Bearden v. J.R. Grobmeyer Lumber Co., 97-571

• Decision Date: 12 February 1998
• Docket Number: No. 97-571,97-571
• Citation: 961 S.W.2d 760,331 Ark. 378
• Parties: Leavon BEARDEN, Appellant, v. J.R. GROBMEYER LUMBER CO. and Delsondro Sims, Appellees.
• Court: Arkansas Supreme Court

Page 760

961 S.W.2d 760

331 Ark. 378

Leavon BEARDEN, Appellant, v. J.R. GROBMEYER LUMBER CO. and Delsondro Sims, Appellees.

No. 97-571.

Supreme Court of Arkansas.

Feb. 12, 1998.

J.R. Nash, Little Rock, for Appellant.

Jim Tilley, Julia L. Busfield, Little Rock, for Appellees.

NEWBERN, Justice.

The main issue in this appeal is whether the Trial Court erred in refusing to allow the appellant, Leavon Bearden, to introduce inadmissible evidence to rebut other inadmissible evidence that was before the jury. We hold that the Trial Court did not err in that respect. We also conclude that it was not error to overrule Mr. Bearden's motion for a new trial. We affirm the judgment in favor of appellees J.R. Grobmeyer Lumber Co. ("Grobmeyer") and Delsondro Sims.

On a rainy day in September 1994, Leavon Bearden drove his pickup truck west on four-lane Roosevelt Road in Little Rock. Delsondro Sims, driving a large, unloaded truck owned by his employer, J.R. Grobmeyer Lumber Co., was headed east on Roosevelt. As the truck driven by Mr. Sims approached a curve to the right, Mr. Sims braked and "geared down" due to the presence of a slower tractor-trailer ahead of him. He moved to the inside lane to pass the tractor-trailor. Mr. Bearden was on the inside lane going west.

As he was braking or gearing down, Mr. Sims felt a "twitch" in the truck he was driving, meaning that it slid somewhat to the left. He felt a collision and then looked in his rear-view mirror and could see Mr. Bearden's damaged truck crossing into the east-bound lane. Mr. Sims stopped, put out emergency signals, and called his employer.

Mr. Bearden's truck had struck, or had been struck by, the rear tire and bed of the truck being driven by Mr. Sims. Mr. Bearden was seriously injured, and his truck was damaged beyond repair. He sued Mr. Sims and Grobmeyer, alleging that Mr. Sims had been negligent in the operation of the Grobmeyer truck, which was undamaged by the collision.

At the trial, counsel for Mr. Bearden called Mr. Sims as his first witness. Mr. Sims was asked if the Grobmeyer truck had crossed the center line into Mr. Bearden's oncoming-traffic lane. He denied that it had. He was questioned about the somewhat equivocal testimony he had given in a deposition, but he continued to deny consistently that his vehicle had crossed the center line and insisted that he had never said it had done so. Then, during continued questioning of Mr. Sims by Mr. Bearden's counsel, the following occurred:

Q: Well, where on your truck was the contact with Mr. Bearden's vehicle?

A: We never established where the contact was. No one never established where it was at or anything. I mean, the police never, you know, gave a ticket or--they sent me on over to Georgia-Pacific.

Mr. Bearden's counsel neither objected nor asked that the statement about the ticket be stricken. Shortly thereafter he passed the witness to counsel for Mr. Sims and Grobmeyer. During the ensuing cross-examination the following occurred:

Q: Mr Sims, you stayed and the police officer investigated this accident?

A: I guess they did.

Q: Okay.

A: I never got, you know, anything from it.

Q: You said, in answer to Mr. Nash's question, no citations were given?

A: No, no citations.

Q: He's asked you--

At that point Mr. Bearden's counsel asked to approach the bench. He objected to the testimony concerning the officer's failure to issue a citation. Opposing counsel responded that the statement had been made initially in response to direct examination by Mr. Bearden's counsel. Mr. Bearden's counsel said he had not heard the earlier statement and that, in any event, it was not responsive to any question he had asked. The Trial Court offered to admonish or instruct the jury to disregard the testimony, and Mr. Bearden's counsel said he would have to think about it.

Mr. Bearden's counsel did not seek an admonition or instruction on the point but ultimately asked that he be allowed to inquire of the officer who investigated the accident as to what caused the accident and whose fault he thought the accident was and to bring out a statement, apparently from the police report, that Mr. Sims was speeding when the accident occurred. The request was refused.

1. Curative admissibility

Evidence of a conviction or a bond forfeiture resulting from a violation of traffic laws is inadmissible in any civil action. Ark.Code Ann. § 27-50-804 (Repl.1994); Breitenberg v. Parker, 237 Ark. 261, 372 S.W.2d 828 (1963). In Girard v. Kuklinski, 235 Ark. 337, 360 S.W.2d 115 (1962), it was explained that if the record of a conviction is inadmissible, there is even more reason to hold that evidence of a traffic citation, which is a "mere charge," is inadmissible. We have not dealt with the question of the admissibility of evidence that no ticket was issued, and we need not do so in this case, as both parties have proceeded on the assumption that Mr. Sims's remark about not having received a ticket was inadmissible.

Mr. Bearden's argument is that, as inadmissible evidence favoring the defense was before the jury, he should have been allowed to introduce rebuttal testimony from the investigating officer, which he concedes would have been otherwise inadmissible.

In German-American Ins. Co. v. Brown, 75 Ark. 251, 87 S.W. 135 (1905), we held that the introduction of incompetent evidence, over objection, allowed the opposing party to introduce equally incompetent rebuttal evidence. We wrote, "Where one party introduces incompetent testimony, he cannot complain of the action of the court in allowing the other party to introduce the same character of evidence directed to the same point at issue. He waives all objection to error which he thus invites." 75 Ark. at 257, 87 S.W. at 137. Cf. Henson v. State, 239 Ark. 727, 730, 393 S.W.2d 856, 859 (1965) ("[T]wo wrongs do not make a right"). Recently, in Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992), we held that a plaintiff should have been permitted to present otherwise inadmissible evidence of insurance coverage in response to a defendant's incompetent and inadmissible statement implying that he was "alone" in his defense and could not replace that which would be taken from him.

In the Peters case we cited, with approval, the following language from E.W. Cleary, McCormick on Evidence, § 57, at 147-148 (3d ed.1984):

If the evidence, though inadmissible, is relevant to the issues and hence probably damaging to the adversary's case, or though irrelevant is prejudice-arousing to a material degree, and if the adversary has seasonably objected or moved to strike, then the adversary should be entitled to give answering evidence as of right. By objecting, he has done his best to save the court from mistake, but his remedy by assigning error to the ruling is not an adequate one. He needs a fair opportunity to win his case at the trial by refuting the damaging evidence.... [Footnotes omitted.]

Peters v. Pierce, 308 Ark. at 64, 823 S.W.2d at 822 (emphasis supplied.)

Here, not only was there neither an objection nor a motion to strike at the time of the objectionable testimony, but the statement in question came during direct examination in Mr. Bearden's case-in-chief. If, indeed, the statement concerning the failure to issue a traffic ticket was inadmissible, as the parties assume, the question of curative...