concurring. Because appellant failed to challenge the submission of punitive damages to the jury in his motions for directed verdict below, I reluctantly vote to affirm the punitive damage awards in favor of Wyatt Williams and Missouri Walnut. I share Judge Hart’s chagrin that the jury awarded punitive damages to Williams and Missouri Walnut, as they were, at the very least, enablers of Prendergast. Had the punitive damages claim been properly challenged at trial, I would have voted to reverse it.
I believe that punitive damage awards serve a legitimate purpose in the law and recognize that a vote to reverse the awards to Williams and Missouri Walnut could be viewed as injecting the unpled issue of comparative fault into the case. Nevertheless, I think that if Williams and Missouri Walnut were somehow victimized, their plight resulted from having disregarded the responsibility to verify that Prendergast was authorized to give permission for cutting the walnut timber and selling the logs. After all, Missouri Walnut was not a bona fide purchaser, and Williams made no effort to perform a record search in order to determine if Prendergast owned the timber that he purported to permit to be logged. I do not understand why the jury awarded them punitive damages in light of evidence that they failed to determine whether Prendergast owned what he purported to sell.
However, I do not share Judge Hart’s view that somehow places economic injuries below bodily injuries for purposes of punitive damages awards. Punitive damages are not awarded to make an injured party whole; that is the function of compensatory damages. See Dunaway v. Troutt, 232 Ark. 615, 339 S.W.2d 613 (1960), overruled on other grounds by United Ins. Co. of Am. v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (1998). Rather, punitive damages are awarded to punish an actor for intentional or reckless conduct that society seeks to deter, and to (implicitly) encourage persons injured by that conduct to serve societal interests by prosecuting the actor. See, e.g., D’Arbonne Constr. Co., Inc. v. Foster, 354 Ark. 304, 308, 123 S.W.3d 894, 898 (2003) (noting that punitive damages are justified “only where the evidence indicates that the defendant acted wantonly in causing the injury or with such a conscious indifference to the consequences that malice may be inferred”); see also Jim Ray, Inc. v. Williams, 99 Ark. App. 315, 260 S.W.3d. 307 (2007). In that sense, I see no legitimate difference between awarding punitive damages for intentional or reckless conduct that results in economic loss and doing so in cases of personal injury. I do not find the ratio of damages in this case excessive; rather, I disagree with the premise that punitive damages were appropriate on claims by Missouri Walnut and Williams.
I only vote to affirm, quite reluctantly, because it appears that appellant’s directed verdict motions against Missouri Walnut and Williams did not address punitive damages. As we do not consider on appeal allegations of error that were not presented below, see, e.g., Hackelton v. Malloy, 364 Ark. 469, 221 S.W.3d 353 (2006), I join the majority’s decision to affirm the punitive damages awarded to Missouri Walnut and Williams. I do not like doing so, and would prefer to vote to reverse the awards. However, appellant’s failure to challenge the submission of punitive damages to the jury precludes appellate review of the awards.