Tatum v. Rester

• Decision Date: 20 February 1967
• Docket Number: No. 5--4106,5--4106
• Citation: 241 Ark. 1059,412 S.W.2d 293
• Parties: , 242 Ark. 271 George Lee TATUM, Appellant, v. K. W. RESTER, Appellee.
• Court: Arkansas Supreme Court

Page 293

412 S.W.2d 293

241 Ark. 1059, 242 Ark. 271

George Lee TATUM, Appellant, v. K. W. RESTER, Appellee.

No. 5--4106.

Supreme Court of Arkansas.

Feb. 20, 1967.

Supplemental Opinion on Denial of Rehearing March 27, 1967.

Bernard Whetstone, El Dorado, for appellant.

Shackleford & Shackleford, El Dorado, for appellee.

WARD, Justice.

This is a personal injury suit. While George Lee Tatum, a five year old boy (hereafter referred to as appellant), was playing with the children of K. W. Rester (appellee) at Rester's home he was injured when appellee was attempting to back his car out of the carport.

Suit was filed by George's father (who, having died later, was replaced by a guardian--Robert E. Rorex) against appellee to recover damages for the injury allegedly caused by the negligence of appellee. A jury trial resulted in a verdict for appellee.

For a reversal appellant relies on two points which we will discuss in reverse order from that presented in his brief.

One. This point relates to certain instructions given and refused by the trial court, but first it is necessary to set out a summary of the pertinent facts which are not in dispute.

Appellant lives with his family who are close neighbors of appellee who has a wife and small children. The children of the two families frequently play together in their yards. On the day of the accident appellant was playing with appellee's children in his yard. It is not contended that he was invited over on this particular occasion nor is it contended he was a trespasser. Apparently it is agreed that appellant was a licensee or an invitee.

On that occasion appellee was washing his car in the carport, aware of the presence of the children in his yard and that they were nearby. When appellee decided he would back his car clear of the carport to finish the job he told the children of his intention and also told them to keep out of the way. Appellee then proceeded to back the car, holding the left front door open with his left hand. In doing so the edge of the open door struck appellant's hand while it was resting on the post which supported the rear corner of the carport.

At the close of the testimony appellant requested the court to give the folllowing instruction:

'You are instructed that under the circumstances that existed in the present George Lee Tatum to use ordinary care George Lee Taum to use ordinary care not to cause injury to George Lee Tatum.'

The trial court refused the above instruction over the objection of appellant, and then gave to the jury the following instruction over appellant's objection.

'You are also instructed that the time of the occurrence here involved the Defendant, K. W. Rester, did not have a duty to use ordinary care for the safety of the Plaintiff, George Lee Tatum, unless he knew or reasonably should have known that George Lee Tatum was in a position of danger.'

'And, of course, if the Defendant did know or reasonably should have known that George Lee Tatum was in a position of danger at the time of the occurrence, then the Defendant had a duty to use ordinary care to avoid injury to him.'

It is our conclusion the court erred both in refusing and giving the above instructions. This conclusion is supported by the case of Linxwiler v. El Dorado Sports Center, Inc., 233 Ark. 191, 343 S.W.2d 411.

In the above cited case this same issue was raised under similar circumstances. Appellant (a boy eighteen years old) stopped in a bowling alley and chatted with a nineteen year old employer of the alley. The employee picked up a pistol which a policeman had checked at the counter and accidentally shot and injured appellant. The trial court, in that case, instructed the jury as follows:

"The owner of a premises or place of business is under no duty to protect one who goes upon the premises or in the place of business as a volunteer for his own pleasure, privacy, or curiosity."

On appeal to this Court we reversed the judgment in favor of appellee, stating, among other things:

'This instruction should not have been given, for it embodies a rule of limited liability that is properly applicable to a landowner's responsibility for the condition of his premises rather than to his liability for the conduct of his employees.'

Following the above statement we said:

'The condition of the appellee's bowling center had nothing to do with Billy Linxwiler's injury. Lavelle Parker was well aware of Billy's presence. In this situation Parker and his employer owed Billy the standard duty of ordinary care, regardless of his indecision about whether to bowl or not.'

We can see no distinction, in principle, between the cited case and the case under consideration here. It is possible that the trial court could have been misled by the similarity between AMI instruction 1106 and the one which it gave in this case. However it is apparent that AMI 1106 refers to the duty of a person to keep his premises in a safe condition, which is not the situation in this case.

Two. It is also urged by appellant that the trial court 'erred in his handling of the voir dire of the jury panel'. However, since the case must be reversed on the first point and since we find no reversible error here, we deem it unnecessary to discuss this point in detail.

It appears that appellant attempted to ask each of the jurors two questions. One, in effect, was whether he would disregard the apparent ability or inability of the defendant to pay any judgment rendered against him. The other was, in effect, if he owned any stock in or worked for any casualty or liability insurance company. The trial court, upon objection, refused to allow appellant to ask these questions at that time and in the exact way they were presented.

For reasons set out below we find that the trial court committed no reversible error.

In the case of Hogg v. Darden, 237 Ark. 478, 374 S.W.2d 184, we said:

'It has long been recognized in this State that 'litigants in civil cases, as well as in criminal cases, have the right to examine the jurors separately in order to determine whether such jurors are subject to challenge for cause, or to elicit information on which to base the right of peremptory challenge, subject of course to the right of the court to control the extent of such examination, acting in its sound discretion. '' (Emphasis ours.)

The court did not, we think, abuse its discretion under the circumstances disclosed by the record.

The court, on two occasions, told appellant he could inquire of the jury as to the content of the questions mentioned above. The court also explained that it would take up too much time to ask the questions of each juror separately--as requested by appellant. Moreover, the court asked each juror as to his or her occupation, and excused two because of their connection, in some way, with insurance companies. The court also questioned the panel at length regarding their duty to render a fair and impartial verdict under the law and the evidence. Thereafter appellant declined to ask any more questions. This, was said in the Hogg case, supra, 'constitutes a waiver'.

By this opinion we do not mean to hold that the questions appellant desired to ask the jury are, per se, inadmissible if asked in good faith subject to reasonable control by the trial court.

Reversed.

GEORGE ROSE SMITH and BROWN, JJ., concur.

BROWN, Justice (concurring).

I agree this case should be reversed because of error in instructions. However, I believe the opinion fails to give proper consideration to some important points which were raised and which are most likely to occur in the event of another trial.

This cause first was called for trial on February 14, 1966. On behalf of Tatum (plaintiff), his attorney asked this question on voir dire examination:

'Bernard Whetstone--My question is, gentlemen of the jury, do you or any member of your family now, or have you in the past, worked for or own any stock in or have any interest in any casualty or liability insurance company?'

Counsel for Rester (defendant) immediately asked for a mistrial and the court promptly granted the motion.

Although a prior question asked is not in the record, it is apparent from the statements made by the presiding judge that the question regarding insurance was immediately preceded by another question. In substance, the first question inquired of the panel whether the apparent ability or inability of the defendant to pay a judgment would affect the findings of the jury.

After granting the mistrial, the court expressed the view that the propounding of these two questions 'back to back' were meant to impress upon the jury the fact that the defendant probably had insurance. This reasoning seemed to impel the trial court to grant the...