Miller v. Goodwin

• Decision Date: 07 April 1969
• Docket Number: No. 5--4825,5--4825
• Citation: 439 S.W.2d 308,246 Ark. 552
• Parties: Wilburn W. MILLER, Appellant, v. Herschel GOODWIN and Dorothy Beevers, Administratrix, Appellees.
• Court: Arkansas Supreme Court

Page 308

439 S.W.2d 308

246 Ark. 552

Wilburn W. MILLER, Appellant, v. Herschel GOODWIN and Dorothy Beevers, Administratrix, Appellees.

No. 5--4825.

Supreme Court of Arkansas.

April 7, 1969.

Rehearing Denied May 5, 1969.

Shaver, Tackett & Jones, by Nicholas H. Patton, Texarkana, for appellant.

Chambers & Chambers, and McKay, Anderson & Crumpler, Magnolia, for appellees.

GEORGE ROSE SMITH, Justice.

This case has been in litigation for more than four and a half years, with four jury trials. On July 17, 1964, a heavy truck, described as a derrick-type rig used in the oil fields, swerved suddenly off the Warnock Springs Road in Columbia county, overturned, and caught on fire. The appellee Herschel Goodwin, who was driving the truck, was badly burned. Goodwin's employer, Robert Beevers, who was riding with him, was even more severely burned and died less than ten hours later.

The original suit was for the wrongful death only. Beevers' administratrix, the plaintiff, charged Wilburn W. Miller, the defendant, with having caused the accident by driving a pickup truck down the center of the road and thereby forcing Goodwin to swerve to his right to avoid a head-on collision. The first trial ended in a hung jury. On the appeal from the second trial we reversed a judgment for the defendant because of an error in the instructions. Beevers v. Miller, 242 Ark. 541, 414 S.W.2d 603 (1967). Goodwin then sued Miller for personal injuries. After a consolidation of the cases a third trial also ended in a hung jury. At the fourth trial, now on review, the jury attributed 90% of the negligence to Miller and 10% to Goodwin. Both plaintiffs recovered substantial damages.

The appellant urges three points for reversal. First, it is contended that the court allowed the plaintiffs' attorney to go too far in questioning a juror about his possible bias toward insurance companies. In response to a question to the whole panel the juror Lindsey stated that he was an insurance agent representing companies writing automobile liability insurance. The plaintiffs' challenge for cause was denied. Counsel was then allowed to put the following two questions--or perhaps more accurately, the following question and restated question, as Lindsey did not answer the first inquiry:

Mr. Crumpler: Would the fact, Mr. Lindsey, that you sell liability insurance in any way prejudice you, or have you acquired a habit, that is, by aligning yourself with an insurance company, would you in any way side with the defendant just because your're usually on the defense side?

Mr. Tackett: Now just a minute, Your Honor, we object and we ask for a mistrial.

The Court: It will be overruled.

Mr. Tackett: Save our exceptions.

Mr. Crumpler: In other words, Mr. Lindsey, in this particular case you feel like you can sit on this jury and give the plaintiff free and clear consideration just as though you never had sold any liability insurance?

Mr. Tackett: We object again, Your Honor, and ask for a mistrial.

The Court: It will be overruled. (Exceptions.)

It is contended that the questions had the effect of informing the panel that the defendant had liability insurance. We do not agree with that view, for we find no reason to believe that the inquiries were not made in good faith for a permissible purpose. In a similar situation, except that the trial court refused to allow any questions on the subject of insurance, we said in Dedmon v. Thalheimer, 226 Ark. 402, 290 S.W.2d 16 (1956): 'A person may have connections with an insurance company that would cause him to be biased in favor of such companies. * * * A lawyer trying a case would be rather careless if he failed to ascertain as well as possible if any one on the venire was biased or prejudiced on a question involved in the litigation, even though such question would be only indirectly involved.'

Here counsel challenged Lindsey for cause when he revealed his connection with liability insurance companies. That move failed. It was then advisable for the attorney, before deciding whether to challenge Lindsey peremptorily, to try to find out if his insurance ties would cause him to favor the defensive side of the lawsuit.

Counsel also cite Armstrong v. Lloyd, 234 Ark. 233, 352 S.W.2d 84 (1961), to support the argument that in any event the further interrogation of Mr. Lindsey should have been conducted in chambers, outside the hearing of the rest of the panel. Perhaps that procedure would have been desirable, but the issue was not raised in the court below, for no such request for an in-chambers hearing was made. We find no merit in the appellant's first point.

Second, counsel for the appellant, without questioning the integrity either of the jury commissioners or of the jury itself, filed a motion to set aside the verdict on the ground that two of the jury commissioners had served in that same capacity within the precding four years, contrary to Ark.Stat.Ann. § 39--202 (Repl.1962). The trial court correctly denied the motion. The proof is not entirely clear, but even if it be assumed that the objection would have been valid if made to the panel as a whole, it came too late after the jury had been sworn and had returned its verdict. Brown v. State, 12 Ark. 623 (1852). The prior service of the jury commissioners was a matter of public record that could have been raised by a challenge to the panel. The appellant cannot be permitted to speculate upon the chance of a favorable verdict and then belatedly raise the point after the verdict proved to be in favor of his adversary.

Finally, it is insisted that the court should have excluded proof of a purported dying declaration by which Beevers told a nurse at the hospital that 'a butane truck ran them off the road.' The identification of the trunk was important, because that was the most sharply...