Lin Mfg. Co. of Ark. v. Courson

• Decision Date: 03 February 1969
• Docket Number: No. 5--4765,5--4765
• Citation: 436 S.W.2d 472,246 Ark. 5
• Parties: LIN MANUFACTURING COMPANY OF ARKANSAS, Inc., et al., Appellants, v. Harry COURSON, Appellee.
• Court: Arkansas Supreme Court

Page 472

436 S.W.2d 472

246 Ark. 5

LIN MANUFACTURING COMPANY OF ARKANSAS, Inc., et al., Appellants, v. Harry COURSON, Appellee.

No. 5--4765.

Supreme Court of Arkansas.

Feb. 3, 1969.

Arnold, Hamilton & Streetman, Crossett, for appellants.

Switzer & Griffin, Crossett, for appellee.

GEORGE ROSE SMITH, Justice.

The plaintiff-appellee, Harry Courson, was injured when a truck owned by Lin Manufacturing Company and being driven by its employee ran a stop sign and struck Courson's car. In appealing from a verdict and judgment for $55,000 Lin and its truckdriver question four rulings by the trial court and challenge the size of the verdict.

I. It is argued that the defendants were prejudiced by Courson's unnecessary reference to the matter of liability insurance. On cross-examination counsel questioned Courson at some length about earlier incidents of injury and hospitalization. Courson was asked: 'How many doctors have you consulted in the last few years concerning your various ailments?' In reply, Courson named eight doctors, including Dr. Reed.

Dr. Reed was not actually one of Courson's own doctors, having examined him at the defendants' request in connection with the lawsuit. On redirect examination Courson's attorney sought to make that fact clear. The following excerpt from the record shows what happened:

Q. Now you mentioned being examined by Dr. Reed.

A. Yes.

Q. At whose instance--why did you go see Dr. Reed?

A. Well, because the insurance company or someone--

Mr. Streetman: We object to that and we ask the Court to declare a mistrial. There is no insurance company here as a defendant, and we ask the Court for a mistrial.

Court: Overruled.

We perceive no reversible error. Plaintiff's counsel had a valid reason for wanting the jury to know that Dr. Reed was not Courson's own physician, for otherwise the jurors might have drawn an adverse inference from the plaintiff's failure to call Dr. Reed as a witness. Thus the question was put with apparent sincerity. When, as here, the reference to insurance occurs in good faith rather than in a deliberate attempt to prejudice the jury, an admonition by the court is ordinarily sufficient to correct the error. Ragon v. Day, 228 Ark. 215, 306 S.W.2d 687 (1957); Adams v. Summers, 222 Ark. 924, 263 S.W.2d 711 (1954); Beatty v. Pilcher, 218 Ark. 152, 235 S.W.2d 40 (1950). No doubt the court would have admonished the jury in this instance, but the defendants did not request that corrective measure. Instead, they asked only for a mistrial, to which they were not entitled.

II. Counsel for the plaintiff, in developing the proof of damages, called witnesses to show that two large companies in the vicinity had a policy against employing anyone with a history of back trouble (with which Courson was afflicted as a result of the collision). When it was brought out that the first company's policy was a written policy, defense counsel objected to the witness's testimony on the ground that the writing, which the witness did not have with him, would be the best evidence. It is now insisted that the objection should have been sustained.

The court was right. The best evidence rule comes into play when the contents of a writing or its exact wording is an issue in the case. When, as in the case at bar, the existence of the writing is merely a collateral matter, the rule does not apply. St. Louis & S.F.R.R. v. Kilpatrick, 67 Ark. 47, 54 S.W. 971 (1899). Moreover, as McKelvey points out: 'There is a distinction between proving a fact which has been put in writing and proving the writing itself. Because a fact has been described in writing does not exclude other proof of the fact.' McKelvey, Evidence, § 345 (1944). Here the company's policy, which might have been an oral directive, was the fact to be proved. That the policy had been reduced to writing certainly did not exclude other proof of the basic fact.

III. Near the beginning of his closing argument Courson's attorney said to the jury: 'I think I would like to caution you and possibly use at this time--one of the purposes of a jury--the golden rule of do unto others as you would have them do unto you.' Defense counsel at once objected and asked for a mistrial. The court refused to declare a mistrial but did instruct the jury to disregard the statement of counsel. (We do not agree with the appellants' insistence that the record shows that the 'golden rule' argument was renewed even after the court's ruling.)

We find no error. It is true, as pointed out in Russell v. Chicago, R.I. & P.R.R., 249 Iowa 664, 86 N.W.2d 843 (1957), and in the annotation to that case in 70 A.L.R.2d 927, that it is improper for a plaintiff's attorney to urge the jury to apply the golden rule by putting itself in the plaintiff's position and awarding whatever amount the jurors would like to receive themselves for a similar injury. Here, however, counsel never reached the point of actual prejudice, because his argument was interrupted at the first...