Bearden v. J. R. Grobmeyer Lumber Co.

Leavon BEARDEN v. J.R. GROBMYER LUMBER CO.
and Delsondro Sims

97-571                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 12, 1998


1.   Evidence -- civil action -- evidence of conviction or bond
     forfeiture resulting from violation of traffic laws
     inadmissible. -- Evidence of a conviction or a bond forfeiture
     resulting from a violation of traffic laws is inadmissible in
     any civil action; if the record of a conviction is
     inadmissible, there is even more reason to hold that evidence
     of a traffic citation, which is a "mere charge," is
     inadmissible.  

2.   Evidence -- introduction of incompetent evidence objected to -
     - opposing party may introduce equally incompetent rebuttal
     evidence. -- The introduction of incompetent evidence, over
     objection, allows the opposing party to introduce equally
     incompetent rebuttal evidence; a plaintiff should be permitted
     to present otherwise inadmissible evidence in response to a
     defendant's incompetent and inadmissible statement. 

3.   Evidence -- relevant and damaging evidence properly objected
     to but still admitted -- adversary entitled to give answering
     evidence. -- If the evidence, though inadmissible, is relevant
     to the issues and hence probably damaging to the adversary's
     case, or though irrelevant is prejudice-arousing to a material
     degree, and if the adversary has seasonably objected or moved
     to strike, then the adversary should be entitled to give
     answering evidence as of right; by objecting, he has done his
     best to save the court from mistake, but his remedy by
     assigning error to the ruling is not adequate; he needs a fair
     opportunity to win his case at the trial by refuting the
     damaging evidence.

4.   Evidence -- neither objection nor motion to strike made at
     time of objectionable testimony -- trial court's refusal to
     admit rebuttal evidence not error. -- Where there was neither
     an objection nor a motion to strike at the time of the
     objectionable testimony, appellant did not accept the trial
     court's offer to admonish or instruct the jury to disregard
     the officer's testimony, and the statement in question came
     during direct examination in appellant's case-in-chief, the
     trial court's refusal to allow appellant to introduce rebuttal
     testimony, which would have been otherwise inadmissible, was
     not in error. 

5.   New trial -- motion denied -- no abuse of discretion found. --
     In his motion for a new trial, appellant contended that the
     verdict in favor of the appellees constituted a "miscarriage
     of justice" in view of the failure to allow him to introduce
     the otherwise inadmissible rebuttal evidence; no authority was
     cited from which the supreme court could deduce an abuse of
     discretion. 

6.   New trial -- motion made on grounds that verdict clearly
     against preponderance of evidence -- verdict affirmed if
     supported by substantial evidence. -- When a motion for a new
     trial is made on the ground that the verdict is clearly
     contrary to the preponderance of the evidence, the supreme
     court affirms if the verdict is supported by substantial
     evidence, giving the verdict the benefit of all reasonable
     inferences permissible in accordance with the proof.

7.   New trial -- only one witness as to how accident occurred --
     verdict in witness's favor not clearly against preponderance
     of evidence. -- It is within the province of the jury to
     believe or disbelieve the testimony of any witness; given the
     fact that the only evidence as to what happened to cause the
     accident was the appellee driver's version of the facts, the
     supreme court could not say that the verdict in appellees'
     favor was clearly against the preponderance of the evidence.
     

     Appeal from Pulaski Circuit Court; Frederick Ursery, Special
Judge; affirmed.
     J.R. Nash, for appellant.
     Huckabay, Munson, Rowlett & Tilley, P.A., by:  Jim Tilley and
Julia L. Busfield, for appellee J.R. Grobmyer Lumber Co.

     David Newbern, Justice.
     The main issue in this appeal is whether the Trial Court erred
in refusing to allow the appellant, Leavon Bearden, to introduce
inadmissible evidence to rebut other inadmissible evidence that was
before the jury.  We hold that the Trial Court did not err in that
respect.  We also conclude that it was not error to overrule Mr.
Bearden's motion for a new trial.  We affirm the judgment in favor
of  appellees J.R. Grobmeyer Lumber Co. ("Grobmeyer") and Delsondro
Sims.
     On a rainy day in September 1994, Leavon Bearden drove his
pickup truck west on four-lane Roosevelt Road in Little Rock. 
Delsondro Sims, driving a large, unloaded truck owned by his
employer, J.R. Grobmeyer Lumber Co., was headed east on Roosevelt. 
As the truck driven by Mr. Sims approached a curve to the right,
Mr. Sims braked and "geared down" due to the presence of a slower
tractor-trailer ahead of him.  He moved to the inside lane to pass
the tractor-trailor.  Mr. Bearden was on the inside lane going
west.
     As he was braking or gearing down, Mr. Sims felt a "twitch" in
the truck he was driving, meaning that it slid somewhat to the
left.  He felt a collision and then looked in his rear-view mirror
and could see Mr. Bearden's damaged truck crossing into the east-
bound lane.  Mr. Sims stopped, put out emergency signals, and
called his employer.
     Mr. Bearden's truck had struck, or had been struck by, the
rear tire and bed of the truck being driven by Mr. Sims.  Mr.
Bearden was seriously injured, and his truck was damaged beyond
repair.  He sued Mr. Sims and Grobmeyer, alleging that Mr. Sims had
been negligent in the operation of the Grobmeyer truck, which was
undamaged by the collision.   
       At the trial, counsel for Mr. Bearden called Mr. Sims as his
first witness.  Mr. Sims was asked if the Grobmeyer truck had
crossed the center line into Mr. Bearden's oncoming-traffic lane. 
He denied that it had.  He was questioned about the somewhat 
equivocal testimony he had given in a deposition, but he continued
to deny consistently that his vehicle had crossed the center line
and insisted that he had never said it had done so.  Then, during
continued questioning of Mr. Sims by Mr. Bearden's counsel, the
following occurred:
     
     Q: Well, where on your truck was the contact with Mr.
     Bearden's vehicle?
     A: We never established where the contact was.  No one never
     established where it was at or anything.  I mean, the police
     never, you know, gave a ticket or -- they sent me on over to
     Georgia-Pacific.

Mr. Bearden's counsel neither objected nor asked that the statement
about the ticket be stricken.  Shortly thereafter he passed the
witness to counsel for Mr. Sims and Grobmeyer.  During the ensuing
cross-examination the following occurred:

     Q: Mr Sims, you stayed and the police officer investigated
     this accident?
     A: I guess they did.
     Q: Okay.
     A: I never got, you know, anything from it.
     Q: You said, in answer to Mr. Nash's question, no citations
     were given?
     A: No, no citations.
     Q: He's asked you --

     At that point Mr. Bearden's counsel asked to approach the
bench.  He objected to the testimony concerning the officer's
failure to issue a citation.  Opposing counsel responded that the
statement had been made initially in response to direct examination
by Mr. Bearden's counsel.  Mr. Bearden's counsel said he had not
heard the earlier statement and that, in any event, it was not
responsive to any question he had asked.  The Trial Court offered
to admonish or instruct the jury to disregard the testimony, and
Mr. Bearden's counsel said he would have to think about it.
     Mr. Bearden's counsel did not seek an admonition or
instruction on the point but ultimately asked that he be allowed to
inquire of the officer who investigated the accident as to what
caused the accident and whose fault he thought the accident was and
to bring out a statement, apparently from the police report, that
Mr. Sims was speeding when the accident occurred.  The request was
refused.

                    1. Curative admissibility
     Evidence of a conviction or a bond forfeiture resulting from
a violation of traffic laws is inadmissible in any civil action. 
Ark. Code Ann.  27-50-804 (Repl. 1994); Breitenberg v. Parker, 237
Ark. 261, 372 S.W.2d 828 (1963).  In Girard v. Kuklinski, 235 Ark.
337, 360 S.W.2d 115 (1962), it was explained that if the record of
a conviction is inadmissible, there is even more reason to hold
that evidence of a traffic citation, which is a "mere charge," is
admissible.  We have not dealt with the question of the
admissibility of evidence that no ticket was issued, and we need
not do so in this case, as both parties have proceeded on the
assumption that Mr. Sims's remark about not having received a
ticket was inadmissible.
     Mr. Bearden's argument is that, as inadmissible evidence
favoring the defense was before the jury, he should have been
allowed to introduce rebuttal testimony from the investigating
officer, which he concedes would have been otherwise inadmissible.
     In German-American Ins. Co. v. Brown, 75 Ark. 251, 87 S.W. 135
(1905), we held that the introduction of incompetent evidence, over
objection, allowed the opposing party to introduce equally
incompetent rebuttal evidence.  We wrote, "Where one party
introduces incompetent testimony, he cannot complain of the action
of the court in allowing the other party to introduce the same
character of evidence directed to the same point at issue.  He
waives all objection to error which he thus invites."  75 Ark. at
257, 87 S.W.  at 137.  Cf. Henson v. State, 239 Ark. 727, 730, 393 S.W.2d 856, 859 (1960) ("[T]wo wrongs do not make a right"). 
Recently, in Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992),
we held that a plaintiff should have been permitted to present
otherwise inadmissible evidence of insurance coverage in response
to a defendant's incompetent and inadmissible statement implying
that he was "alone" in his defense and could not replace that which
would be taken from him.  
     In the Peters case we cited, with approval, the following
language from E.W. Cleary, McCormick on Evidence,  57, at 147-148
(3d ed. 1984):

          If the evidence, though inadmissible, is relevant to the
     issues and hence probably damaging to the adversary's case, or
     though irrelevant is prejudice-arousing to a material degree,
     and if the adversary has seasonably objected or moved to
     strike, then the adversary should be entitled to give
     answering evidence as of right.  By objecting, he has done his
     best to save the court from mistake, but his remedy by
     assigning error to the ruling is not an adequate one.  He
     needs a fair opportunity to win his case at the trial by
     refuting the damaging evidence .... [Footnotes omitted.]

Peters v. Pierce, 308 Ark. at 64, 823 S.W.2d  at 822 (emphasis
supplied.)
     Here, not only was there neither an objection nor a motion to
strike at the time of the objectionable testimony, but the
statement in question came during direct examination in Mr.
Bearden's case-in-chief.  If, indeed, the statement concerning the
failure to issue a traffic ticket was inadmissible, as the parties
assume, the question of curative admissibility might have been
averted by an objection sustained by the Trial Court.  Certainly
the later reference to it by counsel for Mr. Sims and Grobmeyer, to
which Mr. Bearden's counsel did object, could have been prevented.
     The objection presumably and properly would have been that Mr.
Sims's statement about the failure to issue a traffic ticket was,
as Mr. Bearden's counsel later argued to the Trial Court and argues
in this appeal, not responsive to the question he had asked.  
     We might have been required to deal with curative admissibilty
even if the Trial Court had sustained a timely objection and had
stricken the evidence and admonished the jury to disregard it if it
was so devastating to Mr. Bearden's case that striking the
testimony and admonishing the jury would not have cured the
problem.  That was one of the bases of our decision in the Peters
case.  We do not reach that question here, of course, as there was
no timely objection or motion to strike, and Mr. Bearden did not
accept the Trial Court's offer to admonish or instruct the jury to
disregard the officer's testimony.
          
                          2. New trial
                    a. Miscarriage of justice
     Motions for new trial are governed by Ark. R. Civ. P. 59,
which provides in part as follows:

     (a) Grounds. A new trial may be granted to all or any of the
     parties and on all or part of the claim on the application of
     the party aggrieved, for any of the following grounds
     materially affecting the substantial rights of such party: (1)
     any irregularity in the proceedings or any order of court or
     abuse of discretion by which the party was prevented from
     having a fair trial; ... (6) the verdict or decision is
     clearly contrary to the preponderance of the evidence or is
     contrary to law; ....

     In his motion for a new trial, Mr. Bearden contended that the
verdict in favor of Mr. Sims and Grobmeyer constituted a
"miscarriage of justice" in view of the failure to allow him to
introduce the evidence discussed above.  In support of that
position on appeal, Mr. Bearden cites Young v. Honeycutt,  324 Ark.
120, 919 S.W.2d 216 (1996), a case in which we reviewed a decision
granting a new trial.  Our concern in the Young case was
not with whether there had been a miscarriage of justice in the
abstract.  Rather, our concern was with whether the Trial Court had
erred in holding that the verdict was contrary to the preponderance
of the evidence.  In support of the use of the phrase "miscarriage
of justice" in the Young case, we cited Brant v. Sorrells, 293 Ark.
276, 737 S.W.2d 450 (1987), an earlier decision in which we had
used that same phrase.  
     The Brant decision was also one in which the Trial Court had
granted a motion for a new trial on the basis that the jury verdict
was clearly against the preponderance of the evidence.  We affirmed
on the basis that the Trial Court had not abused his discretion in
granting the motion for new trial.
     Mr. Bearden's argument on appeal to the effect that there was
a miscarriage of justice in this case refers only to the argument,
dealt with above, that he should have been allowed to introduce the
otherwise inadmissible rebuttal evidence.  No authority is cited
from which we can deduce an abuse of discretion in this case.  Most
of the argument in favor of a new trial has to do with the issue
faced in the Young and Brant decisions, i.e., whether the jury
verdict was clearly against the preponderance of the evidence.

                     b. Clear preponderance 
     Mr. Bearden recognizes that, when a trial court has refused to
grant a new trial in response to an argument that the verdict is
clearly against the preponderance of the evidence, the test on
appeal is whether there is any evidence to support the jury's
verdict. 

     When a motion for a new trial is made on the ground that
     the verdict is clearly contrary to the preponderance of
     the evidence, Ark. R. Civ. P. 59(a)(6), we affirm if the
     verdict is supported by substantial evidence, giving the
     verdict the benefit of all reasonable inferences
     permissible in accordance with the proof.

Patterson v. Odell, 322 Ark. 394, 401, 909 S.W.2d 648, 652 (1995). 
"It is within the province of the jury to believe or disbelieve the
testimony of any witness."  Id. at 402, 909 S.W.2d  at 652.
     Given the fact that the only evidence as to what happened to
cause the accident was Mr. Sims's version of the facts, we cannot
say that the verdict in favor of Mr. Sims and Grobmeyer was clearly
against the preponderance of the evidence.
     Affirmed.
     Brown, J., not participating.