Oliver v. Jones

• Decision Date: 31 May 1965
• Docket Number: No. 5-3606,5-3606
• Citation: 393 S.W.2d 248,239 Ark. 572
• Parties: Lynn OLIVER, Appellant, v. John T. JONES, Appellee.
• Court: Arkansas Supreme Court

Page 248

393 S.W.2d 248

239 Ark. 572

Lynn OLIVER, Appellant, v. John T. JONES, Appellee.

No. 5-3606.

Supreme Court of Arkansas.

May 31, 1965.

Rehearing Denied Sept. 20, 1965.

H. Paul Jackson, Berryville, for appellant.

Lewis E. Epley, Jr., Eureka Springs, for appellee.

McFADDIN, Justice.

This lawsuit stems from a traffic mishap caused by cattle being on the public highway. Appellee Jones was driving his car on State Highway No. 23 in Carroll County and suddenly came upon some cattle on the highway. Jones car struck, or was struck, by a yearling, and the collision resulted in the death of the yearling and damage to the car. Jones filed action against appellant Oliver, as the owner of the yearling, seeking to recover the damages to the car. Oliver denied ownership of the yearling and all liability for damages. Trial to a jury resulted in a verdict and judgment in favor of Jones for $450.00 and on this appeal Oliver urges the two points which we now discuss.

I. The Insurance Matter. When plaintiff Jones was testifying, the following occurred:

'Q. Did you talk to Lynn Oliver about this after the accident?

'A. A few days after.

'Q. What did he tell you?

'A. Well, he said that he went out and counted his cattle and he had none missing and I asked him if he had insurance on the cattle and he said he did, but he didn't tell me who had it insured.

'MR. JACKSON: I am going to object to any statements about insurance.

'THE COURT: I will sustain the objection about insurance. The jury will disregard it.

* * *

* * *

'MR. JACKSON: I am going to move the Court at this time for a mistrial because of the fact of the mention of liability insurance or the suspicion of any liability insurance and I ask the Court to declare a mistrial.

'THE COURT: Gentlemen of the Jury, I will sustain the objection in regard to it. I will ask you to disregard it. I will ask you further if there is any question about completely disregarding the question of insurance? It's immaterial whether there is, or there isn't and it has no bearing whatsoever in this case. Since I have withdrawn it from your consideration, I will ask you individually if you can accept the ruling of the Court, or would you have a reservation in your mind that would influence your verdict in the case? Mr. Newman, can you completely disregard the statement here and the answer given and follow the instructions of the Court?

'MR. NEWMAN: (A Juror) Yes, sir.'

The Court then interrogated each juror individually and received a reply that each could and would disregard all reference to insurance.

The appellant insists that the 'court erred in failing to declare a mistrial when John T. Jones, appellee, while testifying, said that the defendant-appellant had disclosed to him that he had liability insurance.' As we see the record, there was no mention of the word 'liability.' So far as the record here shows it merely meant that Mr. Oliver had insurance on the life of his cattle. But, regardless of that distinction, we hold that the prompt action of the Trial Court eliminated any prejudice that might have occurred because of the mention of the word 'insurance.' Malco Theatres v. McLain, 196 Ark. 188, 117 S.W.2d 45; Beatty v. Pilcher, 218 Ark. 152, 235 S.W.2d 40; and Ragon v. Day, 228 Ark. 215, 306 S.W.2d 687. We find no merit in appellant's claim.

II. Defendant's Motion For Instructed Verdict. At the close of the entire case ¹ defendant Oliver moved that a verdict be directed in his favor; and the ruling of the Court in denying the motion for an instructed verdict is the point ² now urged. This point has given us considerable concern. Section 1 of Initiated Act No. 1 of 1950 (as found on page 1013 of the printed Acts of 1951) reads: 'After the passage of this Act it shall be unlawful for owners of cattle, horses, mules, hogs, sheep, or goats to allow them to run at large along or on any public highway in the State of Arkansas.' ³ The plaintiff's theory was that the defendant had allowed his stock to run at large on the highway and that such violation of the statute was evidence of negligence. To make a jury question of defendant's liability in this case the burden was on the plaintiff to offer substantial evidence (a) that the yearling was the property of Oliver; and (b) that Oliver was guilty of negligence in allowing his yearling to be on the highway. Briscoe v. Alfrey, 61 Ark. 196, 32 S.W. 505, 30 L.R.A. 607; Fraser v. Hawkins, 137 Ark. 214, 208 S.W. 296; Field v. Viraldo, 141 Ark. 32, 216 S.W. 8; Pool v. Clark, 207 Ark. 635, 182 S.W.2d 217; and Favre v. Medlock, 212 Ark. 911, 208 S.W.2d 439. See also the Opinion by Judge Lemley in Poole v. Gillison, D.C., 15 F.R.D. 194.

As to the ownership of the yearling the evidence showed: (a) that some of the cattle on the highway belonged to defendant Oliver; (b) that after the mishap some neighbors drove all the cattle (except the dead yearling) to a nearby enclosure; (c) that next morning one of Oliver's cows went back to the scene of the mishap (which testimony was designed to show that the cow was looking for her yearling); (d) that Oliver did not mark or...