dissenting. The majority’s opinion has examined the evidence supporting punitive damages more from the appellant’s standpoint than the appellee’s. When viewed most favorably to the appellee, and with its fullest probative force, I believe there was substantial evidence to support the trial court’s refusal to grant a motion for a directed verdict. Dalrymple v. Fields, 276 Ark. 185, 633 S.W.2d 362 (1982); Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961); Ray Dodge Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972).
We no longer require actual malice as an essential constituent of punitive damages. It is enough if the defendant acted recklessly or wantonly, or with a conscious indifference to the safety and welfare of others using the highways. In Dalrymple v. Fields, supra, we said:
Before punitive damages may be allowed it must be shown that in the absence of proof of malice or willfulness there was a wanton and conscious indifference for the rights and safety of others on the part of the tortfeasor.
While excessive speed may, in many circumstances, be no more than ordinary negligence, actions are not to be viewed in a vacuum, and what may be no more than negligence in one setting can readily be seen as wantonness or conscious indifference in another context. Thus driving 85 m.p.h. on certain stretches of highway may be relatively safe, or it may be negligence, depending on the traffic, weather, etc. But driving only 35 or 40 m.p.h. past a school at dismissal hour or close to a playground crowded with children with an evident indifference to the known tendencies of children could meet even restrictive concepts of wantonness. In Airco, Inc. v. Simmons First National Bank, 276 Ark. 486, 638 S.W.2d 660 (1982), we upheld a monumental award of punitive damages, not on proof that Aireo had any intent to injure, but because the injury was the natural and probable consequence of Airco’s conduct. It seems a fair analogy to me to say that when one knowingly drives an overloaded 18-wheeler, with defective brakes, on the highway at speeds of 70 m.p.h. by some accounts, oblivious of warning signals and without slowing down and with no apparent effort at stopping, approaching congestion on the highway, a collision is the natural and probable consequence of such conduct. At least, reasonable minds could differ on the issue of conscious indifference and that is enough.
In sum, the proof was that Robert Foley was several hours late leaving Batesville for Little Rock. His truck, an 18-wheeler, was loaded beyond the lawful limit. His truck, by whatever standard one chooses, was equipped with brakes that were not functioning properly. For some miles prior to the point of impact Mr. Foley drove so fast and so close to preceding vehicles that two of those motorists were alarmed by it and described his conduct at trial as speeding and “tailgating.” Rounding a curve bearing into a straight, level stretch of highway some 900 feet from the appellee’s house-moving rig, Mr. Foley proceeded at a high rate of speed (70 m.p.h. by one account) and with no discernible attempt to reduce his speed (some witnesses testified that his speed actually increased as he neared the impact point), past one vehicle with a warning light flashing, to strike the Staggs-McGee vehicle, knocking it a considerable distance in the air, and resulting in the deaths of the two occupants, before striking another vehicle and the house. Photographs of the scene attest to extraordinary force of the impact.
There was testimony that one of the brake shoes on the truck was not even touching the brake drum, rendering it useless as a braking device. There was testimony that none of the four rear brakes met Department of Transportation specifications. There was other material evidence from which an inference could be drawn that the brakes on the truck were seriously deficient and that fact was known by Foley and was in derogation of the policies of National By-Products, Inc. Lastly, there was proof from which the jury could quite properly have inferred that National ByProducts, Inc., in addition to neglecting the safe operation of the truck involved, engaged in practices which promoted the overloading of its trucks beyond the legal limit, by routinely paying weight fines rather than demanding compliance by its drivers.
The proof, I believe, was such that a jury had a right under the law to exemplify the conduct of both defendants by assessing punitive damages. The judgment should be affirmed.
Purtle, J., joins.