Hammond v. Peden, 5-668

• Court: Arkansas Supreme Court
• Writing for the Court: WARD
• Citation: Hammond v. Peden, 224 Ark. 1053, 278 S.W.2d 96 (Ark. 1955)
• Decision Date: 25 April 1955
• Docket Number: No. 5-668,5-668
• Parties: James HAMMOND, Appellant, v. Leon PEDEN, Appellee.

Page 96

278 S.W.2d 96

224 Ark. 1053

James HAMMOND, Appellant, v. Leon PEDEN, Appellee.

No. 5-668.

Supreme Court of Arkansas.

April 25, 1955.

W. J. Morrow, Clarksville, for appellant.

Wiley W. Bean, Clarksville, for appellee.

WARD, Justice.

Appellee, Leon Peden, filed a complaint against appellant, James Hammond, for alienating the love and affection of his wife, Nellie Peden, and his three children. The jury returned to verdict in favor of appellee and assessed his damages at $25,000, from which judgment appellant has appealed.

The complaint alleged that Peden and his wife were married in 1941 and lived together as husband and wife until October 1, 1952 when they were divorced by reason of Hammond's unwarranted attention to his wife; that this divorce was annulled and he and his wife, becoming reconciled, lived happily together as husband and wife until January 28, 1954, and; that Hammond, well knowing that Peden and his wife were living happily together, wilfully, wickedly and maliciously sought to obtain the affection of plaintiff's wife and enticed her to leave her home at frequent intervals in company with Hammond and that Hammond, by manifestations of affection, induced Nellie Peden to leave plaintiff on the date last above mentioned. It was further alleged that Hammond, by his allegedly wilful acts, deprived the plaintiff of the companionship, love and affection of his three children. Peden asked $25,000 for the loss of the love and affection of his wife and $75,000 for the loss of the companionship, love and affection of his children.

On appeal appellant sets out several grounds upon which he relies for a reversal of the judgment rendered against him. We will discuss them separately below.

1. Competency of jurors. Two prospective jurors, in answer to interrogatories by appellant's attorney, stated, in effect, that they had heard about the case and had formed an opinion in regard thereto and it would take evidence to remove that opinion. On examination by the court they stated, in effect, that they could and would lay aside such opinions and try the case according to the law and the evidence. The decision which we have reached on this point makes it unnecessary to set forth the questions and answers in detail.

The record fails to show that appellant exercised his right to peremptorily challenge these or any other jurors and that he failed to exhaust his right to challenge jurors as granted him by statute. We have many times held that if a litigant fails to exhaust his peremptory challenges he waives any error committee by the court in failing to excuse a challenged juror. See Sullivan v. State, 161 Ark. 19, 257 S.W. 58; Shoop v. State, 209 Ark. 498, 190 S.W.2d 988, and Jones v. State, 213 Ark. 863, 213 S.W.2d 974. In the Shoop case, supra, 209 Ark. at page 501, 190 S.W.2d at page 989, it was stated:

'If it be conceded that the court erroneously refused to excuse the two prospective jurors for cause, still there is no showing in the record that appellant exhausted his peremptory challenges. Where a defendant fails to exhaust his peremptory challenges, he waived any error the court may have committee in not excusing a juror for cause.' (Citing cases.)

We are not informed of any instance where out court has applied this rule in a civil suit, but we can see no reason why it should not apply in civil as well as criminal cases. In 31 Am.Jur., page 645, this same matter is discussed generally under paragraph 117 where it is stated that the rule applies in both civil and criminal cases. The rule was applied in civil cases in De Bow v. Cleveland, C. C. R. Co., 245 Ill.App. 158 and Mount v. Welsh, 118 Or. 568, 247 P. 815.

2. Error is alleged because the trial court refused to permit appellant to introduce the complaint, waiver and depositions in the first divorce suit, but we think no error was committed. In the trial of the case it developed that appellee's wife secured a divorce on October 1, 1952 but that the decree was set aside ten days later, after which time appellee and his wife again lived together. The court permitted appellant to show that such divorce was granted at the instance of the wife, and the decree was introduced in evidence. The complaint, waiver and depositions filed in that divorce suit were not competent evidence in the trial of this case. To have introduced them in evidence would have raised collateral issues which in turn would only have called for the introduction of further testimony. Moreover the divorce suit was between parties different from the parties in this litigation and the cause of action was not the same in both instances, so the proffered evidence would not come under the provisions of Ark.Stats. § 28-713.

3. Appellant states that 'The way said jury arrived at the amount of said judgment was not upon any evidence presented in the trial of the case and was solely upon a misunderstanding of an entirely outside matter.' This contention is not elaborated upon in appellant's brief and our attention is not called to any competent testimony or circumstance that would support it, and it must be rejected.

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