{ "id": 1904333, "name": "Johnnie PETERS v. William PIERCE", "name_abbreviation": "Peters v. Pierce", "decision_date": "1992-01-21", "docket_number": "91-183", "first_page": "60", "last_page": "67", "citations": [ { "type": "official", "cite": "308 Ark. 60" }, { "type": "parallel", "cite": "823 S.W.2d 820" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "324 F.2d 582", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 104707 ], "weight": 2, "year": 1963, "pin_cites": [ { "page": "588-89" } ], "opinion_index": 0, "case_paths": [ "/f2d/324/0582-01" ] }, { "cite": "239 Ark. 727", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1730977 ], "weight": 4, "year": 1965, "pin_cites": [ { "page": "732" }, { "page": "859" } ], "opinion_index": 0, "case_paths": [ "/ark/239/0727-01" ] }, { "cite": "296 Ark. 571", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892714 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "576" }, { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/ark/296/0571-01" ] }, { "cite": "263 Ark. 787", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672680 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0787-01" ] }, { "cite": "291 Ark. 325", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872597 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0325-01" ] }, { "cite": "306 Ark. 153", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1900914 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/306/0153-01" ] }, { "cite": "251 Ark. 709", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1633409 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/ark/251/0709-01" ] }, { "cite": "253 Ark. 1063", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1627314 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/ark/253/1063-01" ] }, { "cite": "271 Ark. 266", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1756155 ], "weight": 9, "year": 1980, "pin_cites": [ { "page": "267" }, { "page": "22" } ], "opinion_index": 0, "case_paths": [ "/ark/271/0266-01" ] } ], "analysis": { "cardinality": 816, "char_count": 14799, "ocr_confidence": 0.915, "pagerank": { "raw": 2.50389434309129e-07, "percentile": 0.8098286811316027 }, "sha256": "b36b29a91b0251be238e89f36b5f80695d822c3118468b857cea12f003f21973", "simhash": "1:bf659a661f761792", "word_count": 2429 }, "last_updated": "2023-07-14T18:22:40.186541+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Corbin and Brown, JJ., dissent.", "Brown, J., joins in this dissent." ], "parties": [ "Johnnie PETERS v. William PIERCE" ], "opinions": [ { "text": "Tom Glaze, Justice.\nAppellant brought suit against appellee alleging appellee\u2019s vehicle rear-ended appellant\u2019s pickup truck after the appellant stopped his truck at an intersection. Appellee responded, denying any liability. At trial, appellant offered proof that he had incurred $5,000 in medical bills and that his loss of wages was between $126,000 and $135,000. Appellee countered appellant\u2019s proof with a different version of how the rear-end collision occurred and medical testimony negating or diminishing the damages appellant claimed he had sustained. A jury awarded appellant a $6,000 verdict.\nOn appeal, appellant argues his low verdict resulted from two trial errors that created a false picture for the jury and deprived appellant of a fair trial. First, appellant claims the trial court should have allowed evidence of appellee\u2019s liability coverage to rebut appellee\u2019s unsolicited testimony reflecting his limited financial condition. Second, appellant contends the trial court erred in failing to declare a mistrial when appellant\u2019s employer mentioned worker\u2019s compensation when being cross-examined by appellee\u2019s counsel.\nAppellant\u2019s first argument arises from testimony given by appellee in his defense and case-in-chief. Appellee\u2019s attorney asked some preliminary questions dealing with name, age and place of employment. Appellee answered each add, to the last question, replied that he was retired. His attorney then asked how long he had been retired, and he said, \u201cRetired May 1st of 1988. And now, whatever I have, if it is taken away from me, I can\u2019t replace. I\u2019m too old. I don\u2019t work anymore. I do occasionally part time, but not on a regular basis.\u201d\nImmediately after appellee\u2019s remarks, appellant approached the bench, and outside of the jury\u2019s hearing, informed the trial court that he believed the appellee opened the door for appellant to show the appellee had $50,000 in liability insurance. Appellee countered by arguing that, if appellant received what he sought in damages, appellee would be financially devastated, notwithstanding his $50,000 in liability coverage. Before rejecting appellant\u2019s request, the following colloquy took place between the parties\u2019 respective counsel and the court:\nTHE COURT: My impression, just when I heard it, the response of the witness was not responsive to your question.\nMR. SANDERS: [Defendant\u2019s attorney] Wasn\u2019t responsive to my question for sure.\nTHE COURT: I think it leaves an impression that this accident devastates him financially.\nMR. SANDERS: It will if he gets what they want. That part is not untrue.\nTHE COURT: It might. But when it leaves the impression he is out there by himself subject to that devastation. That\u2019s the problem I have with that.\nMR. HOLT: [Plaintiffs attorney] Something else about that, Your Honor, I have repeatedly made policy limit settlement demands and said we would accept that. His client already told him if he doesn\u2019t pay that and he gets hit here he is going to sue him.\nMR. SANDERS: That\u2019s totally outside the record here. I told you he didn\u2019t say that. In so many words he was going to go after the insurance company.\nTHE COURT: What are the limits on this?\nMR. SANDERS: It is $50,000. The thing is, first, I don\u2019t know why he said that.\nTHE COURT: I don\u2019t think it was responsive.\n* * *\nMR. HOLT: Your Honor, clearly there have been exceptions when the door is opened, and one of the major exceptions is when they get on there and testify about how catastrophic it is going to be to them.\nMR. SANDERS: We don\u2019t go into them. He said whatever he loses he won\u2019t be able to replace.\nMR. HOLT: No way to replace.\nTHE COURT: I think my impression of it was the jury was very attentive, as I have a peculiar view here, that he was talking about his life and being retired and how what little he had would be taken away from him.\nMR. SANDERS: He couldn\u2019t replace.\nTHE COURT: That\u2019s why it disturbs me a bit. Could I get ya\u2019ll to do this? I know we are going back here at 12:20. If you could call and just get a cite.\n* * *\nMR. SANDERS: I think what Gary is talking about, there\u2019s plenty of cases where somebody gets on the witness stand and you are quizzing them why they were hurting so bad, why they didn\u2019t get medical treatment and so forth, \u201cWell, I can\u2019t afford it.\u201d Then they say, \u201cWell, the thing is, if they had insurance, that would have paid for all that treatment and cost was not a factor.\u201d They will let you get into that. He said anything he lost, and to that extent he is saying a true statement. It is not the same thing as saying he didn\u2019t go see a doctor, even though I was dying in pain because I couldn\u2019t afford it when there was somebody that would be paying the bill had he went. There\u2019s a big difference there.\nTHE COURT: I understand what you are saying there. I still think \u2014 I may be wrong. It may be that the law is entirely different, but from my prospective [sic], it seemed that had an impact on the jury.\nAfter hearing the arguments of counsel, the trial court determined appellee\u2019s answer was unresponsive to his attorney\u2019s question. Rather than allowing the jury to know of appellee\u2019s liability insurance coverage, it instructed the jury that appellee\u2019s ability to satisfy a judgment should not be considered in arriving at a judgment.\nGenerally, it is improper in automobile accident cases for either party to introduce or elicit evidence of the other party\u2019s insurance coverage. York v. Young, 271 Ark. 266, 608 S.W.2d 20 (1980). The court has also said that the injection of insurance coverage is not proper unless it is relevant to some issue in the case. Pickard v. Stewart, 253 Ark. 1063, 491 S.W.2d 46 (1973). This court has allowed a plaintiff to be cross-examined about his insurance coverage after he gave misleading testimony regarding his financial inability to pay the full amount of damages his vehicle sustained as a result of the defendant\u2019s negligence. York, 271 Ark. 266, 608 S.W.2d 20 (1980). There York testified that, due to a shortage of personal funds, he was unable to fully repair his vehicle, when in fact insurance proceeds were available to him to cover the repairs. This court affirmed the trial court\u2019s ruling that York misled the jury, invited the rebutting questions and made the questions regarding his insurance relevant to the issues in the case. Id., 271 Ark. at 267, 608 S.W.2d at 22.\nThe York decision is in keeping with the well-settled rule that where one party introduces incompetent testimony, he cannot complain of the introduction of the same character of evidence directed to the same issue by the other party. Arkansas State Highway Comm\u2019n v. Pittman, 251 Ark. 709, 473 S.W.2d 924 (1971). The Pittman court further held that the rebutting evidence restricted to \u201csimilar evidence,\u201d the \u201csame subject,\u201d or to \u201canswering evidence\u201d in denial or explanation of the subject. In support of its holding, the court cited McCormick on Evidence which in relevant part reads as follows:\nIf the evidence,though inadmissible, is relevant to the issues and hence probably damaging to the adversary\u2019s 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.]\nEdward W. Cleary, McCormick on Evidence \u00a7 57, at 147-48 (3d ed. 1984).\nIn the present case, the trial court refused appellant the opportunity to answer appellee\u2019s misleading and incompetent testimony even though it believed appellee\u2019s remarks impacted adversely against the appellant. As mentioned above, appellee argued his remarks would not entirely be false, especially if appellant received an award substantially exceeding the $50,000 insurance amount. However, the trial court correctly noted that appellee\u2019s remarks left the false impression that appellee was \u201cout there by himself\u2019 and therefore subject to financial devastation. Obviously, appellee\u2019s remarks were totally false assuming the jury awarded $50,000 or less, which it did. The adverse impact of appellee\u2019s remarks cannot be minimized by assuming, as appellee would have us do, that he merely told the jury \u201cwhat he perceived to be the truth.\u201d Nor can we agree the trial court\u2019s cautionary instruction cured appellee\u2019s misleading statement or did anything more than draw special attention to appellee\u2019s personal ability (or inability) to satisfy a judgment in any amount.\nAs was the situation in York, appellee injected his limited personal resources into issues, casting doubt before the jury that he could afford or financially survive a judgment against him. By doing so, he portrayed a false, or at least a misleading picture, that he alone would absorb any loss or judgment, and under these limited and special circumstances, appellant had every right to answer appellee\u2019s portrayal by giving the jury the full and complete picture. The fact that appellee\u2019s remarks were volunteered and unsolicited by his own counsel cannot be used to justify the adverse or prejudicial impact they had upon the jury, and the trial court was wrong in so ruling.\nBecause the second evidentiary issue raised by appellant on appeal is unlikely to arise in the retrial of this matter, we need not reach it. For the reasons stated above, we reverse and remand this cause for a new trial.\nCorbin and Brown, JJ., dissent.\nDonald L. Corbin, Justice.\nThe majority opinion takes the \u201copening the door\u201d theory a step too far. Noticeably absent from the majority\u2019s reversal is any reference to the \u201cabuse of discretion\u201d standard that limits this court\u2019s review of a trial court\u2019s decision to exclude evidence. A.R.E. Rule 104(a); Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991); Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987); White v. Mitchell, 263 Ark. 787; 568 S.W.2d 216 (1978). While the majority cites cases in which this court has relied on the \u201copening the door\u201d theory to affirm the admission of otherwise inadmissible evidence, none of those cases reversed a trial court\u2019s decision to exclude such evidence.\nIn this case, the trial court was in the best position to weigh both the prejudicial effect of the defendant\u2019s inappropriate remark and the potential prejudicial effect of admitting evidence concerning the monetary limit of the defendant\u2019s insurance policy. While the majority quotes extensively from the bench conference regarding the defendant\u2019s unsolicited remark, the ultimate decision to exclude the insurance evidence indicates the trial court\u2019s belief that the prejudicial effect of informing the jury that the defendant carried a $50,000 insurance policy would outweigh any prejudice caused by the defendant\u2019s remark.\nThe trial court\u2019s ruling is certainly consistent with this court\u2019s holding that evidence of insurance coverage is unnecessary and irrelevant in cases where its admission \u201cis designed to skew the jury\u2019s thinking because of the presence or absence of a deep pocket.\u201d Hacker v. Hall, 296 Ark. 571, 576, 759 S.W.2d 32, 35 (1988). York v. Young, 271 Ark. 266, 608 S.W.2d 20 (1980), the case relied upon by the majority, is readily distinguishable from the present case. In that case, the plaintiff alleged that an accident caused by the defendant reduced the value of his truck by $3,000. He testified that the reason his repair bill was only $550 or $600 was because he could not afford to repair the remaining damage. We affirmed the trial court\u2019s decision to admit evidence of the plaintiffs collision insurance on the basis that such evidence served to refute the plaintiffs testimony that his truck had not been fully repaired.\nI believe that the basis for admission in the York case distinguishes that case from the situation in the present case. In the York case, the insurance evidence served to refute the plaintiffs claim regarding the extent of damage to his vehicle. Because the insurance evidence in York was relevant to determining the actual damages sustained by the plaintiff, the admission served a legitimate rebuttal purpose.\nIn the instant case, no such legitimate purpose existed for admission of appellee\u2019s liability limits. Appellant does not allege that the evidence was relevant to either defendant appellee\u2019s negligence or to his sustained damages. Instead, appellant wished to use evidence of the defendant\u2019s insurance coverage to illustrate the defendant\u2019s ability to satisfy a judgment. Given this court\u2019s repeated admonitions regarding the dangers of introducing insurance evidence, I disagree with the majority\u2019s decision that the trial court abused its discretion in refusing to allow introduction of the defendant\u2019s liability coverage.\nThe trial court\u2019s ruling is also consistent with this court\u2019s reasoning in Henson v. State, 239 Ark. 727, 393 S.W.2d 856 (1965). In Henson, a rape case, the defendant presented inappropriate evidence concerning specific instances of his good conduct. The state responded by introducing witnesses who testified that the defendant had raped them. This court found error, stating: \u201c[T]wo wrongs do not make a right. The evidence offered by appellant was clearly inadmissible, but his did not justify the state in offering inadmissible evidence.\u201d Id. at 732, 393 S.W.2d at 859. Relying on the Second Circuit case United States v. Beno, 324 F.2d 582 (2d Cir. 1963), the court quoted as follows:\nFor it makes little sense to insist that once incompetent evidence is erroneously admitted, the error must of necessity be compounded by \u201copening the door\u201d so wide that rebutting . . . collateral, inflammatory and highly prejudicial evidence may enter the minds of the jurors. In short, a small advantage improperly obtained does not compel the exaction of a gross disadvantage in penalty, particularly where a tarnished verdict is the inevitable result.\nId. at 588-89.\nIt has been suggested that the principle behind the \u201copening the door\u201d theory is to provide a device by which a trial error can be cured at the trial itself. 1 Wigmore on Evidence \u00a7 15, n. 2, p. 732 (Tillers rev. 1983). If this is so, I believe the discretion of the trial court must provide the linchpin behind the theory. I dissent because I disagree with the majority\u2019s disregard for the trial court\u2019s discretion.\nBrown, J., joins in this dissent.", "type": "majority", "author": "Tom Glaze, Justice. Donald L. Corbin, Justice." } ], "attorneys": [ "Gary Eubanks & Associates, by: James Gerard Schulze and William Gary Holt, for appellant.", "Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles, for appellee." ], "corrections": "", "head_matter": "Johnnie PETERS v. William PIERCE\n91-183\n823 S.W.2d 820\nSupreme Court of Arkansas\nOpinion delivered January 21, 1992\nGary Eubanks & Associates, by: James Gerard Schulze and William Gary Holt, for appellant.\nMatthews, Sanders, Liles & Sayes, by: Marci Talbot Liles, for appellee." }, "file_name": "0060-01", "first_page_order": 86, "last_page_order": 93 }