{ "id": 1604748, "name": "Leavon BEARDEN v. J.R. GROBMYER LUMBER CO. and Delsondro Sims", "name_abbreviation": "Bearden v. J.R. Grobmyer Lumber Co.", "decision_date": "1998-02-12", "docket_number": "97-571", "first_page": "378", "last_page": "385", "citations": [ { "type": "official", "cite": "331 Ark. 378" }, { "type": "parallel", "cite": "961 S.W.2d 760" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "322 Ark. 394", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447559 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "401" }, { "page": "652" }, { "page": "402" }, { "page": "652" } ], "opinion_index": 0, "case_paths": [ "/ark/322/0394-01" ] }, { "cite": "293 Ark. 276", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1869725 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/293/0276-01" ] }, { "cite": "324 Ark. 120", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9158760 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0120-01" ] }, { "cite": "308 Ark. 60", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904333 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "64" }, { "page": "822", "parenthetical": "emphasis supplied." } ], "opinion_index": 0, "case_paths": [ "/ark/308/0060-01" ] }, { "cite": "239 Ark. 727", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1730977 ], "weight": 2, "year": 1960, "pin_cites": [ { "page": "730", "parenthetical": "\"[T]wo wrongs do not make a right\"" }, { "page": "859", "parenthetical": "\"[T]wo wrongs do not make a right\"" } ], "opinion_index": 0, "case_paths": [ "/ark/239/0727-01" ] }, { "cite": "87 S.W. 135", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "year": 1905, "pin_cites": [ { "page": "137" } ], "opinion_index": 0 }, { "cite": "75 Ark. 251", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1502497 ], "weight": 2, "year": 1905, "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/ark/75/0251-01" ] }, { "cite": "235 Ark. 337", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1684803 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/ark/235/0337-01" ] }, { "cite": "237 Ark. 261", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1737895 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/ark/237/0261-01" ] }, { "cite": "Ark. Code Ann. \u00a7 27-50-804", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1994, "opinion_index": 0 } ], "analysis": { "cardinality": 626, "char_count": 11909, "ocr_confidence": 0.758, "pagerank": { "raw": 8.698881894605614e-08, "percentile": 0.4930858903356914 }, "sha256": "55ac7f842a014435b9b79eb8629c99ee2b3ec9704d48eaeb00b5dcb6a8d1868e", "simhash": "1:a06fa52017a8a771", "word_count": 2045 }, "last_updated": "2023-07-14T15:04:18.346145+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Brown, J., not participating." ], "parties": [ "Leavon BEARDEN v. J.R. GROBMYER LUMBER CO. and Delsondro Sims" ], "opinions": [ { "text": "David Newbern, Justice.\nThe 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\u2019s motion for a new trial. We affirm the judgment in favor of appellees J.R. Grobmyer Lumber Co. (\u201cGrobmyer\u201d) and Delsondro Sims.\nOn 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. Grobmyer Lumber Co., was headed east on Roosevelt. As the truck driven by Mr. Sims approached a curve to the right, Mr. Sims braked and \u201cgeared down\u201d due to the presence of a slower tractor-trader ahead of him. He moved to the inside lane to pass the tractor-trailor. Mr. Bearden was on the inside lane going west.\nAs he was braking or gearing down, Mr. Sims felt a \u201ctwitch\u201d 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\u2019s damaged truck crossing into the eastbound lane. Mr. Sims stopped, put out emergency signals, and called his employer.\nMr. Bearden\u2019s 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 Grobmyer, alleging that Mr. Sims had been negligent in the operation of the Grobmyer truck, which was undamaged by the collision.\nAt the trial, counsel for Mr. Bearden called Mr. Sims as his first witness. Mr. Sims was asked if the Grobmyer truck had crossed the center line into Mr. Bearden\u2019s 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\u2019s counsel, the following occurred:\nQ: Well, where on your truck was the contact with Mr. Bearden\u2019s vehicle?\nA: We never estabhshed 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 \u2022\u2014 they sent me on over to Georgia-Pacific.\nMr. Bearden\u2019s 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 Grobmyer. During the ensuing cross-examination the following occurred:\nQ: Mr Sims, you stayed and the police officer investigated this accident?\nA: I guess they did.\nQ: Okay.\nA: I never got, you know, anything from it.\nQ: You said, in answer to Mr. Nash\u2019s question, no citations were given?\nA: No, no citations.\nQ: He\u2019s asked you \u2014\nAt that point Mr. Bearden\u2019s counsel asked to approach the bench. He objected to the testimony concerning the officer\u2019s failure to issue a citation. Opposing counsel responded that the statement had been made initially in response to direct examination by Mr. Bearden\u2019s counsel. Mr. Bearden\u2019s 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\u2019s counsel said he would have to think about it.\nMr. Bearden\u2019s 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.\n1. Curative admissibility\nEvidence of a conviction or a bond forfeiture resulting from a violation of traffic laws is inadmissible in any civil action. Ark. Code Ann. \u00a7 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 \u201cmere charge,\u201d is inadmissible. 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\u2019s remark about not having received a ticket was inadmissible.\nMr. Bearden\u2019s 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.\nIn 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, \u201cWhere 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.\u201d 75 Ark. at 257, 87 S.W. at 137. Cf. Henson v. State, 239 Ark. 727, 730, 393 S.W.2d 856, 859 (1960) (\u201c[T]wo wrongs do not make a right\u201d). 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\u2019s incompetent and inadmissible statement implying that he was \u201calone\u201d in his defense and could not replace that which would be taken from him.\nIn the Peters case we cited, with approval, the following language from E.W. Cleary, McCormick on Evidence, \u00a7 57, at 147-148 (3d ed. 1984):\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.]\nPeters v. Pierce, 308 Ark. at 64, 823 S.W.2d at 822 (emphasis supplied.)\nHere, 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\u2019s 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 Grobmyer, to which Mr. Bearden\u2019s counsel did object, could have been prevented.\nThe objection presumably and properly would have been that Mr. Sims\u2019s statement about the failure to issue a traffic ticket was, as Mr. Bearden\u2019s counsel later argued to the Trial Court and argues in this appeal, not responsive to the question he had asked.\nWe 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\u2019s 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\u2019s offer to admonish or instruct the jury to disregard the officer\u2019s testimony.\n2. New trial\na. Miscarriage of justice\nMotions for new trial are governed by Ark. R. Civ. P. 59, which provides in part as follows:\n(\u0430) 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; . . . (\u0431) the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to law; ....\nIn his motion for a new trial, Mr. Bearden contended that the verdict in favor of Mr. Sims and Grobmyer constituted a \u201cmiscarriage of justice\u201d 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 \u201cmiscarriage of justice\u201d 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.\nThe 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.\nMr. Bearden\u2019s 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.\nb. Clear preponderance\nMr. 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\u2019s verdict.\nWhen 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.\nPatterson v. Odell, 322 Ark. 394, 401, 909 S.W.2d 648, 652 (1995). \u201cIt is within the province of the jury to believe or disbelieve the testimony of any witness.\u201d Id. at 402, 909 S.W.2d at 652.\nGiven the fact that the only evidence as to what happened to cause the accident was Mr. Sims\u2019s version of the facts, we cannot say that the verdict in favor of Mr. Sims and Grobmyer was clearly against the preponderance of the evidence.\nAffirmed.\nBrown, J., not participating.", "type": "majority", "author": "David Newbern, Justice." } ], "attorneys": [ "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." ], "corrections": "", "head_matter": "Leavon BEARDEN v. J.R. GROBMYER LUMBER CO. and Delsondro Sims\n97-571\n961 S.W.2d 760\nSupreme Court of Arkansas\nOpinion delivered February 12, 1998\n[Petition for rehearing denied March 19, 1998.]\nJ.R. Nash, for appellant.\nHuckabay, Munson, Rowlett & Tilley, P.A., by: Jim Tilley and Julia L. Busfield, for appellee J.R. Grobmyer Lumber Co.\nBrown, J., not particpating." }, "file_name": "0378-01", "first_page_order": 400, "last_page_order": 407 }