Back v. Duncan, 5--4822
| Decision Date | 01 April 1969 |
| Docket Number | No. 5--4822,5--4822 |
| Citation | 246 Ark. 494,438 S.W.2d 690 |
| Parties | Alice BACK, Appellant v. Marie DUNCAN, Appellee. |
| Court | Arkansas Supreme Court |
Wright, Lindsey & Jennings, and Philip S. Anderson, Jr., Little Rock, for appellant.
Willis V. Lewis, Little Rock, for appellee.
This is an action for personal injuries sustained by the appellee when her car was struck from the rear by a car being driven by the appellant. There was no serious question about liability, for both parties testified that Mrs. Duncan's car was struck while it was standing still in a line of traffic in downtown Little Rock. The jury fixed the damages at $13,040.
There is really only one point for reversal, though the appellant subdivides it for the purpose of argument. During the trial the court admitted in evidence a letter written by Dr. Wade. A few minutes later the judge decided that he had made an error and instructed the jury to completely disregard the letter. It is now insisted that the error was so prejudicial that the defendant's request for a mistrial should have been granted.
Mrs. Duncan testified that she suffered severe injuries to her neck and shoulders. About two months after the accident she obtained a part-time job in the offices of Drs. Flack, Hedges & Wade. Some three months later Dr. Flack discharged her. Mrs. Duncan testified that she was not physically able to do the work and that the doctors were justified in letting her go.
Before the plaintiff rested her case the court allowed the defendant to call Dr. Flack out of turn. He contradicted Mrs. Duncan's testimony, saying that she was discharged not for physical inability to do the work but for other reasons that are now unimportant. On cross-examination the plaintiff's attorney unsuccessfully attempted to have Dr. Flack identify the letter from Dr. Wade.
Later in the trial Mrs. Duncan's attorney recalled her to the stand and succeeded in introducing the letter from Dr. Wade, which reads as follows:
8/16/67
To whom it may concern:
Marie Duncan has had persistent neck and back aches. She is also in the middle of a law suit and has had some trouble with a family problem.
It was our decision that Marie should not be working and trying to do her housework at the same time until she has gotten over some of her physical complaints.
We are very sorry to loose (sic) her and in the future hope to be able to rehire her. She is very good with patients and also good lab work.
W. I. Wade, M.D.
As we have said, the judge soon withdrew the letter from the case and instructed the jury to disregard it.
Counsel for the appellant cite our rule that an error is presumed to be prejudicial unless the contrary affirmatively appears. Safeway Stores v. Gross, 240 Ark. 206, 398 S.W.2d 669 (1966). In the nature of things, however, that rule does not apply when the trial judge has undertaken to correct an apparent error by instructing the jury to disregard it. In that situation we...
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...be served by a continuation of the trial or unless prejudice may not be avoided or removed by any other step or means. Back v. Duncan, 246 Ark. 494, 438 S.W.2d 690; First National Bank of Springdale v. Hobbs, 248 Ark. 76, 450 S.W.2d 298; Donahue v. Cowdrey, 246 Ark. 1028, 440 S.W.2d 773; Jo......
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