be explored in order to treat the conditions caused by the accident.
There is no challenge to the propriety of Dr.
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Jack Holt, Jr., Chief Justice.
The issues in this case revolve around the adequacy of damages awarded by the trial court on behalf of Jerry Yancey, who was injured in an automobile accident caused by the appellee, The McNeill Trucking Company, Inc. (McNeill).
On September 29,1989, the van driven by Mr. Yancey was hit from behind by a semi-truck driven by a McNeill employee. At the scene of the accident, a McNeill representative assumed full corporate responsibility for the accident to the investigating police officers. The appellant, National Bank of Commerce (Bank), filed suit against McNeill for damages and then requested a non-suit without prejudice as to the liability insurance carrier. Ultimately, the trial court declared a mistrial as a result of Mr. Yancey’s counsel’s actions before the jury; the parties stipulated, however, to a bench trial in order to continue the trial.
On March 7,1991, the trial court filed its findings of fact and conclusions of law; it found that liability for the accident was admitted by McNeill and awarded the Bank $5,558.61 for medical expenses, $5,335.20 for lost wages, and $2,000.00 for pain and suffering. No award was made for loss of consortium or for punitive damages, and all other claims were dismissed.
The Bank filed a motion for review or for a new trial, which was denied by the trial court. The Bank now asserts three points of error on appeal: 1) the trial court erred in disallowing any damages for the heart, 2) the trial court erred in disregarding undisputed testimony, as well as the McNeill’s own admissions, and utilizing surveillance video tapes to attempt to justify arbitrary and unsupported rulings as to damages, and 3) the trial court erred in disallowing punitive damages.
The Bank’s first argument relating to the disallowance of any damages for the heart is persuasive, and we reverse and remand the judgment of the trial court.
Under A.R.C.P. 59(a), the inadequacy of the recovery is a ground for a new trial even in the absence of other error. In Smith v. Pettit, 300 Ark. 245, 778 S.W.2d 616 (1989) (citing Warner v. Liebhaver, 281 Ark. 118, 661 S.W.2d 399 (1983)), we reiterated that when the primary issue is the alleged inadequacy of the award, rather than a question of liability, we will sustain the trial court’s denial of a new trial unless there is a clear and manifest abuse of discretion. An important consideration in this review is whether a fair-minded jury might reasonably have fixed the award at the challenged amount. Also, in reviewing a finding of fact by a trial court, we consider the evidence and all reasonable inferences therefrom in a light most favorable to the appellee. Jernigan v. Cash, 298 Ark. 347, 767 S.W.2d 517 (1989).
In this case, the trial court held in its findings of fact and conclusions of law that “. . . on September 29, 1989, Jerry Yancey sustained a back strain, proximately caused by the accident, for which he was caused to incur medical bills, lose wages and suffer pain for a period of no more than six months, and not later than March 29,1990. . . . Expenses beyond March 29, 1990, are disallowed, as are those relating to the heart.” The Bank initially asserts that the trial court erred in disallowing any damages for the heart.
The accident occurred on September 29,1989, at which time Mr. Yancey was treated at the University of Arkansas Medical Center (UAMS) emergency room for musculoskeletal pain; Mr. Yancey then went to Dr. Joe Buford, a family practitioner, the next day complaining of soreness in his lower abdomen and back. Yancey returned to Dr. Buford on October 2 and 4 with the same complaint; at no time did Mr. Yancey complain of chest pain or heart trouble. Apparently, Mr. Yancey went to the UAMS on October 10, where an EKG was performed on him; the results indicated that the pain was muscular/pectoral in nature and not related to the heart muscle.
On October 11, Mr. Yancey went to see Dr. Austin Grimes, an orthopedic surgeon, at the request of his attorney. At that time, Dr. Grimes noted Mr. Yancey’s complaint as being lumbar related and began treatment for his back. When Mr. Yancey returned to Dr. Grimes’s office on November 10, he told Dr. Grimes that he had chest pain on both sides. As Mr. Yancey was not responding to the therapy he had prescribed, Dr. Grimes wanted to treat Mr. Yancey with a transcutaneous electrical nerve stimulator (T.E.N.S.) unit, but did not want to prescribe the unit until Mr. Yancey had been checked out by a cardiologist because the unit could aggravate a heart condition.
Dr. Grimes referred Mr. Yancey to the UAMS Center in Little Rock, where he was treated by a trauma specialist, Dr. John Cone. Based on Mr. Yancey’s statements and history, Dr. Cone performed a physical exam on him and determined that “there is a greater than fifty percent chance that he has costochondritis [an inflammatory process that involves the cartilages that adjoin the ribs and the breast bone].” Dr. Cone then referred him to the cardiology department for further evaluation. Mr. Yancey was hospitalized from January 2 to January 4, 1990, by Dr. Joe Bissett, a cardiologist, for an echocardiogram and a coronary angiogram, the test results of which were normal.
The Bank essentially argues 1) that the trial court was adversely affected after reviewing McNeill’s surveillance tapes of Mr. Yancey that depicted him performing a variety of physical activity inconsistent with his claim of permanent and total disability, 2) that the heart-related expenses were within the trial court’s six month cut-off period, and 3) that Mr. Yancey was referred for treatment and testing for his heart by his treating physicians.
McNeill presented surveillance video tapes into evidence that showed Mr. Yancey engaging in physical activities that he claimed he was incapable of performing, i.e., overhead arm extension, lifting heavy objects, bending, stooping, and twisting. McNeill also presented evidence that Mr. Yancey had a prior condition of heart pain; in fact, the notation in his medical records reflected “a long history of dyspeptic symptoms including heartburn, epigastric pain. All relieved by antacid and milk.” Dr. Winston Wilson, a clinical psychologist, testified that Mr. Yancey was a hypochondriac prone to exaggeration of his symptoms, upon the recitation of which his treating physicians relied. McNeill also points out that Mr. Yancey did not see a specialist for his chest pains until forty-five days after the accident.
The evidence in the record shows that Mr. Yancey complained of chest pains at his October 11 orthopedic examination with Dr. Grimes. The record is very clear that Dr. Grimes’s decision to place him on theT.E.N.S. unit, which might help cure Mr. Yancey’s back, not his heart, was the motivation for the referral to a cardiologist. Dr. Grimes is an orthopedic surgeon who knew that the T.E.N.S. unit could aggravate a preexisting heart condition. Mr. Yancey’s medical records showed a long history of dyspeptic symptoms and, whether real or hypochondriacal, the documented possibility of a heart condition had to be explored in order to treat the conditions caused by the accident.
There is no challenge to the propriety of Dr. Grimes prescribing the use of the T.E.N.S. unit as treatment for the back pain that was attributed to this accident. In fact, Dr. Grimes’s treatment, including that administered during the six-month recovery period as limited by the trial court, was used as a basis for the award of all other damages. While it is true that Dr. Cone, the trauma specialist, first listened to Mr. Yancey and later reviewed his history to conclude that there was a possibility of costochondritis, the initial referral was triggered by Dr. Grimes’s determination that the T.E.N.S. unit was warranted. Even if hypochondriasis led to an exaggeration of symptoms in the history provided to Dr. Cone by Mr. Yancey, it is clear that Mr. Yancey did not seek out treatment related to a heart condition but rather was referred by the orthopedist to ensure that the preferred treatment for the injuries sustained in the accident would not aggravate another condition. The subsequent referral to the cardiologist must also be attributed to Dr. Grimes and his desire to place Mr. Yancey on the T.E.N.S. unit.
Consequently, after viewing the facts in the light most favorable to McNeill, we find that the record supports only the conclusion that the charges incurred as a result of Dr. Grimes’s decision to utilize the T.E.N.S. unit resulted from the accident. Accordingly, the trial court erred in disallowing as damages the medical expenses attributable to Mr. Yancey’s heart examinations. Compare Warner v. Liebhaber, supra. (The parties were involved in an automobile accident; the injured party incurred medical expenses of $ 12,285.00, and sought recovery of $ 100,000 for personal injuries and $1,500 for property damages. The defendants admitted liability, but the jury only awarded the injured party $2,500. The plaintiff appealed from the trial court’s denial of her motion for a new trial on the single issue of the inadequacy of the verdict. We affirmed the adequacy of the award on two bases: 1) the jury could have found that the plaintiff was not seriously injured in the collision, and 2) the jury could have found that the plaintiffs principal items of damage — medical expenses — were not fairly attributable to whatever back pain she may have suffered.)
The Bank also claims that the trial court erred in disregarding undisputed testimony, as well as McNeill’s own admissions, and utilizing the surveillance video tapes to attempt to justify arbitrary and unsupported rulings as to damages. Again, this argument is governed by the same standard of review as the Bank’s first point of error. The Bank presented testimony of Mr. Yancey’s treating physicians and physical therapist as to the extent of his injuries. McNeill presented three surveillance videos that belied this testimony and showed Mr. Yancey performing physical activities supposedly beyond his capabilities, i.e., heavy bending, stooping, lifting, and twisting. Consequently, the Bank’s testimony was hardly undisputed.
The Bank’s reference in its brief to “McNeill’s own admissions” in this point of error misinterprets the content and context of the proceedings in the record with regard to this claim. The Bank attempts to characterize the dialogue among counsel and the court as one relating to the issue of malingering, when in fact the point related to an objection as to the cumulative use of hypothetical questions. This argument is of no consequence since McNeill’s focus was that Mr. Yancey suffered from hypochondriasis and exaggerated his complaints.
Additionally, Dr. Grimes stated that one could expect to recover from an injury such as Mr. Yancey’s in four to six months. Therefore, the six month cut-off period is justified by the Bank’s own witness, and a fair-minded jury could easily have disbelieved all, or portions, of the testimony presented by the Bank and found that all of Mr. Yancey’s medical costs were not attributable to the accident with McNeill’s vehicle. In sum, the trial court’s assessment of damages other than medical bills relating to the examination of Mr. Yancey’s heart was not a manifest abuse of discretion. See Gilbert v. Diversified Graphics, 286 Ark. 261, 691 S.W.2d 169 (1985).
For purposes of remand, we will also discuss the Bank’s assertion that the trial court erred in disallowing punitive damages. In Missouri Pac. R.R. v. Mackey, 297 Ark. 137, 760 S.W.2d 59 (1988), we stated that punitive damages are only justified when the defendant acts wantonly or with such conscious indifference to the consequences of his acts that malice may be inferred; negligence, however gross, will not justify an award of punitive damages.
The Bank unsuccessfully attempted to introduce evidence that McNeill’s maintenance employees had used drugs at some point during their employment, and there was no direct evidence that they had used drugs on the job.
The Bank’s tandem assertion that McNeill knew that it was dangerous to allow a bobtail semi-truck to operate on the highway was not preserved for appeal, and we decline to address it. After examination of the record, we find that this argument was not pled and, although alluded to by the Bank in its brief, the trial court was not apprised of this argument as a basis for the Bank’s claim of punitive damages. Pearrow v. Feagin, 300 Ark. 274, 778, S.W.2d 941 (1989).
In sum, there was simply no evidence that McNeill knew of the alleged drug use, or recklessly disregarded the consequences from which malice could be inferred to support a claim of punitive damages.
The judgment of the trial court is reversed and remanded for retrial on the issue of compensatory damages.
Dudley and Glaze, JJ., concur. Hays and Brown, JJ., dissent.