Rickett v. Hayes

• Decision Date: 08 July 1974
• Docket Number: No. 73--221,73--221
• Citation: 256 Ark. 893,511 S.W.2d 187
• Parties: Richard W. RICKETT, Jr., Appellant, v. Dr. Harry HAYES, Appellee.
• Court: Arkansas Supreme Court

Page 187

511 S.W.2d 187

256 Ark. 893

Richard W. RICKETT, Jr., Appellant, v. Dr. Harry HAYES, Appellee.

No. 73--221.

Supreme Court of Arkansas.

July 8, 1974.

Tom Gentry, Little Rock, for appellant.

Smith, Williams, Friday, Eldredge & Clark by W. A. Eldredge, Jr., J. D. Watson, Little Rock, for appellee.

FOGLEMAN, Justice.

We remanded this medical malpractice case for a new trial. Rickett v. Hayes, 251 Ark. 395, 473 S.W.2d 446. On this appeal from a second judgment based upon a jury verdict adverse to the appellant, a former patient of the appellee, appellant asserts the following points for reversal:

I. The trial court committed prejudicial error in failing to disqualify a juror for prejudice and bias.

II. In criticizing the appellant's expert witness, Dr. Walker, the trial court invaded the province of the jury.

III. AMI 1501, as modified and given by the trial court, was prejudicially erroneous.

These points may be treated without elaborate preliminary statements of the factual background. We will take them up in order and, under the heading pertaining to each point, state only the background essential to the treatment of that point, as disclosed by the abstracts in the case. At the outset, we state that we find no reversible error.

I

Twenty-four prospective jurors were chosen by the clerk for the regular jury panel. After preliminary questions by the circuit judge were answered by them, the respective attorneys conducted voir dire examinations. A Mrs. Dickerson disclosed that she was then under the care of a doctor and that she was the sister-in-law of a doctor. There was, to say the least, some ambiguity in her responses to questions pertaining to her attitude about medical malpractice cases, and it would not be unreasonable to say that she equivocated about the matter. She first stated that, if the evidence showed that there had been negligence, she could go along with it. When appellant's attorney asked her if she could be sure, she said that she didn't know. She then gave a positive affirmative answer when the court asked her if she would make a finding that appellee was guilty of negligence if the evidence warranted it under the instructions of the court. When the court inquired as to any reluctance to do so on her part, she stated that she would like to be disqualified, or that she would disqualify herself. She disavowed any preconceived notion about malpractice that would prevent her from giving the parties a fair, impartial determination of the facts. When appellant's attorney again pursued the matter of her desire to disqualify, she said that, maybe there was some doubt in her mind, but she didn't think there would be any doubt in giving 'him' a fair trial. When appellant's attorney asked, 'Well, you're not quite sure, are you?' she responded, 'Well, maybe not.' When asked by the judge to explain, Mrs. Dickerson said that she felt one way when questions were put by the attorney, but felt confident when the questions were put in the way they were by the judge. She was emphatic, upon further questioning by the judge in saying that she would be fair and impartial, that she could give 'him' a fair judgment and would find for Mr. Rickett just as quickly as she would for Dr. Hayes should the evidence warrant it. The judge found her qualified over appellant's objection and challenge for cause. Thereafter, appellant's attorney struck Mrs. Dickerson's name in exercising his three peremptory challenges. In arguing appellant's motion for new trial, the attorney stated that she was one of those he was forced to strike because he couldn't let someone sit on the jury who answered as she did.

We need not decide whether the circuit judge abused his discretion in this instance. The questioned juror did not sit on the jury. It has been a long-standing rule in this state that a party is not entitled to claim prejudice in such circumstances, unless it is shown that he was forced to accept some objectionable or disqualified juror without the privilege of exercising a peremptory challenge. Arkansas State Highway Commission v. Dalrymple, 252 Ark. 771, 480 S.W.2d 955. No juror who was challenged for cause served on the jury and it is not shown that appellant would have otherwise struck the name of some juror other than the three actually stricken.

II

Dr. Robert V. Walker, an oral surgeon of Dallas, Texas, who had performed surgery on appellant, after the surgery and treatment by Dr. Hayes, was called as an expert witness by appellant. During cross-examination of this witness, appellant's attorney registered an objection, asserting that the cross-examining attorney was badgering the witness. The trial judge stated that the attorney for appellee was entitled to considerable latitude on cross-examination, expressed his desire to keep the trial on an impartial plane and stated the necessity for cooperation by all attorneys in the case in order that his objective be accomplished. When appellant's attorney continued to object saying that appellee's attorney was badgering the witness by not permitting him to fully answer questions, the judge interrupted, saying:

The witness is very reluctant or he offers more testimony then is called for, he volunteers information and I've asked the witness to cooperate and I've also asked the attorneys. Now, I'm doing the very best I can to require both parties to conduct this trial in a professional-like manner. Now, if you want to proceed, we will. If you want to take a recess, we'll take it and come back and try some more.

These are the remarks of which appellant now complains. His attorney did request a recess, during which he stated his objections in camera, directing them toward the characterization of the witness as reluctant and the statement that the witness volunteered more information than he was asked for by the cross-examiner's questions. Without any further ruling having been made, appellant's attorney stated that he couldn't afford to ask for a mistrial. After the judge stated he had on two or three previous occasions asked the witness to answer the questions, had asked the cross-examiner to proceed in an orderly manner, and had intended his remarks to be addressed to both parties equally, the cross-examination was resumed. No admonition was then given the jury and none was requested. The cross-examination proceeded to its conclusion on the same day but before the commencement of redirect examination on the following day the trial judge addressed an admonition to the jury. He said:

So I would ask you to be partient with the attorneys and the Court and if the objections seem to you to be frivolous or unnecessary, please give us the benefit of the doubt and realize that the attorneys are doing their best to do what the law says they should do and the Court is doing its best to follow the law in making the decisions. . . . sometimes in the heat of trial, it may appear that we have lost sight of these things and that is not necessarily true. The attorneys, I am confident, have complete respect for the Court and I, likewise, have complete confidence in the attorneys. Do not hold anything against the litigants, one way or the other, if things seem sometimes to get a little uptight. You may proceed.

In instructing the jury, Judge Digby appropriately gave AMI, Civil, 101(f), which reads:

I have not intended by anything I have said or done, or by any questions that I may have asked, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness who testified. If anything I have done or said has seemed to so indicate, you will disregard it.

As has often been said, it is simply impossible for an appellate court or its individual members to capture from a cold written record the atmosphere prevailing in the courtroom during a fiercely contested trial, as this obviously was. It is the peculiar role of the trial judge to supervise and expedite the trial of a lawsuit and to avoid having it degenerate into an emotionally charged verbal battle between attorneys or between witnesses on the one hand and attorneys on the other. Of course, in doing so, it is his duty to avoid any expression or intimation of his feelings about the credibility of any witness or his opinion on any question of fact which might influence the jury.

Appellee's counsel have, in their brief, referred us to portions of the record of the cross-examination of Dr. Walker which might well be taken as indicative of a reluctance on the part of the witness to give direct answers and of a desire to volunteer information well beyond the scope of questions directed to him. To say the least, it does appear that the judge had found it necessary to admonish this witness on more than one occasion during his cross-examination to answer questions directly and concisely. Certainly there are occasions when a trial judge may and should rebuke, reprove or admonish a witness about his conduct and manner of answering questions. Appellee's attorneys have also cited cases from other jurisdictions where remarks less moderate than those made by the trial judge here have been held to be not prejudicial or reversible error. See Kendrick v. Healy, 27 Wyo. 123, 192 P. 601 (1920); Ganz v. Metropolitan St. Ry. Co., 220 S.W. 490 (Mo.1920); Uram v. American Steel & Wire Company of New Jersey, 379 Pa. 375, 108 A.2d 912 (1954); Aetna Life Insurance Company v. Kramer, 65 Okl. 165, 165 P. 179 (1917). But we need not determine whether the judge's remarks in this instance were necessary to the proper conduct of the trial, or whether they were indicative of the judge's feeling about credibility of the witness. As above pointed out, neither a motion for declaration of a mistrial nor a request for an admonitory instruction was made, even though appellant now argues that it was the duty of the trial court to instruct the jury that his remarks should not be considered as reflecting upon the credibility...